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
19-P-1452 LINDA PINGIARO
1& another
2vs.
654 MYSTIC, LLC, & another
3(and a consolidated case
4).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Anthony Fava, Ryan Hart, and 654 Mystic, LLC (redevelopers) proposed to redevelop property in the city of Somerville (city) by razing an existing commercial structure, excavating the
surrounding pavement, and constructing six attached townhouse units. In this consolidated appeal, the abutters, Linda
Pingiaro and James DeMichele, individually, and as trustees of
1
Individually and as trustee of the 48-50 Ash Avenue Condominium Trust.
2
James P. DeMichele, individually and as trustee of the 48-50 Ash Avenue Condominium Trust.
3
Zoning Board of Appeals of Somerville.
4
Linda Pingiaro, individually and as trustee of the 48-50 Ash
Avenue Condominium Trust, and James P. DeMichele, as trustee of
the 48-50 Ash Avenue Condominium Trust vs. 654 Mystic, LLC,
Planning Board of Somerville, Anthony Fava, and Ryan Hunt.
the 48-50 Ash Avenue Condominium Trust (abutters), appeal from two summary judgments of the Land Court that concluded that the redevelopers' proposed redevelopment does not require a special permit, the city's planning board properly granted design and site plan approval to divide the lot into three lots, and the city's department of inspectional services properly granted associated building permits. For the reasons that follow, we affirm.
Background. The locus, known as 654 Mystic Avenue, was acquired by 654 Mystic, LLC by a deed describing a single lot containing 9,322 square feet of land. At the time 654 Mystic, LLC purchased it, the locus was improved by a vacant commercial building. The locus was situated in the city's Business B
("BB") zoning district and its rear lot line abutted a residential "RA" zoning district.
Pursuant to § 5.4.6. and § 8.8 of the Somerville Zoning Ordinances
5(ordinances), the redevelopers submitted applications for design and site plan approval from the planning board in order to divide the locus into three roughly equivalent lots, each fronting Mystic Avenue.
6The redevelopers proposed to
5
The ordinances were amended effective December 2019. We cite to the version of the ordinances in effect when the judgments were entered.
6
The BB district had no minimum lot size requirement.
construct a total of six attached townhouses, two units on each of the newly created lots.
7Firewalls would separate each unit and nonstructural party walls would straddle the lot lines.
Each unit would have three levels of living space and a garage, partially below grade.
8The proposed townhouse development would comply with all setback requirements; the BB district had no side yard setback requirement.
Section 7.11 of the ordinances contains a table of
principal uses permitted in the various zoning districts in the city either as of right, with a special permit, with a special permit and design review, or with a special permit and site plan review. "Principal Use" is defined by the ordinances as "[t]he main or primary purpose for which a structure, building, or lot is designed, arranged, licensed, or intended, or for which it may be used, occupied, or maintained under this [o]rdinance."
§ 2.2.128. In the "BB" zoning district, two and three unit townhouses are allowed as of right; four to six units of
7
The ordinances define "townhouse" as "[a]ttached dwelling units completely separated by a continuous vertical fire wall which are constructed so that each unit (a) has two (2) building faces with outside exposure; (b) has separate entrances from the
outside; (c) reaches from the foundation to roof line; and (d) each unit is arranged, intended and designed as a residence for one (1) family."
8
The garages would contain six spaces; the firewall between the
two units on each lot would not extend to the garage level and
the owners of both units on a single lot could access the entire
garage on the lot.
townhouses require a special permit; and seven or more townhouse units require a special permit with site plan review.
The planning board granted design and site plan approval allowing creation of the three lots with construction of two- unit townhouses on each lot, a use the board concluded was permitted as of right.
The abutters are the trustees of the 48-50 Ash Avenue Condominium Trust and are individual owners of units in that condominium. It is undisputed that they are rear abutters to the locus. They appealed from the planning board's approval of the lot splits to the Land Court pursuant to G. L. c. 40A, § 17.
9They contended, among other things, that (1) the ordinance does not allow creation of three lots from a single lot; (2) the planning board's decision exceeds its authority because the
proposed project requires a special permit; and (3) the proposed project exceeds the allowed height and number of stories.
Thereafter, the department of inspectional services granted building permits for the construction of two-unit townhouses on each of the three lots. The abutters appealed from the issuance of those permits to the city's zoning board of appeals (ZBA),
9
Section 6E of the ordinances provides that appeals of the planning board's decision on a design and site plan review
petition may be made in accordance with G. L. c. 40A, § 17. See Castle Hill Apartments Ltd. Partnership v. Planning Bd. of
Holyoke, 65 Mass. App. Ct. 840, 843 n. 6 (2006).
claiming that the three building permits issued by the city's inspectional services department were granted improperly for many of the same arguments made in the appeal of the planning board decision: (1) the redeveloper impermissibly split the original lot; (2) the proposed units are not permitted use because the common garage prevents them from being townhouses;
(3) the project needs a special permit because it is a six-unit dwelling; and (4) the buildings violate the height and story limitations of forty feet and three stories. The ZBA rejected the abutters' arguments, reasoning that:
"The BB zone has no dimensional requirements for side yard setbacks. Therefore, distinct and separate structures containing one or more dwelling units may touch each other at the property line. The property lines literally run through the right or left sides of each of the structures.
