CATHERINE MCDONNELL & Others v. 221-227 COMMERCIAL STREET LLC & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1071
CATHERINE MCDONNELL1 & others2
vs.
221-227 COMMERCIAL STREET LLC & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is an appeal from a Land Court judgment affirming the
decision by the Boston board of appeal (board) to grant a
conditional use permit under § 54-18 of the Boston zoning code
1 Individually and as trustee of the Prince Condominium Trust.
2 Jennifer Crampton, individually and as trustee of the Crampton
Family Holding Trust and the Prince Condominium Trust; Ann
Moritz, individually and as trustee of the Prince Condominium
Trust; Peter Murley, individually and as trustee of the Macaroni
Factory Realty Trust and the Prince Condominium Trust; C.
Michael Malm, individually and as trustee of the Prince
Condominium Trust; John Cuoco; Richard Bendetson, individually
and as a beneficial owner of the Prince Office Trust; Chris
Tuite; Cynthia Finley; Richard B. Jacobs, individually and as
trustee of the Richard B. Jacobs 2000 Revocable Trust; Ilene B.
Jacobs, individually and as trustee of the Ilene B. Jacobs 2000
Revocable Trust; John Alexiou, Peter L. Goedecke, Adrienne Dion,
and Brendan Caley Sullivan, individually and as trustees of the
Howe and Bainbridge Condominium Trust. Two of the plaintiffs,
Bendetson and Goedecke, have not joined in this appeal.
3 Richard Walsh and the board of appeal of Boston.
(code).4 The central issue is whether the board's interpretation
of § 54-18 was reasonable. More specifically, the question is
whether the board could reasonably conclude that § 54-18 did not
require that the applicant obtain a variance as opposed to a
conditional use permit. We affirm.
In February 2021, Richard Walsh and 221-227 Commercial
Street LLC (the developers) sought relief from the board to
construct a fifty-three and one-half foot tall, six-unit
residential condominium on a vacant lot located at the
intersection of Commercial Street and Atlantic Avenue in the
North End. A former laundromat and a gas station had previously
stood on the lot; the taller of these two buildings had been
eighteen feet tall as of June 24, 1985. Section 54-18, fourth
par., limits the height of new development to the maximum height
of any building on the lot as of June 24, 1985; accordingly, the
developers needed, and sought, relief from the board to exceed
the height of the former buildings.
The board granted a conditional use permit to the
developers on April 20, 2021. The plaintiffs, who are fifteen
trustees, unit owners, and residents of two buildings abutting
the proposed construction, appealed the board's decision,
4 The case was originally filed in the Superior Court, but was
then assigned to the Land Court by the Chief Justice of the
Trial Court.
2
pursuant to § 11 of the Boston Zoning Enabling Act, St. 1956,
c. 665, as amended by St. 1993, c. 461. The plaintiffs claimed
that the project would significantly restrict light and air flow
to their properties and impact their existing views. On cross
motions for summary judgment, the Land Court judge determined
that the language of § 54-18 was ambiguous. The judge deferred
to the board's interpretation that § 54-18 required only a
conditional use permit, not a variance, because the judge
concluded that the board's interpretation was reasonable.5 This
appeal followed.
The only issue before us is whether § 54-18 requires the
developers to obtain a variance, as the plaintiffs allege, or
merely a conditional use permit, as the board concluded. "We
review interpretations of zoning bylaws de novo and according to
traditional rules of statutory construction." Pinecroft Dev.,
Inc. v. Zoning Bd. of Appeals of West Boylston, 101 Mass. App.
Ct. 122, 128 (2022). "With respect to conclusions regarding
interpretations of a zoning ordinance and their application to
the facts, an appellate court remains 'highly deferential'" to
the board's decision, even if the facts would support the
opposite determination. Wendy's Old Fashioned Hamburgers of
5 The parties filed a joint motion for entry of judgment pursuant
to Rule 10 of the Rules of the Land Court after the judge
partially allowed the defendants' motion for summary judgment.
3
N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383
(2009), quoting Britton v. Zoning Bd. of Appeals of Gloucester,
59 Mass. App. Ct. 68, 74 (2003). "The board's interpretation is
not dispositive. . . . Where the board's interpretation is
reasonable, however, the court should not substitute its own
judgment." Tanner v. Board of Appeals of Boxford, 61 Mass. App.
Ct. 647, 649 (2004).
The paragraph of § 54-18 at issue -- which is set forth in
full below and, like the entirety of § 54 of the code, only
applies to the North End -- requires board "approval" to build a
new building taller than the height of any building existing on
the particular lot as of June 24, 1985.6 "Approval," for
purposes of this provision, is undefined. The language does not
explicitly say whether approval in the form of a variance is
required or whether approval in the form of a conditional use
6 "The height of any building existing as of June 24, 1985, shall
determine the allowed building height on that lot subsequent to
total or partial demolition or destruction of such building.
Any proposed construction on the lot that would exceed the prior
height shall require Board of Appeal approval, and shall be
subject to the roof structure and building height restrictions
of this [§] 54-18 and the height limits applicable to the
subdistrict in which the lot is located. In making its
decision, the Board of Appeal shall consider whether such roof
structure has the potential for significantly restricting light
and/or air flow to adjacent structures and/or significantly
restricting views from roofs, windows, doors, or balconies.
