NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-120
GORDON C. ANDREWS
vs.
ZONING BOARD OF APPEALS OF HALIFAX & others1 (and two consolidated cases2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
These consolidated cases concern a proposed twelve-unit,
multifamily project in the town of Halifax, known as Amanda's
Estates. A judge of the Land Court concluded that the site plan
approval issued in 2014 required the trustees of the Party Trust
(developer) to formally subdivide the property, and the 2019
modified plan submitted by the developer did not comply with the
town's zoning bylaw (bylaw), which also required formal
subdivision of the site. Judgments entered directing revocation
1Corrie S. Merritt, Amanda Monti, and Edward Johnson, as trustees of the Party Trust.
2Andrews vs. Zoning Bd. of Appeal of Halifax & another; Andrews vs. Zoning Bd. of Appeals of Halifax & others. of building permits issued by the town's building inspector in
2020, along with a certificate of occupancy. For the reasons
that follow, we affirm in part, vacate in part, and remand for
the entry of orders directing the zoning board of appeals
(board) to reinstate the 2020 building permits and the
certificate of occupancy.
Background. 1. The site and the bylaw. The site is in
the town's agricultural-residential (AR) zoning district and
contains 12.5 acres. The developer proposes to construct twelve
units of multifamily housing, which are allowed by special
permit in the AR district. The units will be accessed from Elm
Street, a public way, by Amanda's Way, a private way or driveway
shown on the plan as terminating in a large cul-de-sac. At the
heart of this controversy are several pivotal provisions of the
bylaw applicable to multifamily developments. We set them out
in detail.
The definition section of the bylaw defines a "multifamily
dwelling" as "[a] building intended and designed to be occupied
by more than one (1) family, living independently in separate
units." It defines "multifamily development" as a "development
of three (3) or more dwelling units on a single lot of land
under one (1) ownership of not less than ten (10) acres in size"
(emphasis added). The bylaw defines "lot" as "[a] single area
2 of land in one (1) ownership defined by metes and bounds or
boundary lines in a recorded deed or recorded plan" (emphasis
added).3
After listing "multifamily dwellings" as a use allowed in
the AR district by special permit in its schedule of use
regulations, § 167-7(D)(2) of the bylaw more specifically
provides that "multifamily developments" are also allowed by
special permit from the board in the town's AR district.
Section 167-12(A) of the bylaw provides density restrictions for
multifamily developments, including that "[t]he number of units
in a multifamily development shall not exceed the number of
acres in the parcel on which they are to be built," and that
"[t]he minimum parcel size shall be ten (10) acres" -- the same
as provided in the definition of "multifamily development." In
addition, minimum front and rear setbacks are set at seventy-
five feet and one hundred feet, respectively, and "there shall
be at least one hundred (100) feet between any two (2)
buildings."4 There is no express frontage requirement. Section
3 "Recorded" means "[r]ecorded or registered in the Plymouth County Registry of Deeds, or a recorded title to a parcel of land disclosed by any or all pertinent records."
4 In addition, there is a required thirty-foot minimum side yard between the development and adjacent properties.
3 167-12(A)(7)(c), however, requires "adequate space" in front of
each building, for fire apparatus to approach.
To summarize, by definition "a multifamily development"
must be three or more units; on a "single lot of land" of at
least ten acres and described in a recorded deed or recorded
plan; the number of units may not exceed the number of acres of
the parcel; and there must be one hundred feet between
buildings.
To complicate matters, the term "multifamily development
complex" is introduced for the first time in § 167-7(D)(2)(a),
which the judge and parties refer to as "[s]ubsection (a)."
Subsection (a) provides that "any multifamily development
complex proposed hereunder shall locate each building on an
individual lot which shall have continuous frontage on a public
or private way." The term "complex" is not defined in the bylaw
and the few references in the bylaw to a "multifamily
development complex" shed little light on its definition.
2. Procedural history. The procedural history is
undisputed. The proposed project first received site plan
approval from the town's planning board on September 18, 2014,
and a special permit from the board in 2015, neither of which
was appealed. Although the original plans showed one large lot
and six duplex-buildings, at the request of the planning board,
4 the site plan was amended to show, with solid lines, each
building on an individual lot (Lots A-F). However, there exists
no recorded plan showing those lots. The board issued a special
permit pursuant to a revised site plan that moved the sidewalk
along Amanda's Way away from the Andrews property, but still
showed Lots A-F.
