| Home Page | Commonwealth of Massachusetts, Middlesex County Superior Court |
| Date: | June 30, 1995 |
| Case: | Ingraham & Dougherty v. The Board of Appeal |
| Docket: | MICV93-01942 |
| Location: | Town of Billerica, Massachusetts |
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 93-1942
MARGARET B. INGRAHAM and JOSEPH M. DOUGHERTY, Plaintiffs,
vs.
BILLERICA BOARD OF APPEALS, et al., [1] Defendants.
FINDINGS OF FACT RULINGS OF LAW AND ORDER
On January 17, 18 and 19, 1995, this matter was before the court
for trial, jury waived. In their complaint, brought pursuant to
the provisions of G.L. c. 40 A, s. 17, the plaintiffs challenge
the decision of the Billerica Board or Appeals ("the Board")
which, at least initially, purported to grant to defendants
Passalaquas a variance from two provisions of the Billerica
zoning by-laws. [2] In effect, the action of the Board from
which this appeal is taken would allow the reconstruction of a
what was formally a legal, non-conforming our-family residential
structure in a neighborhood ordinarily zoned for single
residential homes. The plaintiffs allege in their complaint that
such action exceeds the Board's authority in that G.L. c. 40A, s.
10 prohibits the construction of a multi-family dwelling in a
district zoned for single units unless such construction is
expressly authorized by a local by-law; that, in this case, there
is no local by-law which would allow construction of a
non-conforming building; and that, even if such construction were
permitted by reason of a variance, the Board did not make
findings required by G.L. c. 40 A, s. 10.
In their answer to the complaint, and in argument to this
Court, defendants Anthony R. Passalaqua and Mary Ann Passalaqua
("the Passalaquas"), take the position that, because damage to
their original structure did not exceed 65 percent of its
reconstruction cost, they should be permitted to rebuild the
four-unit non-conforming use structure that existed prior to
December, 1992; and that, in any event, the Board of Appeals
heard their case and granted them a waiver supported by the
evidence presented to the Board. [3]
The court disagrees with the Board of Appeals reasoning, but
affirms its decision to permit reconstruction of a legally
nonconforming structure, and remands this case to the Board to
ensure continued compliance with its zoning by-laws, particularly
with section 11D.
FINDINGS OF FACT
Based on the credible evidence, as well as all Inferences to
be drawn from that evidence the following facts are found:
1. The plaintiff, Margaret 3. Ingraham (Ingraham), resides
at 48 Mt. Pleasant Street, North Billerica, Massachusetts. The
Ingraham property is located diagonally across Mt. Pleasant
Street from the subject property. For that reason, she is a party
in interest as defined by GL. c. 40 A, s. 11, and an aggrieved
party as defined by G.L. c. 40 A, s. 17, i.e., a person who is and
will be directly, subsequently and adversely affected by the
variance purported to have been granted by the defendant Board.
2. The plaintiff, Joseph M. Dougherty (Dougherty), resides
at 53 Mt. Pleasant Street, North Billerica, Massachusetts. The
Dougherty property is located directly across the street from the
subject property. For that reason, he is also a party in interest
as defined By G.L. c. 40 ., s. 11, and an aggrieved party as
defined by G.L. c. 40A, S. 17.
3. The defendant Board of Appeal is the duly constituted
Zoning Board of Appeals for the Town of Billerica and, as such,
is the permit granting authority for purposes of enforcing the
Commonwealth's Zoning Act, G. L. c. 40 A. Defendants Anthony R.
Passalaqua and Mary Ann Passalaqua Reside at 12 Laurie Ann Lane,
Billerica, Massachusetts, and or the past eight years have owned
the subject premises at 57 Mt. Pleasant Street, North Billerica,
Massachusetts.
4. The two and one-half story structure at 57 Mt. Pleasant
Street was originally constructed in 1862 as a single residence
of particular style and grace. [4] Built in the Victorian
manner, it had gabled roofs, marble fireplaces, mahogany
staircases, hardwood floors and decorative moldings throughout
the structure. Over the years, the home had been converted from a
single family home to a two-family residence and -hen to a
four-family residence. When the Passalaquas purchased the house
in March 1976, it was carried on the town property list as a
grandfathered, legal, non-conforming structure. Such designation
was necessary because the zoning district in which the structure
was located, a rural residential district, is not zoned for
multi-family use.
