Pelullo v. Croft

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13-P-28 Appeals Court

ANTHONY PELULLO, trustee,1 vs. PAUL R. CROFT & another.2

No. 13-P-28. October 22, 2014.

Zoning, Board of appeals: decision, Building inspector,

Issuance of permit, Judicial review, Lot. Practice, Civil,

Zoning appeal, Summary judgment. Words, "Lot depth."

The sole issue before us is the correct interpretation of a

provision of the town of Natick's (Natick) zoning by-law which

requires a minimum lot depth of 125 feet for the construction of

a single family home in a residential zoning district known as

an "RSA" district. Natick Zoning Bylaws, Table IV-B, Intensity

Regulations by Zoning District (2008) (by-law). The term "lot

depth" is not defined in the by-law. However, the by-law

provides that undefined terms "shall have their ordinarily

accepted meanings or such as the context may imply." For

substantially the same reasons stated by the Land Court judge in

his memorandum of decision allowing the plaintiff's motion for

summary judgment, we affirm.3

1

Of the Pelullo Family Nominee Trust.

2

Board of Appeals of Natick.

3

For the first time on appeal, Croft argues that the by-law

in question is void for vagueness. We decline to consider the

question because "[a]n issue not raised or argued below may not

be argued for the first time on appeal." Carey v. New England

Organ Bank, 446 Mass. 270, 285 (2006), quoting from Century Fire

& Marine Ins. Corp. v. Bank of New England-Bristol County, N.A.,

405 Mass. 420, 421 n.2 (1989).

2

The essential facts are not in dispute. On July 12, 2010,

the defendant, Paul R. Croft, applied to Natick's building

inspector for a permit to construct a single family home at 15

Upland Road in Natick (lot 1A). The plaintiff, an abutter,

filed an opposition on grounds that lot 1A did not meet the by-

law's minimum 125 foot lot depth requirement. The building

inspector issued the permit reasoning that in cases involving

"odd-shaped lots," the "depth is determined by established

practices and procedures of the Building Department which

involve a calculation of lot depth on an angle in conjunction

with a determination as to satisfaction of all other applicable

dimensional requirements." The board of appeals of Natick

(board) affirmed the building inspector.

The meaning of the term lot depth as used in the by-law "is

a question of law . . . to be determined by the ordinary

principles of statutory construction." Framingham Clinic, Inc.

v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290

(1981). Here, the by-law specifically states that undefined

terms "shall have their ordinarily accepted meanings or such as

the context may imply." This provision is not a license to give

undefined terms in a municipal by-law a meaning that suits the

personal views of those charged with its enforcement. Rather,

in such cases an undefined term like lot depth must be given "a

reasonable construction." Kramer v. Zoning Bd. of Appeals of

Somerville, 65 Mass. App. Ct. 186, 191-192 (2005), quoting from

Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622

(1983). "We derive the words' usual and accepted meanings from

sources presumably known to the [by-law's] enactors, such as

their use in other legal contexts and dictionary definitions."

Framingham Clinic, Inc., 382 Mass. at 290, quoting from

Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). See

Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647,

649-650 (2004). The standard dictionary definition of depth is

"the measurement from . . . the front to the back." Concise

Oxford Dictionary, at 363 (9th ed. 1995). See Webster's Third

New Intl. Dictionary, at 607 (2002) (defining depth as "the

direct linear measurement from the point of viewing, from the

usual position of an observer, or toward the back from a

position usually considered the front").