After considerable site work including construction of
Amanda's Way had been accomplished in reliance on the site plan
approval and special permit, the building inspector granted four
building permits for two duplexes in May 2017. The plaintiff,
abutter Gordon C. Andrews, appealed to the board from the grant
of the building permits, arguing that Lots A-F were not legal
lots because they were not shown on a plan recorded in the
registry of deeds and that the lot had to be formally
subdivided. Andrews also requested that the building inspector
enforce the zoning bylaw which, he asserted, required legal
lots. The building inspector upheld the building permits and
denied Andrews's enforcement request, and the board affirmed
both decisions. Thereafter, Andrews commenced an action in the
Land Court against the board and the building inspector, seeking
review of those decisions (action 17 MISC 000507). The
developer was allowed to intervene. Without waiting for the
5 results of that appeal, the developer proceeded to construct
four units (two duplexes).
The judge remanded to the board for consideration of two
issues, (1) whether the 2014 site plan and 2015 special permit
required the developer to locate each proposed building on a
"separate lot" and (2) whether the project meets the bylaw's
definition of a "multifamily development." The board's decision
after remand concluded that the proposed project meets the
definition of a "multifamily development;" that neither the
bylaw, the site plan approval, nor the special permit require
that the property be formally subdivided into individual lots;
and that the individual-lot requirement contained in the bylaw
is only to demonstrate that the project does not exceed the
number of dwellings allowed.
Proceedings continued in the Land Court after the board
reached its decision on remand, and on cross motions for summary
judgment, the judge granted partial summary judgment to the
developer on the narrow issue whether the provisions of § 167-
10(B) of the bylaw -- specifically the general frontage
requirement for the AR district -- apply to the proposed
project. The judge concluded that the specific provisions of
§ 167-12(A) replace the general provisions of § 167-10(B).
Summary judgment was denied on the remaining issues and trial
6 proceeded on two issues: (1) whether the 2014 site plan
approval required subdivision of the site prior to issuing
building permits; and (2) whether the special permit required
such subdivision. After trial, the judge answered the first
question in the affirmative and entered a judgment, dated
December 16, 2019, ordering that the building permits be
revoked. The judge did not decide the issue whether the bylaw
requires formal subdivision to create individual lots. Both
parties appealed -- Andrews from so much of the judgment that
concluded the general frontage requirements for the AR district
do not apply.
In 2019, the developer applied to the planning board and
then the board for modifications of the site plan and special
permit. Those modifications reconfigured the lots, placing each
constructed duplex on a "lot" (lots 1 and 3) and placing two
duplexes connected by a breezeway on each of two other lots
(lots 2 and 4). The site plan bore a note stating that "All lot
designations and lot lines shown on plans are for dimensional
purposes only." The planning board approved the modified site
plan, and the board approved the special permit based on the
modified site plan. Andrews filed a second action in the
Superior Court appealing from the board's modification of the
special permit (action 2083CV000256), and the same Land Court
7 judge was designated as a justice of the Superior Court for
purposes of deciding it.
On March 16, 2020, the building inspector issued four
modified building permits for each of the constructed units, and
a certificate of occupancy for one of the units ("the 2020
permits"). Andrews commenced a third action on September 11,
2020, appealing in count one from the board's denial of his
challenge to the 2020 permits and in count two challenging the
denial of Andrews's enforcement request (action 20 MISC 000372).
Andrews's complaint also sought a declaratory judgment that
subsection (a) applies to the project. Expressly seeking to
interpret the bylaw "to give effect 'to all its provisions, so
that no part will be inoperative or superfluous,'" Shirley
Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461
Mass. 469, 477 (2012), quoting Connors v. Annino, 460 Mass. 790,
796 (2011), the judge concluded that a "'multifamily development
complex' under the By-Law is a subset of multifamily
developments" and that a "complex" is a multifamily development
comprised of two or more buildings. The judge used the
dictionary term for "complex," which is "[c]onsisting of
interconnected or interwoven parts; composite; compound," and
concluded that the term "complex" distinguished between single-
building multifamily developments and those comprised of two or
8 more buildings. The judge concluded that if the multifamily
development is sited within one building, it can ignore
subsection (a); if the development encompasses multiple
buildings, the developer must comply with subsection (a). Once
again, the Land Court vacated the permits, by two judgments
dated August 23, 2022. The developer appealed, and the three
appeals were consolidated in this court for briefing and
decision.
