James F. KELLEY & others 1 v. ZONING BOARD OF APPEALS OF MASHPEE & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2018, the Mashpee town meeting adopted a new bylaw addressing razing and replacing nonconforming dwelling structures. This “raze and replace bylaw,” § 174-17.1, reads:
“No pre-existing, non-conforming single or two (2) family dwelling structures shall be torn down and rebuilt on any lot unless there is an issuance of a Special Permit from the Zoning Board of Appeals. Such a Special Permit may be granted only if the Zoning Board of Appeals finds that any changes, extensions, alterations or reconstruction of the pre-existing non-conformities are not substantially more detrimental than exists prior to removal of the existing structure and that there is adequate land area to provide sufficient parking. In no case shall new non-conformities be permitted without the issuance of a Variance.”
Defendants Frederick Naddaff and Linda Naddaff, owners of the property at issue in this case, submitted to the zoning board of appeals (board) an application under this provision for a special permit to raze and replace the existing dwelling structure on their property, including a proposal for their planned replacement dwelling. Over the opposition of the plaintiffs, nearby neighbors, their application was allowed, and a special permit was issued by the board. The plaintiffs appealed to the Land Court, which granted summary judgment to the defendants. The plaintiffs have now appealed.
As presented by the plaintiffs, the only issue before us is whether the proposed structure either is substantially more detrimental in terms of nonconformity with respect to the setback from the front yard lot line than the pre-existing structure, or creates a new nonconformity with respect to that setback. This depends on whether, under the bylaw, the carport is part of the dwelling. In particular, the question is whether in determining the pre-existing nonconformity with respect to the setback from the front yard lot line, the distance from the dwelling structure to that property line should be measured from the southwest-facing end of the dwelling's carport, or from the southwest-facing inner wall of that carport, i.e., the outer wall of the rest of the dwelling, which is further back from the front yard lot line.4 If the current front yard setback is measured from the southwest-facing end of the carport, the proposed structure slightly reduces the existing nonconformity with respect to the lot line; but if it is measured from the southwest-facing outer wall of the rest of the dwelling, the carport's inner wall, the proposed structure either would create a new nonconformity with respect to the lot line or would exceed the existing nonconformity with respect to that line.5 The board concluded that the proposed structure would not cause the preexisting nonconformities to become substantially more detrimental than those of the existing dwelling structure and it adopted the Naddaffs' representation that the proposed structure would introduce no new nonconformities. The board's conclusions included an implicit finding that the carport is part of the dwelling structure, such that, in determining the current nonconformity, the distance to the property line should be measured from the southwest-facing end of the carport.
The plaintiffs argue that under the Mashpee Zoning Bylaw (“zoning bylaw”), the carport is an “accessory building” that should not be included as part of the dwelling structure for purposes of determining how close it is to the property line. The defendants, however, argue that the carport is part of the dwelling structure.
Unfortunately, the zoning bylaw is ambiguous on this point. It defines the term “[b]uilding” as including “the word ‘structure’ unless the context unequivocally indicates otherwise.” The bylaw further provides that “ ‘[b]uilding’ shall also mean any three-dimensional enclosure by any building material of any space for use or occupancy, temporary or permanent, and shall include foundations in the ground; also all parts of any kind of structure aboveground except fences and field or garden walls or embankment retaining walls.” “Structure” is defined as “[a] combination of material assembled at a fixed location to give support or shelter, such as a building, tower framework, platform, bin, sign or the like.” An “accessory building” is defined as “[a] building devoted exclusively to a use accessory to the principal use of the lot on which it is located.” Finally, a detached dwelling is defined as “[a] building designed for or occupied as a residence and separated from any other building, except accessory buildings, by side yards.”
The plaintiffs argue that the carport is not a building, but a structure, because it is not a “three-dimensional enclosure.” Nonetheless, they also argue that it is an “accessory building”. Because building “[i]ncludes the word ‘structure’ unless the context unequivocally indicates otherwise,” this is perhaps a plausible construction of the statute, and since an accessory building can be attached to a dwelling, perhaps the bylaws could reasonably be read to define this carport as an attached accessory building.
On the other hand, under the definition of building, a building “shall include ․ all parts of any kind of structure aboveground except fences and field or garden walls or embankment retaining walls.” The carport in this case is a “part” of the dwelling structure that is above ground. It is integrated into it. The carport and the rest of the dwelling share a roofline. If the carport were enclosed, it would be an attached garage. It is not a fence, a field or garden wall, or an embankment retaining wall. It is thus also a reasonable construction of the statute that the carport is part of the building that the raze and replace bylaw calls the “dwelling structure.”
Where the language of a bylaw is ambiguous, we are bound to defer to a zoning board of appeals's construction of its town's zoning bylaws if that construction is reasonable. See Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647, 649 (2004) (“Where the board's interpretation is reasonable ․ the court should not substitute its own judgment”). The board's decision means that it has construed the bylaw in the second, reasonable way described above, so that the carport is part of the “dwelling structure.” Although as we have said, perhaps the zoning bylaws's definition of accessory building could have been construed to include a carport such as this, the zoning board of appeals has, reasonably, construed it otherwise. That construction is authoritative, and indeed, in all subsequent cases, the zoning board of appeals has now bound itself to construe the bylaw in the same way. Under this reasonable construction of the Mashpee bylaw that we are required to accept, the proposed construction contains no nonconformity more detrimental than the pre-existing structure and no new nonconformities. The judgment of the Land Court is affirmed.
4. The existing dwelling structure also failed to meet the side yard setback, but the proposed structure would remedy that nonconformity and would comply with the required side yard setback.
5. No measurement was provided from the southwest-facing wall of the main portion of the dwelling to the front yard lot line so we are unable to determine whether that distance would satisfy the front yard setback requirement.
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