J.M. Hollister, LLC v. Architectural Access Board

Berry, J.

(dissenting). The defined term “entrance” in the Architectural Access Regulations, 521 Code Mass. Regs. § 5.1 (2006), cannot, in my opinion, be deconstructed in the manner that the Architectural Access Board (board) proposes in this case. That a single entrance into a building at one particular location on the building footprint has multiple doors framed into that single entrance does not transform that single entrance into multiple separate entrances, as the board has written.

*525 The board’s deconstruction of, then reconstruction of, what constitutes an entrance to a building, which lifts and repositions various words and phrases — from within the very defined term at issue, “entrance” in § 5.1 — is not sustainable as a matter of administrative law, nor is the board’s single and conclusory rewrite sentence, which contains no legal or reasoned analysis. The board gives us only the following, and sole, sentence in a “Conclusion” section:

“The doors into the [J.M.] Hollister Co. [(Hollister)] Store at the Independence Mall are separate entrances since they are separate access points into the tenant space. Therefore, all are required to comply in full with 521 [Code Mass. Regs. §] 25.1.” (Emphasis added.)

That this rewriting by the board of the term “entrance” is not supportable is starkly evident if one juxtaposes the board’s single sentence deconstruction with the actual plain text of “entrance” as appearing in § 5.1, which is as follows:

“Any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, stairs, lifts, ramp or other vertical access leading to the entrance platform; the entrance platform itself; vestibules, if provided; the entry door(s) or gate(s); and the hardware of the entry door(s) or gate(s).”

A comparison of the board’s rewriting against the actual regulatory language demonstrates that, under the regulation, “door(s)” are not, contrary to what the board writes, “separate entrances,” and are not, contrary to what the board writes, “separate access points.” Rather, under the regulation, “door(s)” are what “[a]n entrance includes.” Indeed, the term “entrance” in § 5.1 envisions that there may be multiple “door(s)” in a single “entrance.” Section 5.1, on its face, is predicated on an architectural and building construction mode that ensures that any entrance, which serves as an access point to a building at a particular place within the building footprint, must be fully handicapped accessible. Under this model, if there were several entrances into a building that served as access points at other various locations *526 within the building footprint, each such variously located entrance would be fully handicapped accessible. But these architectural construction principles are not the same as, and cannot be reworked by word-shifting to mean that a single entrance at a single and particular location in a building footprint, which happens to be framed with multiple doors, is somehow transformed into multiple and separate entrances at the one building location, with each door constituting a separate entrance. 1 , 2 This is precisely, and in error of law, what the board has done.

It is perfectly clear that “all public entrances of a building or tenancy in a building shall be accessible.” 521 Code Mass. Regs. § 25.1 (2006). It is further perfectly clear that, in enacting G. L. c. 22, § 13A, and establishing the Architectural Access Board, our government intended to protect and vindicate rights of access for persons with disabilities. This is a fundamental and important government mission. That mission, however, for which the majority gives very extensive background, does not resolve the outcome-determinative issue presented in this *527 appeal concerning what constitutes an “entrance” under the black and white text of § 5.1.

The board’s deconstruction, then, of the term “entrance” in a manner which makes each and every door, although framed within a single “entrance,” into separate multiple “entrances” is, I submit, an error of law. See G. L. c. 30A, § 17. “Where an agency’s determination involves a question of law ... it is subject to de nova review.” Springfield v. Department of Telecommunications & Cable, 457 Mass. 562, 568 (2010). Although we may afford deference to an agency’s interpretation of its own regulations, “[n]o such deference is appropriate . . . when the commission [or board] commits an error of law.” Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991). The standard of review involves appropriate deference to well-grounded agency analysis of regulations, but “this principle is deference, not abdication, and courts will not hesitate to overrule agency interpretations when those interpretations are arbitrary, unreasonable, or inconsistent with the plain terms of the regulation itself’ (emphasis supplied). Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991). In this matter, the board’s error of law, if left undisturbed, has ramifications that will affect the future construction of, the architectural renderings of, and the construction cost of buildings all over the Commonwealth — including buildings of greater stature and monument than this commercial entrance to a commercial store in a shopping mall. 3

There is little reason for this court to afford deference to the board’s reading of the term “entrance” in this case, because its decision lacks any reasoned analysis and is “inconsistent with the plain terms of the regulation itself.” Ibid. There are several flaws that demonstrate the error of law in the board’s rewriting of what an entrance is, and which undercut administrative defer *528 ence in this appellate review. See Boston Police Superior Officers Fedn. v. Labor Relations Commn., supra.

