Brockton Power Co. v. City of Brockton

• Decision Date: 21 November 2012
• Docket Number: No. 12–P–214.,12–P–214.
• Citation: 978 N.E.2d 591,82 Mass.App.Ct. 1122
• Court: Appeals Court of Massachusetts
• Parties: BROCKTON POWER COMPANY LLC v. CITY OF BROCKTON & others.

82 Mass.App.Ct. 1122

978 N.E.2d 591

BROCKTON POWER COMPANY LLC

v.CITY OF BROCKTON & others.¹

No. 12–P–214.

Appeals Court of Massachusetts.

Nov. 21, 2012.

OPINION TEXT STARTS HEREBy the Court (KANTROWITZ, SIKORA & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendants appeal, claiming error in a decision of a judge of the Land Court permitting the siting of a public utility switchyard building in a lot separate from the electrical power-generating facility that it services. The defendants maintain that the judge erred by (1) not deferring to the interpretation made by the zoning board of appeals of Brockton (board), and (2) determining that a switchyard building is a public utility service and structure allowed as a principal use in Brockton's I–3 zoning district. We affirm.

Background. Brockton Power Company LLC (Brockton Power) proposed to construct an electrical power-generating facility in the city of Brockton (city). On a separate lot 3,000 feet away, Brockton Power also proposed to build a switchyard building to interconnect the new power-generating facility with the regional distribution system in the city. Both the proposed power-generating facility and the switchyard building would be located in the heavily industrialized I–3 zoning district. The building inspector denied the permit to build the switchyard building on the subject property because he determined it did not fall under any of the uses allowed in the I–3 district, which requires an accessory structure to be built on the same lot as its principal structure. The board affirmed the decision. The Land Court judge, in turn, reversed, and held that the switchyard building is a public utility service and structure allowed as a principal use under separate provisions of the zoning code in the city's I–3 district. Discussion. Section 27–61 of the zoning code defines accessory use or structure as a “use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building, including swimming pools, tennis courts and other recreational uses, but expressly excluding pay telephones.” Such structures must be on the same lot as the principal building.

The defendants argue that the switchyard building does not fall within the principal use category of public utility services and structures permitted by right in the I–3 district, as discussed in § 27–33(1)(p) of the zoning code. Instead, they argue that the switchyard building is an accessory structure because it serves “a purpose customarily incidental to the use of the principal building.” As such, the definition of “accessory use or structure” requires an accessory structure, like the switchyard building, to be on the same lot as the principal building.

Conversely, Brockton Power argues that pursuant to §§ 27–35(1)(a), 27–34(1)(a), and 27–33(1)(p) of the zoning code, the switchyard building falls under the public utility services and structures category. Brockton Power contends that as part of the public utility services and structures category ² it is a principal permitted use allowed by right in the I–3 zoning district. We agree with Brockton Power's arguments.

When determining a question of statutory interpretation, the reviewing court must first look to “the statutory language itself [as] the principal source of insight into the legislative purpose.” Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). The terms are defined according to their “ordinary and approved usage.” Chandler v. County Commrs. of Nantucket County, 437 Mass. 430, 435 (2002), quoting from Hanlon v. Rollins, 286 Mass. 444, 447 (1934).

“Incidental” as used in connection with accessory uses has been held to mean that the use must not be “the primary use of the property but rather one which is subordinate and minor in significance.” Harvard v. Maxant, 360 Mass. 432, 438 (1971). Moreover, the dictionary meaning of “incidental” is “being likely to ensue as a chance or minor consequence.” Webster's Third New International Dictionary 1142 (2002). See Boston Professional Hockey Assn. v. Commissioner of Rev., 443 Mass. 276, 287 (2005) (one can derive ordinary meaning of word from dictionary definition).

We start with the observation that the zoning code is mainly addressed to situations wherein homeowners wish to build a swimming pool, a tennis court, or the like. These uses are plainly incidental and...