There is no special permit required. There are three legal, buildable lots that have been created through a
series of lot splits, each of which was approved to contain one townhouse structure containing two dwelling units. The approved townhouses are allowed without a special permit as indicated in the Use Table . . . ."
In the appeal of the planning board's decision, the judge similarly concluded that "[t]he Project describes the
construction of three two-unit townhouses where the party walls are situated on the common lot lines, in a zoning district with no side yard setback requirement" and "is a use that is allowed by right under the [o]rdinance[]." The judge added that it
"would have been unreasonable for the [planning board] to
conclude that the [p]roject was actually a single structure
sited across three lots and subject to the corresponding special permit requirement."
With regard to height and story limits, the relevant
provisions of the ordinances provide that any structure within thirty feet of an RA district "shall be limited to three (3) stories and forty (40) feet in height." Ordinances § 8.6.20.
Height is measured from the "finished grade" adjoining an exterior wall of a building. Ordinances § 2.2.66. "Finished grade," "unless specifically defined elsewhere in the
ordinance," is "the elevation of the reference plane represented by the average finished ground line adjoining a building at all the exterior walls," unless the finished ground level slopes away from the exterior walls, then "the elevation of the
reference plans shall be established by the lowest point within the area between the building and the lot line . . . ."
Finally, § 2.2.14 of the ordinances defines "[b]asement" as "[a]
story with at least forty (40) percent of its height below
finished grade," but provides that "for purposes of determining compliance to the height limit requirement of this Ordinance, a basement shall not be considered a story unless its ceiling is five feet or more above the average finished grade abutting the building."
1010
The judge described the garage as a "basement level garage"
and consistently referred to them as basement garages or
The board, in reviewing the building permits, and the judge, in reviewing the planning board lot division approvals, found that the garage is at least forty percent below grade and the ceiling is less than five feet above the average finished grade and, therefore, is not a "story," and, the proposed
townhouses would not violate the story requirement pursuant to
§ 2.2.14 of the ordinances. In addition, they concluded that the average finished grade was such that the structure did not exceed the forty foot height limit.
Further considering the building permits, the judge concluded the principles of issue preclusion prevented the
abutters from making the same arguments raised in the appeal of the planning board decision -- that a special permit was
required, the lot divisions were improper, and the proposed building violated height and story limitations -- and granted summary judgment to the redevelopers. The judge also found that the redevelopers had complied with condition seven of the
planning board's decision requiring submission of additional plans and that the abutters did not provide sufficient factual predicate to raise a genuine issue of material fact as to
whether "planning" and "engineering" departments had signed off
basements. The board and the parties also treated the garages
as falling within the definition of basements for purposes of
determining whether they constitute a "story."
on certain plans. We consolidated the abutters' appeals of the Land Court's decisions on the planning board's design and site plan approval of the lot splits and the ZBA's decision upholding the building permits.
Discussion. We review a summary judgment decision de novo.
81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 699 (2012). "Because a judge does not engage in fact finding when ruling on cross motions for summary judgment, we do not give deference to the judge's decision." Id. Moreover,
"'[i]nterpretation of the [city's] by-law raises a question of law,' which we also review de novo." Drummey v. Falmouth, 87 Mass. App. Ct. 127, 128 (2015), quoting Goldlust v. Board of Appeals of N. Andover, 27 Mass. App. Ct. 1183, 1184 (1989).
1. Design and site plan approval for lot division. The provisions of the Subdivision Control Law do not apply to the city. St. 1993, c. 288. Thus the procedure of dividing lots pursuant to an endorsement by the planning board that approval under the subdivision control law is not required pursuant to G. L. c. 41, § 81P, was not available to the redevelopers. The city controls "lot splits" and "subdivisions" in its ordinances and defines "lot split" as "the division of a lot or parcel into two (2) smaller parcels of land." Ordinances § 2.2.95.b.
Design and site plan approval by the planning board is required
for a lot split. Ordinances § 5.4.2.A.4. The planning board,
in reviewing whether design and site plan approval shall be granted, must verify that the accompanying plans conform to the ordinances. Ordinances § 5.4.6.A.
The abutters first contend that division into more than two lots cannot occur by a "lot split," which, they contend, is
limited to division of one parcel into two lots. We are not persuaded; we agree with the board and the judge that there is nothing in the bylaw that prevents successive lot splits and division of the original parcel into three lots is permitted under the ordinances. Contrary to the abutters' argument, the division at issue here does not constitute a "subdivision," as that term is defined in the § 2.2.163 of the ordinances. That provision defines "subdivision" as "division of a parcel of land into two or more lots . . . where a new thoroughfare or way is needed to provide access to the lots which would otherwise be landlocked." It is undisputed that the proposed lots all front on an existing way -- Mystic Avenue.