Croft contends that we should show great deference to the

interpretation of a by-law by local officials, and, in this

case, accede to what the building inspector described as his

"established practice" of measuring the depth of an "odd-shaped"

piece of land on a diagonal. The judge properly rejected this

3

argument as a misreading of Britton v. Zoning Bd. of Appeals of

Gloucester, 59 Mass. App. Ct. 68, 73-77 (2003), on which Croft

relies. Review of a board's decision under G. L. c. 40A, § 17,

"involves a 'peculiar' combination of de novo and deferential

analyses." Wendy's Old Fashioned Hamburgers of New York, Inc.

v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009). In

the setting of a G. L. c. 40A, § 17, appeal, a court owes

deference to the interpretation of a zoning by-law by local

officials only when that interpretation is reasonable. See

Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,

461 Mass. 469, 475 (2012).4 "[A]n 'incorrect interpretation of a

statute . . . is not entitled to deference.'" Ibid., quoting

from Atlanticare Med. Ctr. v. Commissioner of the Div. of Med.

Assistance, 439 Mass. 1, 6 (2003).

Neither the building inspector nor the board explained why

a diagonal measurement of lot depth was consistent with the

ordinary meaning of that term, and failed to offer any reasoned

basis for measuring lot depth based on a diagonal line. As the

judge found, lot 1A is not oddly shaped. Lot 1A is more or less

rectangular in shape with front and rear lot lines of about 170

feet, and side lot lines that vary from about eighty-six feet to

seventy-one feet. The use of a diagonal line to measure the

depth of a rectangular lot is contrary to the ordinary and

accepted meaning of the term lot depth. It is thus an incorrect

interpretation of the by-law, and is not entitled to judicial

deference. Even weaker is the building inspector's bald

assertion of an established practice using a diagonal line to

measure the depth of lots regarded as oddly shaped. There is no

evidence in the record to support the claim. Moreover, in the

absence of any objective standard for determining what

constitutes an "odd-shaped lot," the use of such a criteria

4

In Britton, supra at 73-74, we explained that judicial

review of a local board decision on an application for a

variance or special permit under G. L. c. 40A, § 6, involves two

inquiries: first, whether the local board has chosen the correct

legal standard in deciding to grant or deny the application; and

second, whether that standard was properly applied to the

particular facts and circumstances of the case. It is only

after the court decides that the local board chose the correct

legal standard that the court's review becomes "highly

deferential" because the local board is in the best position to

assess whether the proposed addition or alteration "would be

substantially more detrimental to the neighborhood than the

existing structure." Id. at 74.

4

would lead to arbitrary and idiosyncratic results. As the judge

explained in his well-reasoned decision, "'[t]he right of the

public to have the zoning by-law properly enforced cannot be

forfeited by the actions of a municipality's officers. Nor can

a permit legalize a structure or use that violates a zoning by-

law.' [Building Commr.] of Franklin v. Dispatch

[Communications] of New England, Inc., 48 Mass. App. Ct. 709,

715 (2000) (internal citations and quotations omitted)."

The final question we must address stems from the fact that

during the pendency of this case, lot 1A, on which a single

family home was constructed by Croft, was combined with two

other parcels which adjoin it and then sold to a third party.

The judge was correct in concluding that this development did

not render the controversy moot because there was no change in

the by-law. See Flint v. Commissioner of Pub. Welfare, 412

Mass. 416, 419 (1992). The judge correctly applied the same

analysis to the reconfigured lot 1A as he did to the original

lot 1A to reach the same result. The reconfigured lot is

approximately 509 feet long, but no more than 86.1 feet wide at

any point except in the 40 feet at its extreme northern end,

which has a "tail." Only a sliver of the property has more than

125 feet of distance between the front and rear lot lines

(approximately 40 feet of the 509 feet of frontage). As the

judge found, "[t]he shortest distance between the front and rear

lot lines still measures 70.9 feet. Similarly, the mean

horizontal distance between the front and rear lot lines of the

reconfigured lot is no more than 94 feet." Based on a

definition of lot depth as either the "shortest" distance front

to back or the "mean" distance front to back, the reconfigured

lot fails to meet the requirements of the by-law.

Judgment affirmed.

George F. Connors for Paul R. Croft.

Peter S. Brooks (Zachary W. Berk with him) for the

plaintiff.