5. On December 27, 1992, a devastating fire, originating in
a mattress in a first floor apartment, essentially destroyed the
building. According to testimony from the fire chief of the Town
of Billerica, when the fire was extinguished, all that was left
of the structure were the four exterior walls, four
free-standing chimneys and an exterior stairway attached to one
of the walls. The interior of the structure was gutted. The roof
had collapsed.
6. On the day of the fire, the town building inspector was
ailed to the scene. Because she was concerned for the safety of
passerby and onlookers, she immediately ordered the removal of
the four free-standing chimneys the removal or the outside
stairway, and the boarding up of the building. Two days later,
because she continued to be concerned about the structural
integrity of the walls and foundation of the building's remains,
she condemned the structure and ordered it removed. Her order
was complied with shortly after a demolition permit was issued on
January 26, 1993.
7. The monetary value of the building at the time of its
destruction was $130,200.00. This finding is based on the
building's assessed value as reflected in the Town's 1990
assessment of the property.
8. Based on the credible testimony of Peter M. Blaisdell, a
registered architect, would cost $414,140.00 to reproduce the
building.
9. Where relevant, Section 11C of the Billerica zoning by-
laws provides that if a lawful, non-conforming building or
structure in the town is destroyed or damaged by fire to an
extent exceeding 65 percent of its reproduction costs, it may not
be rebuilt, repaired, reconstructed or altered. Among her
duties, the town's building inspector has the responsibility of
determining whether a previously non-conforming building has been
destroyed or Damaged to an extent exceeding 65 percent of its
reproduction costs. Accordingly, in this case, the building
inspector did evaluate the cost of reproduction and did determine
that, in this case, the structure at 57 Mt. Pleasant had been
damaged by more than 65 percent. In her evaluation, the
inspector found that, prior to its total removal by way of
demolition, and with the possible exception of the back wall,
there was no part of the structure that did not have to be
reproduced
10. On January 5, 1993, the Passalaquas applied to the
building commissioner for permits to begin reconstruction of the
four-story dwelling; however, because it was her opinion that
reconstruction of the non-conforming structure was not allowed by
reason of section 11C, the commissioner refused to issue the
permit. Instead, the commissioner presented the Passalaquas with
what she described at the trial as a "referral" slip and directed
them to apply to the Zoning Board of Appeal for a variance.
11. On January 28, 1993, the Passalaquas filed a petition to
the Board of Appeal seeking a variance of Section 11C of the
zoning by-laws. In support of their petition, the Passalaquas
explained that a fire had occurred in their legal, non-conforming
four-family building, and that it had destroyed the building to
an extent exceeding 65 percent.
12. On March 3, 1993, following notification to abutters and
publication of such in the local newspaper, a public nearing was
conducted by the Board of Appeal concerning the Passalaquas'
petition for a variance with respect to Section 11C of the
by-laws. Plaintiffs Ingraham and Dougherty appeared at the
hearing and spoke in opposition to the petition. In addition, a
letter from 28 abutters and neighbors was received and read into
the record. The Board then retired to a closed or executive
session at which, among other things, they voted continue
consideration of the Passalaquas petition to March 8, 1993.
13. On March 8, 993, without further notice or notification,
the Board met in informal session to consider again the
Passalaquas' petition. At this meeting, attended by Mary Ann
Passalaqua but not by either plaintiff, the Board reviewed and
considered an architectural plan and cost estimate for
reconstruction of the four-family unit which the Passalaquas had
submitted to the Board that day, discussed an opinion letter from
town counsel concerning the application of Section 11C, and, with
one member dissenting, voted to grant the variance requested. In
their decision allowing the petition, the Board stated as
follows:
(1) Relief could be granted in the case before them without
nullifying or substantially derogating from the intent and
purpose of the zoning by-law.
(2) Relief could be granted without detriment to the public
good.
(3) Literal enforcement of the provision of the zoning
by-law would cause the petitioner a hardship, financial or
otherwise.