2. Special permit issue. The abutters also claim that the proposed redevelopment requires a special permit because the proposed development is properly classified as six townhouse units. Again, we disagree. The local bylaw controls "principal uses," defined as the main or primary purpose for which a
structure, building or lot is used, occupied, or maintained.
Here, the structure on each lot will be a two-unit townhouse, a
use permitted as of right in the BB district. The board and the judge concluded in essence that the lot divisions allowed the board to consider the use on each lot rather than considering the use on all three lots together. The abutters have not shown this to be an unreasonable interpretation of the bylaw or
otherwise arbitrary, capricious, whimsical, or based on a
legally untenable ground. See Stevens v. Zoning Bd. of Appeals of Bourne, 97 Mass. App. Ct. 713, 717 (2020). Therefore, we defer to the local board's reasonable interpretation of its bylaw. Id.
The abutters point to § 7.8 of the ordinances, which provides that "[w]here a use, structure, development, or
activity might be classified under more than one of the uses on the lines in the Table of Permitted Uses, the more specific classification shall apply; if equally specific, the more restrictive classification shall be used." They contend that whether the proposed use constitutes three two-unit structures or one six-unit structures is equally "specific" and, therefore, the more restrictive classification applies and requires a
special permit as a six-unit structure. Because the ordinances
allow lot division into three lots without side set-backs and
the redevelopers have so divided the lots, however, we disagree
that it is equally permissible to classify the proposed use as a
six-unit townhouse on a single lot. Rather, the planning board
correctly focused on the three divided lots and permissibly concluded that the proposed lot divisions showed two-unit townhouses on each lot and did not require a special permit.
3. Height and story limits. Having established that the proposed development on each lot will constitute a use permitted as of right, the question remains whether the proposed use
complies with the height and story limit.
11The parties agree that whether the proposed construction would violate the
ordinances' three-story height limitation depends on the proper calculation of the finished grade. The abutters admit that
"[t]he garage qualifies as a basement and the project is lawful if the proposed finished grade is calculated using the average adjoining grade method," but "the garage does not qualify as a basement and the project violates the three story height limit if the finished grade is calculated using lowest point on the slope method." The redeveloper's architect averred that average adjoining grade method is applicable because the property, built into a hill, does not slope away from the exterior walls of the structure. The board and the judge agreed that the property does not slope away from the exterior walls. The abutters contend it does.
11
On appeal, the abutters limit their argument as to whether
there are three or four stories; they do not pursue an argument
that the structure on each lot will exceed forty feet.
We need not resolve which method of calculating finished grade is generally applicable because the ordinances expressly provide that a basement shall not be considered a story unless its ceiling is five feet or more above the average finished grade abutting the building. The plain language of the ordinances, therefore, renders the dispute regarding slope
irrelevant. Average finished grade is applicable to determining whether a basement, or in this case the garage, is a story.
Having conceded that the project is lawful if the average finished grade is used, the abutters' argument fails.
Even if we were to address the slope formula, the abutters' argument is premised on their interpretation that by using the terms "slope away from the exterior walls," the drafters of the ordinances actually meant when the property slopes "as a whole in relation to the proposed building and not the grade of the land in relation to specific walls of the building." We cannot condone this distortion of the plain language of the ordinances and, therefore, like the board and the judge, reject the
abutters' argument. The board's application of the ordinances
has not been shown to be unreasonable, and "we extend deference
to the reasonable interpretation of local zoning regulations by
the officials charged with their administration and enforcement."
12Stevens, 97 Mass. App. Ct. at 717.
Finally, the abutters argue that the building permits should not have issued because condition seven of the special permit required submission of additional plans to the planning office and the city's engineering department depicting how much fill will be added to the site, the composition of the fill, its origin, and detailed engineering renderings of what the actual finished grade will be. Condition seven further provided that
"[p]lanning and [e]ngineering must sign off on these plans before any permits are issued for work on the site." The
abutters contend that this condition was not satisfied. The ZBA found that redevelopers had complied with condition seven. The judge found the grading plans appear on their face to provide all of the information required by condition seven. Despite the ZBA's finding that condition seven had been satisfied, the
abutters point to a lack of evidence that "planning and
engineering" signed off on the plans. As the judge found, there is no evidence, however, that the practice of the inspectional services department is to create physical evidence of approval of the plans; the building inspector signed them and the ZBA
12
Given our resolution of the height/story issue, we need not
reach the abutters' argument that the judge erred in precluding
them from relitigating the claim based on issue preclusion.
found that condition seven had been satisfied. In these
circumstances, we agree with the judge that to raise a genuine issue of material fact on this issue, it was incumbent on the abutters to present evidence that planning and engineering did not "sign off" on the plans. As they failed to do so, they have failed to raise a genuine issue of material fact.
13Judgments affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Lemire, Singh &
Englander, JJ.
14),
Clerk
Entered: August 24, 2020.
13
Because of the result we reach, we need not consider the judge's finding that the abutters lack standing to challenge whether planning and engineering signed off on the plans.
14
