|Home Page||Commonwealth of Massachusetts, Middlesex County Superior Court|
|Date:||June 30, 1995|
|Case:||Ingraham & Dougherty v. The Board of Appeal|
|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.,  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.  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.  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.  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.  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.  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.  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  through :  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.  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.  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.  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.  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.  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.  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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