The Board did not support its conclusions by any subsidiary
findings and none were placed on the record of this case.
Specifically, the Board made no findings with respect to the soil
conditions, shape or topography of the land or proposed
structure; made no findings with respect to whether a literal
enforcement of the provisions of Section 11C would involve
substantial hardship, financial or otherwise, to the Passalaquas;
and made no findings with respect to whether the variance could
be granted without substantial detriment to the public good or
without nullifying or substantially derogating from the intent or
purpose of the by-law.
14. The complaint in this case was filed on April 5, 1993.
Subsequently, the parties briefed and argued a motion for summary
judgment filed by the plaintiffs. In a Memorandum of Decision and
Order dated June 1, 1994, this Court (Botsford, J.) remanded the
matter to the defendant Board for further explanation as to the
reasons or its allowance of the waiver. Noting that the Board
apparently accepted the Passalaquas' representation that
reconstruction of their building could be accomplished for less
than 65 percent of its reproduction cost, the Court sought
guidance from the Board as to whether it was of the opinion that
a variance from s. 11C which it had apparently granted, was
necessary.
15. In a letter dated June 22, 1994, the Board responded
that it had granted the variance based on estimates submitted at
the March 8th hearing which showed that it would cost $400,000.00
to reproduce the structure and $200,000.00 to reconstruct it. The
board then stated as follows:
"Therefore, under Section 11C of the zoning by-laws . . .
the Zoning Board of Appeal voted to grant the variance,
whereas the reconstruction cost was less than 65% of
reproduction cost within two (2) years to its size and use
immediately prior to the damage. The board stated, this is
not a use variance."
16. At the time of the fire in December 1992, the premises
at 57 Mt. Pleasant Street, North Billerica was in a rural
residential district as defined by Paragraph 4.3.3 of the
Billerica zoning by-law. By reason of Paragraph 5.7.4, only
single family residences with an in- apartment -- an apartment
in the same building and retaining its essentially one family
exterior appearance -- is permitted in a rural residence
district. The lot conforms to the dimensional requirement of the
zoning by-laws.
17. The Passalaquas did not appeal the determination of the
Building Inspectors that the premises at 57 Mt. Pleasant Street
had been damaged more than 65 percent of its reproduction cost.
RULINGS OF LAW AND DISCUSSION
Where judicial review of a zoning board of appeals decision
is sought pursuant to the provision of G.L. c. 40 A, s. 17, it is
the task of the Court to determine whether the Board based its
decision on legally tenable grounds. See Crittenton Hastings
House of the Florence Crittenton League v. Board of Appeals of
Boston, 25 Mass. App. Ct. 704, 711 (1988). In the present case,
the plaintiffs allege that the Billerica Board of Appeal exceeded
its authority by its decision to allow the reconstruction of a
legally non-conforming four-family structure, whether it was
based upon a variance or upon a finding that a variance was not
necessary because such reconstruction was permitted under section
11C of the zoning by- laws.
The plaintiffs are correct in arguing that a variance in
this case cannot be justified given the Board's failure to make
those findings required by G.L. c. 40A, s. 10; however, the Board
was authorized in this case to permit reconstruction of a legally
non-conforming structure without a variance under s. 11C of its
zoning by-laws. For that reason, the Board's ultimate decision
allowing the Passalaquas to reconstruct will be affirmed.
A. The Variance
A local zoning board may grant a variance from applicable
requirements if it finds that: (1) enforcement of the zoning
by-law would cause substantial hardship to the Petitioner, (2)
due to special circumstances relating to the soil conditions,
shape, or topography of the particular parcel of land, and (3)
granting the requested variance would not substantially derogate
from the general purpose of such by-law. G.L. c. 40A, s. 10;
Pendergast v. Board of Appeals of Barnstable 331 Mass. 555, 557
(1954); Tsagronis v. Board of Appeals of Wareham, 415 Mass. 333
(1993). Each of the three elements above must be satisfied in
order for a variance to be properly granted. Kirkwood v. Board of
Appeals of Rockport, 17 Mass. App. Ct. 423, 428 (1984).