Discussion. 1. Timeliness. The developer first argues
that because Andrews did not appeal from the 2015 special permit
and the 2014 site plan approval, his challenge to the 2017
building permits were in fact a belated attempt to appeal from
the approval of the site plan and special permit. In the
circumstances of this case, where Andrews reasonably could have
interpreted the 2015 special permit and 2014 site plan as
requiring subdivision of Lots A-F, we discern no impediment to
Andrews's challenge of the building permits, issued without
subdivision approval -- Andrews was in effect seeking
enforcement of the 2015 special permit.5
2. Application of subsection (a). "[B]ecause the Land
Court judge decided [this issue] on cross motions for summary
5 We need not reach the issue whether a failure to appeal from a special permit and site plan makes a challenge to a subsequent building permit untimely.
9 judgment, we give no deference to [his] decision" (citation
omitted). Pinecroft Dev., Inc. v. Zoning Bd. of Appeals of W.
Boylston, 101 Mass. App. Ct. 122, 128 (2022). "We review
interpretations of zoning bylaws de novo and according to
traditional rules of statutory construction." Id. Where "terms
are undefined or otherwise ambiguous, we will defer to a local
zoning board's reasonable interpretation" unless "it is
inconsistent with that provision's purpose or the bylaw as a
whole." Id. "[A] judge must review with deference legal
conclusions within the authority of the board," at least in part
because of the board's "special knowledge of 'the history and
purpose of its town's zoning by-law'" (citation omitted).
Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of
Appeal of Billerica, 454 Mass. 374, 381 (2009). "[T]he decision
of a board 'cannot be disturbed unless it is based on a legally
untenable ground' or is based on an 'unreasonable, whimsical,
capricious or arbitrary' exercise of its judgment in applying
land use regulation to the facts as found by the judge"
(citation omitted). Id.
The judge found that subsection (a) "means what it says:
each building in a multifamily development complex must be on an
'individual lot which shall have continuous frontage on a public
or private way,'" and that the project does not comply with that
10 requirement, as there is no recorded plan that shows each of the
development's existing and proposed duplexes on an individual
legal lot. The board's view, in its decision, was that the
individual-lot requirement is simply to show the density and not
a requirement that formal subdivision is necessary. Thus, on
appeal, the developer focuses on the requirements of subsection
(a) and whether it must obtain subdivision approval and record a
subdivision plan showing individual lots for each building.
We focus, instead, on whether subsection (a) even applies
to the proposed project. We examine the definition of
"multifamily development" as compared to "multifamily
development complex" as those terms are used in the bylaw. We
do so because the "lot" requirements for "multifamily
developments" as they are specifically defined in the bylaw and
the "lot" requirements for a multifamily development "complex"
are different. By definition, a multifamily development
consists of three or more dwelling units "on a single lot of
land under one (1) ownership of not less than ten (10) acres in
size" (emphasis added). Subsection (a), applicable to a
multifamily development "complex," requires each building to be
placed on an individual lot with frontage on a public or private
way. As the judge concluded, reasonably read, a "multifamily
development" and a "multifamily development complex" are
11 different in some meaningful way and subsection (a) applies only
to "multifamily development complex[es]." This is true because
if both the definition of multifamily development (requiring a
ten-acre lot minimum) and the individual-lot requirement for
each building contained in subsection (a) applicable to
multifamily development complexes are read together, each
building would have to be placed on an individual ten-acre lot
and each building would have to have three or more units. We
agree with the board that the town could not have intended such
an absurd result. If the individual-lot requirement were
applied, the 2014-2015 plans would not even show a "multifamily
development" because the individual lots would not contain three
or more units.
Quite simply, the town failed to define "complex." It is
true that the meaning of words used but not defined in a bylaw
are "construed in accordance with common understanding and
usage." Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass.