First, as noted above, the board in its single sentence fiat has not set forth any reasoned analysis that supports its rewriting of the defined term “entrance.” In fact, the rewriting clashes with the black and white text of § 5.1. 4

Second, the lack of reasoned analysis is evident when one considers the full procedural history of this case. The decision of the board is a second attempt by the board to address what the term “entrance” encompasses. The first board decision, dated November 18, 2008, was sent back to the board on remand by a Superior Court judge following a first G. L. c. 30A review (Superior Court docket no. SUCV2008-05540) (hereinafter Hollister I). As stated in the second board decision, on remand the board was directed to address three omissions in its first decision including: “1) the jurisdiction of the [bjoard, 2) whether or not the doors at the front of the Hollister fs'zc] consist of one or more entranced), and 3) if it is determined that more than one entrance is provided, if a variance to 521 [Code Mass. Regs. §] 25.1 should be granted” (emphasis added).

In remanding on the second question concerning what constitutes an “entrance,” and whether multiple doors framed in one entrance make for multiple “entrances,” the Superior Court judge found that the administrative record in Hollister I on this precise issue was “thin” and that the board did not “elucidate this issue.” 5 Following the remand and further hearings, the board issued a second decision dated May 26, 2010. This second *529 board decision was affirmed by a different judge in a new and separately docketed Superior Court proceeding for review under G. L. c. 30A (Superior Court docket no. SUCV2010-02567). 6 Notwithstanding this affirmance, this second board decision does not make the record less “thin,” nor does this second decision provide any “elucidat[ionj” of the board’s revamping of the defined term “entrance.”

Third, the error of law in the board’s positing of a new and novel theory of what an entrance is mixes and merges and repositions unified words to create a meaning different from that which is already embedded within the defined term “entrance” in § 5.1. The path to this rewriting is difficult to fathom. The “multiple door” theory does not appear in the first board decision. The theory emerges only in the second board decision. And, as noted before, the theory and the rewriting of § 5.1 appears in a single sentence almost as afterthought, without analysis of the plain text of the regulation. In effect, the board’s rewriting gives rise to a redundancy which runs like this: if an entrance to a building at one particular location has one door in its framework, that one door equals one entrance; but, if an entrance to a building at the same particular location is framed with multiple doors, then the “multiple door” theory transforms the one entrance with multiple doors per se into multiple “separate entrances.” So it is that the board has created a new redundant definition in which the word “entrance(s)” virtually morphs into the word “door(s).”

The board’s rewriting of the regulation defining “entrance” in § 5.1 is an error of law, and accordingly, for the reasons stated herein, I dissent.

For example, under the Architectural Access Regulations, an “entrance” may have handicapped-inaccessible “revolving doors” and “turnstiles.” In such a multiple-door entrance with a revolving door or turnstile, not all doors need be handicapped accessible, so long as the turning door or doors, which are not handicapped accessible, are flanked by at least one adjacent door with full handicapped access.

As to revolving doors, 521 Code Mass. Regs. § 26.2 (2006) states as follows:

“Revolving doors shall not be the only means of passage at an accessible entrance or along an accessible route unless the revolving door is also accessible. An accessible door shall be provided adjacent to a revolving door and shall permit the same use pattern.”

As to turnstiles, § 26.3 states as follows:

“Turnstiles shall not be the only means of passage at an accessible entrance or along an accessible route. An accessible gate shall be provided adjacent to the turnstile and shall be designed to permit the same use pattern, complying with 521 [Code Mass. Regs. §§] 26.2.1 and 26.2.2.”

Although, as a historic building, the John Adams Courthouse is not subject to the Architectural Access Regulations, one can quickly see a single entrance with multiple doors within its grand framework at the Pemberton Square entrance. See also the Somerset Street entrance.

While the Hollister storefront is not, to use understatement, an architectural wonder, the revised definition of “entrance” adopted by the board here will have fundamental planning and development impact on future building designs. Given that there will be far more reaching architectural ramifications beyond this store’s porch and doors, I need not add to, or offer commentary on, the prose description of the store’s entrance, which is detailed in the majority opinion.

I do not understand what the majority means in note 3, ante. The board’s redefining of the term “entrance” will, of course, affect not only the use of buildings, but also the future design and construction of them. Further, the redefinition of the term “entrance” is not, as the majority suggests in note 7, ante, just about the use of an entrance; instead, it is a broad-reaching reinvention of what an “entrance” is.

In the remand on the second question, the judge wrote as follows:

“While the court finds that the administrative record on this point is thin with respect to facts that might elucidate this issue, the court does not reach the question of whether Hollister’s store design has one entrance or two. On remand the [bjoard may wish to permit additional evidence to be presented on whether such side by side doors are common and what reasonably constitutes one entrance, but that is for the [bjoard to decide.”

The second Superior Court memorandum and decision quotes the board’s ruling “that each door to the store was a separate entrance,” and then briefly states, “this [b]card determination was based on substantial evidence and was supported by the regulations” (emphasis supplied). However, what the defined term “entrance” means in respect to multiple doors —• which is the pivotal issue in this appeal — is not discussed further in the memorandum other than the highlighted reference.