Background-

Fire materially, substantially and completely destroyed the dwelling structure at 57 Mount Pleasant Street, Billerica, Massachusetts on December 27, 1992. On December 28, 1992, the Building Inspector of the Town of Billerica, Massachusetts ordered the dwelling's owners, Anthony and Mary Ann Passalaqua, to secure and remove the remains of the structure at 57 Mount Pleasant Street, Billerica, Massachusetts within 14 days. On or before January 5, 1993, the Building Inspector made a written determination that the structure at 57 Mount Pleasant Street had been destroyed by more than sixty-five percent of its reproduction cost and, in writing, advised the Passalaquas on the proper appeal procedure if they wished to challenge her decision.

Building Permit Request-

On January 5, 1993, the Building Inspector denied Anthony and Mary Ann Passalaqua's application for a building permit for the reconstruction of a four-family dwelling in a single family residence zone at 57 Mount Pleasant Street because the original dwelling structure was destroyed by fire in excess of sixty-five percent of its reproduction cost. This is now, and was then, a requirement of the Billerica Zoning By-Law. In this case, the By-Law would require full conformance and only permit a single family dwelling to replace the damaged building because the original non-conforming four-family building was destroyed by more than sixty-five percent of its reproduction cost.

Initial Board of Appeal Proceedings-

The Passalaquas did not challenge the decision of the Building Inspector (i.e., which determined that the 57 Mount Pleasant Street dwelling had been destroyed by fire more than sixty-five percent of its reproduction cost) through the proper appeal procedure as provided by Massachusetts General Laws. Such an appeal must have been undertaken within 30 days of the Building Inspector's decision on January 5, 1993. Instead, the Passalaquas passed over this option and the Passalaqua's sought a variance from the Billerica Board of Appeal to construct a replacement four-family dwelling at 57 Mount Pleasant Street. In a March 3, 1993 letter to the Board of Appeal, the Billerica Town Counsel advised the Board of Appeal that "the Board is not authorized to grant the requested variance." The Board of Appeal ignored Town Counsel without comment and the Board of Appeal granted the Passalaqua's variance over Town Counsel's objections.

First Middlesex County Superior Court Appeal-

The case was appealed by Margaret B. Ingraham and Joseph M. Dougherty to the Middlesex Superior Court. On June 1, 1994, the Superior Court, acting on the Plaintiff's motion for "Summary Judgement" , remanded the case back to the Billerica Board of Appeal for further proceedings. The basis of the Superior Court's seven page ruling was that there was a clear lack of evidence to support the Board of Appeal's decision, as required by Massachusetts General Laws, and that the Board of Appeal had not properly given the Plaintiffs the opportunity to be heard and submit evidence in opposition to the Board's decision.

Subsequent Board of Appeal Proceedings-

On June 22, 1994, the Board of Appeal held further proceedings and determined, using a mathematical formula inconsistent with the Billerica Zoning By-Law, that the original non-conforming four-family building was not destroyed by more than sixty-five percent of its reproduction cost even though the building was completely destroyed. However, this determination still failed to address the request by the Superior Court to provide the statutory reasons for granting the variance as required by Massachusetts General Laws. The Board of Appeal continued to ignore the advise of Town Counsel, and again, the Board of Appeal voted to grant (4-1) the variance .

Second Middlesex County Superior Court Appeal-

The case was subsequently appealed by two abutters, Joseph M. Dougherty and Margaret B. Ingraham, to the Middlesex County Superior Court. The Town of Billerica (the Board of Appeal or Town Counsel) failed to present a case to the Superior Court or in any way defend the Board of Appeal's decision. The Superior Court heard the appeal and concluded in its "Rulings of Law and Discussion" that the plaintiffs were correct in arguing that the Board of Appeal was not justified in granting a variance. The basis of the Superior Court's fifteen page ruling was that the Board of Appeal had completely failed to produce any justifiable findings to satisfy the minimum requirements of Massachusetts General Laws . In fact, of the three conjunctive tests (all three must be met) required by the Massachusetts General Laws, the Board of Appeal had amazingly satisfied none of them. Thus the Board clearly exceeded its statutory authority , and the Superior Court ruled that the Board of Appeal was not authorized to issue a variance. The appealing abutters agreed with the Superior Court that the Board of Appeal failed to make any of the requisite findings to justify their decisions in granting the variance. However, the Superior Court wandered off the main issue in an additional "Ruling of Law and Discussion" that the Passalaquas were authorized to reconstruct a legally non-conforming structure without a variance. The Superior Court surprisingly ruled, using a new mathematical formula comparing assessed values from the Board of Assessors and reproduction costs, that the 57 Mount Pleasant Street structure was not destroyed by more than sixty-five percent of its reproduction costs, even though the Superior Court also ruled that "In this case, the building was completely destroyed." (Re: page 13, paragraph 2, of its brief, Docket #MICV93-01942). The abutters obviously disagreed with this portion of the Superior Court's paradoxical rulings and new mathematical formulas. The fact that the Billerica Zoning By-Law makes no mention of using assessed values to determine anything, and that Assessment practices and Zoning are mutually exclusive under Massachusetts General Laws, were both compelling issues. And this, if left unchallenged, would have resulted in a new four-family dwelling being built by the Passalaquas in a one family residence zone and historic area without a variance. This was not in the public interest or the best interest of the neighborhood and clearly was a dangerous new precedent that had state-wide impact.

Appeal to the Appeals Court of the Commonwealth of Massachusetts-

An abutter, Joseph M. Dougherty, filed a Pro Se appeal to the Massachusetts Appeals Court. The key issue in argument was that although the Superior Court had correctly identified that the building was totally destroyed by fire in December 1993, the Court had failed to rule that the Passalaqua's building was destroyed by more than sixty-five percent of its reproduction costs. The Appeals Court subsequently agreed to hear the case via briefs and oral arguments. The Appeals Court issued its rulings on July 26, 1996 and agreed with the Superior Court that the Board of Appeal "...had failed to make the requisite findings to justify the granting of a variance...", and therefore the Board of Appeal had acted in excess of its authority. The Appeals Court, in its five page decision, also decided that because the structure had been destroyed by more than sixty-five percent of its reproduction cost, the formula developed by the Superior Court to determine the percent of damage was irrelevant to the issue of whether the Passalaqua's non-conforming structure could be rebuilt after the December 1993 fire. By rejecting the Superior Court's mathematical formula, the Superior Court's ruling that a variance was not required was also rejected.

Summation-

The Appeals Court of Massachusetts found that the language and purpose of the Billerica Zoning By-Law was that the Passalaqua's four-family dwelling could not be rebuilt. The Superior Court was reversed. This was because the entire building was destroyed and thereby obviously exceeding sixty-five percent of its reproduction costs. On the matter of the variance, the Superior Court's judgment "...annulling the decision of the Board of Appeal as in excess of its authority." was entered and so ordered. No appeal to the Supreme Court was filed and the case is closed.

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