Lussier v. Zoning Board of Appeals of Peabody

854 N.E.2d 1236, 447 Mass. 531, 2006 Mass. LEXIS 659
CourtMassachusetts Supreme Judicial Court
DecidedOctober 12, 2006
StatusPublished
Cited by6 cases

This text of 854 N.E.2d 1236 (Lussier v. Zoning Board of Appeals of Peabody) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lussier v. Zoning Board of Appeals of Peabody, 854 N.E.2d 1236, 447 Mass. 531, 2006 Mass. LEXIS 659 (Mass. 2006).

Opinion

Cordy, J.

The zoning board of appeals of Peabody (board) granted a variance that permitted a homeowner to construct “an addition (22' x 22' attached garage)” with a sideyard setback of one foot, instead of the required twenty feet. Several years later, the homeowner sought and obtained a building permit to construct a second story on the garage that exceeded its “22' x 22' ” footprint and was to be used as living space. After the second-story addition was built, the board ruled that a new or modified variance was required. That ruling was reversed by a Superior Court judge, who entered summary judgment for the homeowner. We reverse, concluding that the board properly imposed conditions on the variance, apparent on its face, limit[532]*532ing the use of the addition to that of a garage, and its size to be twenty-two feet by twenty-two feet. Construction of an addition contrary to these conditions requires a new or modified variance.

1. Background. The following facts are not disputed in the summary judgment record. In 1995, the owner of a parcel of land, 719 Lowell Street, obtained a variance allowing construction of a garage attached to his residence. Located in an R-l zoning district, the land was subject to an ordinance requiring a twenty-foot sideyard setback from the property fine. The variance specifically permitted the construction of “an addition (22' x 22' attached garage) showing a left side yard of 1 feet rather than 20 feet required.” Plans submitted with the application for the variance showed a one-story, two-vehicle garage. The plans were neither attached nor incorporated by reference into the variance decision. Kenneth Lussier purchased the land in July, 1996, and subsequently built the garage as permitted by the variance. In October, 2003, Lussier applied for and received a building permit for the construction of a second story above the attached garage. As built, this second story exceeds the twenty-two foot by twenty-two foot footprint of the garage.2 The second story was built for and is used as living space.3 The second-story addition does not implicate (or violate) any rule of the city of Peabody zoning ordinance other than the twenty-foot side-yard requirement for which the original variance had been granted.4

Ronald A. Sheehan and Catherine E. Sheehan own the [533]*533property abutting Lussier’s left sideyard. The Sheehans opposed the building of the second-story addition to Lussier’s garage in 2003 and made written demand on the Peabody building inspector for an enforcement action prohibiting its construction. The building inspector refused to take the action and the Sheehans appealed to the board. Meanwhile, construction of the addition proceeded. The board granted the Sheehans’ requested relief on the grounds that the second-story addition violated the sideyard requirement, as well as the terms and conditions of the 1995 variance that was granted for an attached twenty-two foot by twenty-two foot garage, and that the second-story addition exceeded the scope of relief requested in the original public hearing for the 1995 variance. The board ruled that the addition required a new variance or modification of the previous variance and overturned the building inspector’s refusal of an enforcement action. Lussier appealed to the Superior Court pursuant to G. L. c. 40A, § 17.5

Lussier moved for summary judgment requesting that the judge vacate the board’s decision and affirm the building inspector’s underlying decision permitting construction. The board and the Sheehans opposed summary judgment on the grounds that the dimensions and use stated in the variance were conditions on which it was granted and a limitation on further expansion absent a new variance. Following argument, the Superior Court judge entered summary judgment for Lussier, vacating the board’s decision and affirming the decision of the building inspector. The judge did not explain the basis of his ruling granting summary judgment.

The board and the Sheehans appealed from the judgment, and we transferred the case from the Appeals Court on our own motion.

2. Scope of the 1995 variance. In granting a variance, a board may “impose conditions, safeguards and limitations both of [534]*534time and of use, including the continued existence of any particular structure.” G. L. c. 40A, § 10. Variances are not allowed as a matter of right and should be “sparingly granted.” Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404, 408 (1995), quoting Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 531 (1990). Consequently, the language of a variance “is to be construed against the individual requesting the variance, rather than against the granting authority.” DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 347 (1985). Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 206 (2005) (“Where there is ambiguity on the face of a variance decision, it should be resolved against the holder of the variance”). Read in this light, the 1995 variance, on its face, imposes conditions on the variance. It limits the use to that of a “garage,” limits the size to “22' x 22',” and requires that it be “attached” to the house.6

The term “garage” is not defined in the zoning ordinance. “[W]ords undefined by zoning laws and ordinances are to be construed in accordance with common understanding and usage.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 361 n.16 (2001), citing Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188, 191 (1960), and Langevin v. Superintendent of Pub. Bldgs. of Worcester, 5 Mass. App. Ct. 892, 892 (1977), and cases cited. A “garage” is generally accepted to be a place to store motor vehicles and household items. See Building Inspector of Falmouth v. Gingrass, 338 Mass. 274, 275 (1959) (building permit authorizing garage on single-residence lot did not permit storage of seaplane but rather of automobiles); Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 222 (1911) (“garage is defined as ‘a stable for motor-cars’ ”).7 We have no difficulty concluding that the 1995 variance was limited to the construction of a building to be used for the storage of motor vehicles. The construction of a second floor for use as [535]*535living space violates the limiting condition of the variance that the addition be a “garage.”

The variance also specified dimensions of twenty-two feet by twenty-two feet. While the first story satisfies that condition, anything beyond that footprint exceeds the scope of the variance. Regardless whether the second story overhangs the garage in the front or in the rear, or both, it exceeds the footprint permitted by the variance.

In order for conditions on a variance to be binding, they must be set forth in the variance decision itself. Mendoza v. Licensing Bd. of Fall River, supra at 205 (“Purchasers of property or their attorneys are not expected or required to look behind the face of recorded variance decisions to ascertain their effective scope . . .”). 8 P.J. Rohan, Zoning and Land Use Controls § 43.03[2] (2005) (“Conditions must be sufficiently definite to apprise both the applicant and interested landowners of what can and cannot be done with the land”). Rochester Historical Soc’y, Inc. v. Crowley,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fanning v. Bd. of Zoning Appeal of Cambridge
102 N.E.3d 1031 (Massachusetts Appeals Court, 2018)
Furlong v. Zoning Board of Appeals of Salem
64 N.E.3d 268 (Massachusetts Appeals Court, 2016)
Timperio v. Zoning Board of Appeals
993 N.E.2d 1211 (Massachusetts Appeals Court, 2013)
Spear v. Board of Appeals
929 N.E.2d 340 (Massachusetts Appeals Court, 2010)
Cornell v. Board of Appeals
892 N.E.2d 746 (Massachusetts Appeals Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
854 N.E.2d 1236, 447 Mass. 531, 2006 Mass. LEXIS 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lussier-v-zoning-board-of-appeals-of-peabody-mass-2006.