Furthermore, the board must explicitly disclose its reasons for
granting the variance. Josephs v. Board of Appeals of Brookline,
362 Mass. 290, 295 (1972). It is insufficient for the board to
merely recite that the statutory requirements of G.L. c. 40A, s.
10 have been satisfied.
A judge who reviews he granting of a variance hears the
matter de novo, and determines its legal validity based on his
own findings of fact. Id.; G._. c. 40A, s. 17. "The burden is on
the person seeking a variance, and the board granting one, to
produce evidence , [to show] that each of the discrete statutory
prerequisites has been met and that the variance is justified."
Guirsaossian v. Board of Appeals of Watertown, 21 Mass. App. Ct.
;111, 115 (1985). As a general rule, variances are a disfavored
form of relief which should be sparingly granted. Id.
The Billerica Board of Appeal purported to substantiate its
decision to grant the Passalaquas a variance in its findings and
in its decision dated March 3, 993. [5] Specifically, the Board
stated that: " (1) Relief could be granted . . . without
substantially derogating the intent and purpose of the zoning
bylaw. (2) Relief could be granted without detriment to the
public good. (3) Literal enforcement of the provision of the
zoning by-law would cause the petitioner a hardship, financial or
otherwise."; however, this court is not satisfied by the Board's
justification for its decision. The record does not disclose any
findings with respect to any unique features of the land's soil,
shape, or topography which would cause substantial hardship to
the Passalaquas if the variance was denied. Nor does the
decision indicate that the hardship suffered relates to the land
itself, as opposed to the financial situation of the Passalaquas.
Paling v. Bruins, Mass. App. Ct. 707, 711-712 (1984) (financial
situation of owner is irrelevant to variance determination).
A zoning board's unsubstantiated conclusion that the
statutory requirements of G.L. c. 4OA, s. 10 have been met is
simply insufficient to justify the granting of a variance.
Joseph, supra at 295. For that reason, and based upon the facts
of this case, the court concludes that the Billerica Board of
Appeal was not authorized under G.L. c. 40A, s. 10 to grant the
Passalaquas a variance to reconstruct a legally non-conforming
structure.
The court next considers whether the Board's decision
justifiable under s. 11C of its zoning by-laws.
B. The Board's Interpretation of By-Law s. 11 C
In its response to this Court's remand following hearing on
the plaintiff's Motion for Summary Judgment, the Board appears to
imply that its decision. allowing the Passalaquas a building
permit was based on calculations submitted to them to the effect
that the building could be reconstructed for a cost less than 65
percent of its reproduction. Specially, amounts presented to the
Board and to this Court at trial demonstrated that reproduction
of the non conforming, four-family dwelling would cost
approximately $400,000, but that a similar functioning
four-family dwelling could be constructed for $200,000. Although
the Board's reasoning is unsound, the court affirms its decision
to allow reconstruction based on section 11C of its zoning
by-laws.
Where applicable, section 11C of the Billerica zoning by-law
provides as follows:
Any lawfully non-conforming building or structure destroyed
or damaged by fire . . . to the extent of sixty-five percent
65%) or more of its reproduction cost at the time of such
damage shall not be rebuilt, repaired, reconstructed nor
altered except for a purpose permitted in the zoning
district in which such building is located. Any building so
effected to the extent of less than 65% of its reproduction
cost can be reconstructed within two years to its size and
use immediadely prior to damage or destruction.
Through the zoning by-laws the citizens of a town express
their attitude toward non-conforming uses. Berliner v. Feldman,
363 Mass. 757, 775 (1973) In some instances, the town may have an
entirely tolerant attitude toward non-conforming uses and allow
reconstruction without restricting those cases where previously
lawful, non-conforming structure is damaged or destroyed. See
e.g., Berliner, 363 Mass. at 776-777. In other instances, the
citizens of a city or town make it clear that an owner of an
nonconforming structure is not entitled as of right to rebuild if
the structure is destroyed to more than a particular percent of
its value. See e.g., Hatfield v. Garvey, 362 Mass 821, 324 (1973)
. In all instances, a court must look to the specific language of
the by-law, keeping in mind the general rule of statutory
construction that no word should be viewed as superfluous and
that language should be give a sensible meaning when read in
context. See Melrose-Wakefield Hospital Association v. Board of
Appeals of Melrose, 31 Mass. App. Ct. 923, 924 (1991).