Notwithstanding anything in Article 2A respecting the definition
of the term 'grade,' if a building abuts more than one street,
'grade' is the average elevation of the street with the lowest
elevation." Code § 54-18, fourth par.
4
permit suffices.7 The term was thus open to reasonable
interpretation by the board.
The plaintiffs argue that, along with a general presumption
that a violation of a dimensional restriction (such as height)
requires a variance, the lack of explicit language authorizing
the board to issue a conditional use permit precluded the board
from granting such relief. The plaintiffs contend that the code
generally states explicitly when a conditional use permit is
appropriate, and, as an example, point to the first two
paragraphs of § 54-18 itself, which state that conditional use
permits are the proper relief for nonconforming roof structures.
See e.g., code § 36-8 (prohibiting construction or enlargement
of rooftop additions on existing buildings without conditional
use permit); code § 16-4 (allowing board to grant conditional
use permits for buildings exceeding maximum height limit in
districts zoned as H-1-40 and H-1-50). The thrust of the
plaintiffs' argument is that the drafters of the code, by
omitting reference to conditional use permits from the language
of the fourth paragraph of § 54-18, intended for applicants in
the developers' position to seek a variance.
7 Other paragraphs of § 54-18, relating primarily to roof
structures, explicitly require applicants to obtain a
conditional use permit before building nonconforming roof
structures.
5
We are not persuaded. The plaintiffs' interpretation would
essentially render superfluous and meaningless not only the
final clause of the second sentence of § 54-18, fourth par., but
also the entire third sentence of the paragraph. The board
could reasonably avoid adopting a reading that would lead to
that result. See Lee v. Board of Appeals of Harwich, 11 Mass.
App. Ct. 148, 154 (1981), quoting Roblin Hope Indus. v. J.A.
Sullivan Corp., 6 Mass. App. Ct. 481, 486 (1978) (noting "well
established rule of statutory construction that 'none of the
words [of the statute or by-law] should be regarded as
superfluous'").
Specifically, the second sentence of § 54-18, fourth par.,
makes board approval dependent on two conjunctive requirements:
that the proposed construction be "subject to the roof structure
and building height restrictions of [§] 54-18 and the height
limits applicable to the subdistrict in which the lot is
located" (emphasis added), which are contained in § 54, table C.
In this case, the first clause results in a height restriction
of eighteen feet, since that was the maximum height of the
structures in place as of June 24, 1985, and the second clause
results in a height restriction of fifty-five feet because that
is the general height restriction for the North End district.
The "job of a coordinating junction like 'and'" is to link
independent ideas. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236
6
(2011). The plaintiffs' reading disregards the second clause by
making it superfluous or alternative to, rather than conjunctive
with, the first clause. There is good reason to read the
sentence in the conjunctive, as it was written, because a
building can violate the height limit of § 54-18 without
necessarily violating the subdistrict height limit. The project
at issue here is an example of just such a situation. There is
nothing to suggest that the drafters of the code intended for
the stringent variance framework to apply to proposed buildings
below the maximum height limit generally applicable to the North
End simply because they exceed a lower height limit resulting
from application of § 54-18, fourth par.
Similarly, the third sentence of § 54-18, fourth par., sets
out specific factors the board is to consider in approving a
proposed project whose height will exceed that of a previous
building on the lot. Specifically, the third sentence provides
that the board must consider whether any roof structure subject
to § 54-18 "has the potential for significantly restricting
light and/or air flow to adjacent structures and/or
significantly restricting views from roofs, windows, doors, or
balconies." Whatever else might be said about these
considerations, they bear no resemblance to those required for
7
the granting of a variance, which we have set out in the margin.8
Accordingly, to adopt the plaintiffs' view that § 54-18, fourth
par. requires a variance would require us to also adopt one of
two equally undesirable conclusions. We would be required to
either conclude that the third sentence is surplusage because it
is at odds with the statutory requirements for a variance, or to
conclude that the third sentence supplants the statutory
requirements for a variance. It was perfectly reasonable for
the board to avoid either of these undesirable results. See
Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 622
(2019) (statutes should be read harmoniously, not in manner to
create conflict); Recinos v. Escobar, 473 Mass. 734, 742-743
(2016) (statute should be read to avoid surplus language).
It follows from what we have said above that it was
reasonable for the board to determine that a conditional use
8 "The permit granting authority shall have the power . . . to
grant . . . a variance from the terms of the applicable zoning
ordinance or by-law where such permit granting authority
specifically finds that owing to circumstances relating to the
soil conditions, shape, or topography of such land or structures
and especially affecting such land or structures but not
affecting generally the zoning district in which it is located,
a literal enforcement of the provisions of the ordinance or by-
law would involve substantial hardship, financial or otherwise,
to the petitioner or appellant, and that desirable relief may be
granted without substantial detriment to the public good and
without nullifying or substantially derogating from the intent
or purpose of such ordinance or by-law." G. L. c. 40A, § 10.
8
permit was the proper form of relief under § 54-18. See Tanner,
61 Mass. App. Ct. at 649.
Judgment affirmed.
By the Court (Green, C.J.,
Wolohojian &
Sullivan, JJ.9),
Clerk
Entered: June 15, 2023.
9 The panelists are listed in order of seniority.
9