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Appeals Court of Massachusetts.

Michael F. BREWSTER, trustee,1 v. ZONING BOARD OF APPEALS OF LINCOLN & others.2


Decided: February 04, 2021

By the Court (Green, C.J., Desmond & Lemire, JJ.3)


Michael F. Brewster, as trustee of the Oak Ridge Realty Trust IX (trust), appeals from a judgment of the Superior Court upholding a special permit granted by the zoning board of appeals of Lincoln (board) to Holly and Jonathan Hedlund (Hedlunds), allowing them to complete construction of a tree house on their property. We affirm.

Background. The parties' properties are located in the “single family residence district” in the town of Lincoln (town); the trust's property abuts a portion of the Hedlunds' rear property line. The Hedlunds' property is nonconforming with regard to lot area, width, and side line setback requirements. The tree house is to be constructed 4 within the side yard of the Hedlunds' property.

That the tree house constitutes an “accessory structure,” as that term is used in the local zoning bylaw (bylaw), is not contested on appeal. Although § 13.4 of the bylaw generally requires a setback of at least twenty feet for accessory structures, it allows construction of accessory structures within the otherwise required side setback with a special permit from the zoning board of appeals. Specifically, § 13.4 provides that “[a]ccessory structures, as defined in Section 23, and enumerated under [the definition of structure in subsections] (b-q) may be located without regard to ․ dimensional requirements provided that the Board of Appeals has issued a special permit pursuant to Section 6.2(f) and Section 20.2(c).” The types of structures enumerated in § 23(b-q) include stadiums; tents; reviewing stands; platforms; stagings; observation towers; water tanks; play towers; swimming pools; animal enclosures; trestles; sheds; shelters; courts for tennis or similar games; backstops; and backboards.5 In addition, the definition of “structure” provides that the term “structure” is not limited to the enumerated examples.

Section 6.2(f) addresses “private, non-commercial radio and television towers” and provides that a special permit shall not be denied “unless the safety of the public will be endangered.” Section 20.2(c) requires more generally that in determining whether to grant a special permit, the board must “determine that the use for which [the special] permit is requested is in harmony with the general purposes and intent of” the bylaw, “and that the proposed use is not detrimental or injurious to persons or property.”

Here, the board and the judge concluded that the Hedlunds' proposed tree house meets the criteria of § 20.2(c) and the judge found that § 6.2(f) does not apply because the Hedlunds do not propose to construct a radio tower.6

Discussion. On appeal, the trust does not quibble with the conclusion that the criteria of § 20.2(c) were satisfied; the trust argues only that a variance was required because the tree house introduces a new nonconformity -- “namely, the construction of a structure inside the setback.” The trust contends that the side yard waiver contained in § 13.4 does not apply to the tree house because § 13.4 uses the conjunctive, i.e., the proposed structure must comply with both § 6.2(f) and § 20.2(c), and, therefore, the plain language provides that only private, noncommercial radio and television towers may be constructed within the side setback by special permit. The trust further argues that in substituting “or” for “and” in § 13.4, the board and the judge effectively rewrote the bylaw. See Wallace W. v. Commonwealth, 482 Mass. 789, 798 (2019).

We disagree. We give substantial deference to a local zoning board's interpretation of a local zoning bylaw. See Koines v. Zoning Bd. of Appeals of Cohasset, 91 Mass. App. Ct. 903, 904 (2017). Here the board implicitly concluded that construction of the tree house within the setback could be approved by special permit.

The trust's interpretation of the bylaw ignores the substantial portion of § 13.4 that provides that it applies to accessory structures, including the multiple types of structures enumerated in the bylaw's definition of structure. Indeed, viewing the provision as a whole, the suggestion that the setback waiver applies to only private radio and television towers is utterly unsupported. When construing a bylaw, “[a]ll the words of [the bylaw] are to be given their ordinary and usual meaning, and each clause or phrase is to be construed with reference to every other clause or phrase without giving undue emphasis to any one group of words, so that, if reasonably possible, all parts shall be construed as consistent with each other so as to form a harmonious enactment effectual to accomplish its manifest purpose.” Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, 476 Mass. 377, 381-382 (2017), quoting Worcester v. College Hill Props., LLC, 465 Mass. 134, 139 (2013). The trust's interpretation would effectively nullify the definition of structures specifically incorporated by reference into § 13.4. “[S]o long as it yields a logical and sensible result, we do not interpret a [bylaw] so as to render any portion of it meaningless (quotation omitted).” Phillips v. Equity Residential Mgt., L.L.C., 478 Mass. 251, 258 (2017). Moreover, “[a] construction of an ordinance that would lead to an absurd and unreasonable conclusion is not to be adopted where its language is fairly susceptible to a construction that would lead to a logical and sensible result.” Bell v. Treasurer of Cambridge, 310 Mass. 484, 489 (1941).

It bears noting that § 6.2(f) contains a different standard for granting a special permit than § 20.2(c). The only reasonable interpretation of the bylaw is that by incorporating the provisions of both § 6.2(f) and § 20.2(c), the town ensured that the proper standard would be applied to special permit applications for any type of accessory structure. Indeed, there may in fact be instances when both provisions apply, as § 6.2 incorporates § 20. The use of the conjunctive, however, cannot reasonably be interpreted to require ignoring the provision's application to the list of structures contained in § 23. Nor does it require application of the standard contained in § 6.2(f) to the proposed tree house. Even if the standard did apply, however, the record is barren of any evidence that the safety of the public will be endangered by permitting construction of the tree house.

Here, contrary to the trust's argument, there is no new setback nonconformity when the bylaw effectively requires no setback for accessory buildings, provided a special permit is granted.7 See Comstock v. Zoning Bd. of Appeals of Gloucester, 98 Mass. App. Ct. 168, 175 (2020). In Comstock, we noted that “[t]hose who secure approval to exceed the twelve-foot height restriction in this manner [special permit process] would not be creating a new nonconformity; they would be proceeding in full compliance with the provisions governing maximum building height.” Accordingly, we discern no error in the board's decision to grant the special permit.

Judgment affirmed.


4.   The judge found that the Hedlunds reasonably began construction of the tree house without a permit, having been unable to find local regulations pertaining to tree houses. Once informed by the town that a special permit was required, the Hedlunds stopped construction and sought the special permit.

5.   Subsection (a) of the definition of “structure” lists “buildings,” and subsection (a) is conspicuously omitted from the list of structures that may be constructed within the side yard setback with a special permit. There is no argument that the tree house constitutes a “building.”

6.   The board imposed an expiration date of June 30, 2023, and the defendant, Jonathan Hedlund, testified that they have agreed to remove the tree house in June of 2023.

7.   There is no suggestion in the record that § 13.4 does not apply to nonconforming lots. See Comstock v. Zoning Bd. of Appeals of Gloucester, 98 Mass. App. Ct. 168, 175 (2020) (special permit procedure established by ordinance to exceed height limitation available to owners of conforming structures and nonconforming structures alike).

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Docket No: 19-P-1777

Decided: February 04, 2021

Court: Appeals Court of Massachusetts.

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