In section 11C of Billerica's zoning by-laws, the citizens
of the Town have declared that a legally non-conforming structure
destroyed or damaged by fire may not be rebuilt unless the damage
is less than 65 percent of the cost of reproducing the building.
In the present case, therefore section 11C requires a comparison
between the monetary loss to the building sustained as a result
of the fire and the cost of reproducing the building. [6] In
this case, the building was complete destroyed. The monetary
value of the damage caused by the fire is $130,200, the total
value of the building prior to the fire. The cost of reproducing
the building is $414,140. Where the damage to the structure,
$130, 200, is less than 65 percent of its reproduction cost,
$414,140, the building may be reconstructed pursuant to s. 11C of
Billerica's zoning by-laws without a variance. [7]
C. The Remedy
For the reasons stated above, the decision of the Billerica
Board of Appeal, which allows the Passalaquas to reconstruct a
legally non-conforming structure, is affirmed; however, the
matter shall be remanded to the Board for further public
proceedings to ensure that the Passalaquas' reconstruction
complies with sections 11C and 11D of Billerica's zoning by-laws,
i.e., the Board shall ensure that the building is not
reconstructed in a manner that is substantially more detrimental
to the neighborhood than the pre-existing non-conforming
structure.
ORDER
The court hereby ORDERS that the Billerica Board of Appeal's
decision be AFFIRMED in so far as it allows the Passalaquas to
reconstruct a legally non-conforming structure. The court
further ORDERS that this matter be REMANDED to the Board for
public proceeding in order to ensure that the reconstruction
complies with its zoning by-laws in all ocher respects.
Dated: June 30 , 1995
Robert H. Bohn, Jr.
Justice of the Superior Court
Footnotes [1] through [7]:
[1] John F. Gray Jr. Chairman, Doris M. Pearson, Donald J.
Flynn Joseph P. Shaw, Ralph J. McKenna, Michael J Mulligan,
Sr., as they are the Board of Appeals of the town of
Billerica; and Anthony R. Passalaqua and Mary Ann
Passalaqua, as owners of the subject property.
[2] In their petition to the Board of Appeals, the
Passalaquas sought a waiver of two provisions of the
Billerica zoning by-laws: Section 7.1.A concerning setbacks
and Section 11C concerning non-conforming structure. At
trial, the parties stipulated that the instruction proposed
by the defendants meet the requirements of section 7.1.A.
[3] Although named as defendants, neither the Board of
Appeal of the Town of Billerica nor any of its members
participated in the defense of its decision upon which this
case is predicated.
[4] At trial, there was some difference of opinion with
respect to whether the house was constructed as a single
family home. Plaintiff Ingraham, who is the Billerica town
historian, testified that the house was built as a single
family residence by one Charles French and even to his
daughter and son-in-law as a wedding present. Defendant Mary
Ann Passalaqua testified that the structure was originally
built as a two-family home.
[5] Although the decision is dated March 3, 1993, the exact
filing date is unknown. The decision was issued sometime
after further proceedings were conducted on March 8, 1993.
[6] The Board of Appeal erroneously compares reproduction
cost with the cost of constructing an inferior, legally non-
conforming building. The cost of the latter is irrelevant
to the issue of whether a non-conforming structure may
rebuilt after destruction by fire.
[7] The Billerica Zoning By-Laws do not say that the
building must be reproduced, but rather, that any building
so damaged by fire can be reconstructed. The cost of
reproduction is simply the standard against which the
possibility of reconstruction should be judged. Whether
reproduction and reconstruction are synonymous and whether
the Passalaquas may reconstruct a building which is
substantially inferior to the original structure and in
greater non-conformance with the zoning requirements is for
the Billerica Board of Appeals to determine in the first
instance. See this court's (Botsford, J.) Memorandum of
Decision and Order on Plaintiffs' Motion for Summary
Judgement issued on June 1, 1994; and Garvey v. Board of
Appeals of Amherst, 9 Mass. App. Ct. 856 (1980) (court may
not substitute its own judgment for that of the board).
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