531, 534 (2006), quoting Davis v. Zoning Bd. of Chatham, 52
Mass. App. Ct. 349, 361 n.16 (2001). We depart from the judge's
interpretation, however, because common usage of "development"
and "complex" both encompass the potential for more than one
building. Here, that the "multifamily development" regulations
clearly envisioned the possibility of multiple buildings is
12 evident by the requirement of one hundred feet between
buildings, and that there be "adequate space in front of each
building for fire apparatus to approach the buildings." Thus,
we cannot conclude that a multifamily development complex simply
means a multifamily development with more than one building.
The record is barren of any evidence of the town's intent
in using the term "complex." It may have intended to
distinguish multifamily developments of a specific size, or
which include a variety of structures including pools, a club
house, or function facilities, or even multifamily developments
that could not meet the ten-acre minimum or proposed less-than-
three dwelling units. However, the modified development meets
all of the criteria for a "multifamily development" in terms of
lot size and density -- it is twelve acres and it proposes
twelve units.6 We conclude that where the ordinance clearly
defines "multifamily development(s)" and the proposed project
fits the definition, and "complex" is undefined and there has
been no concrete reason given to compel the conclusion that the
proposed plans shows a "complex" as that term is used in the
bylaw, the board reasonably granted the modified 2020 special
6 The 2019 site plan that was approved by the 2020 special permit shows two duplexes connected by a breezeway. The Land Court judge noted that the parties did not brief whether the connected duplexes constitute a single building. Where it was not briefed below or on appeal, we consider the issue waived.
13 permit and the building inspector reasonably granted the
associated building permits and certificate of occupancy. The
bylaw does not require that each building of a "multifamily
development" be shown on an individual lot with frontage on a
public or private way.
We are aware that the board's interpretation of the
multifamily provisions of the bylaw has varied, and that at
least initially, the board and the planning board required that
individual lots be shown for each building for the project at
issue. Town counsel also concluded that the individual-lot
requirement applies to this project. We conclude, however, that
any inconsistency in the interpretation of the bylaw stems from
the town's failure to define "complex" while adopting seemingly
conflicting lot size requirements.7
3. Frontage requirement. The board and the judge
concluded that the bylaw provisions regulating multifamily
developments do not contain a frontage requirement. Andrews
argues that the judge erred in not applying the general frontage
requirement applicable in the AR district, which is 150 feet of
continuous frontage. Where the bylaw provides general density
regulations and then specific density regulations for a
7 Andrews suggests that the board has treated similarly situated applicants differently but makes no specific claim based on disparate treatment.
14 multifamily development that includes no frontage requirement,
we cannot say the judge erred in applying the more specific
provision. See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215
(1997). Moreover, the conclusion that there is no frontage
requirement is supported the provision requiring adequate
frontage for fire trucks, which would be unnecessary if the 150-
foot frontage requirement applied to multifamily dwellings. We
discern no error in the board's reasonable interpretation of its
bylaw.
Conclusion. We agree with the judge that the 2014 site
plan, showing what purported to be legal individual lots, and
2015 special permit based on that site plan, contemplated formal
subdivision of the lot to create Lots A-F. Thus, in action 17
MISC 000507, the judgment dated December 16, 2019, is affirmed.
As for the modified plan at issue in actions 2083CV000256 and 20
MISC 000372, we vacate the judgments dated August 23, 2022, in
which the judge concluded that the bylaw requires each building
to be on a subdivided lot and revoking the building permits,
certificate of occupancy, and site plan and special permit
decisions; and we remand those cases for entry of orders
reinstating the 2020 permits and certificate of occupancy. A
declaration shall enter that where a proposal meets the bylaw's
definition of a "multifamily development," the single-lot
15 requirement for multifamily development complexes does not
apply. We remand actions 2083CV000256 and 20 MISC 000372 to the
Land Court for the entry of orders consistent with this
decision.8
So ordered.
By the Court (Meade, Blake & Neyman, JJ.9),
Clerk
Entered: August 1, 2024.
8 Both Andrews's and the developer's request for costs and other relief are denied.
9 The panelists are listed in order of seniority.