Petrucci v. Board of Appeals of Westwood
| Decision Date | 30 November 1998 |
| Docket Number | No. 97-P-1057,97-P-1057 |
| Citation | 45 Mass.App.Ct. 818,702 N.E.2d 47 |
| Parties | Joseph M. PETRUCCI v. BOARD OF APPEALS OF WESTWOOD. |
| Court | Appeals Court of Massachusetts |
Thomas P. McCusker, Jr., Boston, for defendant.
Mark Bobrowski, Foxboro, for plaintiff.
Before BROWN, GREENBERG and LAURENCE, JJ.
Joseph Petrucci and six family members reside in his home on a 53,000 square foot lot in Westwood's "single residence" zoning district. In 1995, he proposed to establish a child care facility in a barn located on his property. After interior renovations to the barn that would leave its exterior and footprint unchanged, the facility would serve forty-seven children daily and be staffed by six adults. The Westwood building commissioner (commissioner) denied Petrucci's application for a building permit to begin the renovations. The denial was affirmed by the Westwood board of appeals (board), which agreed with the commissioner that Petrucci was not entitled to the "child care facility exemption" he was relying on under G.L. c. 40A, § 3, third par., because the proposed use was not properly either "primary, accessory or incidental." 1 Following Petrucci's appeal pursuant to G.L. c. 40A, § 17, a Land Court judge agreed with Petrucci that the claimed exemption for a child care facility under § 3 applied and granted him partial summary judgment allowing the desired use.
The judge remanded the matter to the commissioner for review of Petrucci's application on the issue of the applicability of the "reasonable regulations" that the statute permits municipalities to impose on such a facility (see note 1, supra). The commissioner thereafter rejected the application because the barn failed to comply with the zoning by-law's rear yard, side yard, and height requirements. The board again affirmed the commissioner. After trial on the issue of the reasonableness of applying those regulations to the proposed project, the Land Court judge again upheld Petrucci, ruling that the imposition of the town's dimensional restrictions was unreasonable and ordering the board to issue the requested building permit. On the board's appeal, we affirm.
1. Applicability of the § 3 exemption. The commissioner initially denied Petrucci's application on his view that the proposed use "would result in the establishment of two princip[al] uses" on the property and was "not clearly accessory or incidental to a residential use." The board concurred, because the proposed facility "was so intensive" as to constitute a primary use of the property, and it could find "no authority" for "two ... primary uses [to] ... be situated on one property." The board further determined that the facility was not sufficiently "subordinate and related to the primary [residential] use of the property ... [to] be construed [as] ... accessory or incidental." The judge concluded that the board's reasoning was legally erroneous. He observed that nothing in the zoning by-law prohibited either child care facilities or the existence of more than one primary or principal use on a lot. He noted that the by-law even appeared to contemplate the possibility of multiple primary uses. 2
The judge's chief basis for endorsing Petrucci's reliance on the § 3 exemption, however, was his rejection of the board's restrictive construction of the statute. The board focused (both below and here) on the words "primary, accessory or incidental" in the third paragraph of § 3. It contended that the difference between those terms and the language of the immediately preceding (second) paragraph of § 3, providing a zoning exemption for educational or religious uses, 3 betokened a much narrower exemption intended by the Legislature for child care facilities.
The board's argument runs thus: Whereas the exemption of the second paragraph of § 3 speaks broadly and generally of "use for religious ... or for educational purposes," the third paragraph requires that the child care facility "use" be either "primary, accessory or incidental." Each of those words must be read literally so as to give them their customary meaning. Since the principal use of the Petrucci property is already residential, the child care facility cannot be a "primary" use, because "[i]t is ... clear that you cannot have two primary uses [of the property] either under the by-law or by definition." 4 Nor can the facility pass muster as an "accessory" or "incidental" use under the zoning decisions construing those terms, which hold that such a use not only must be minor in significance to the primary use but also must have a normal or customary subordinate relationship to that use. Compare Harvard v. Maxant, 360 Mass. 432, 438, 275 N.E.2d 347 (1971); Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 844-846, 641 N.E.2d 1334 (1994); Gallagher v. Board of Appeals of Acton, 44 Mass.App.Ct. 906, 907, 687 N.E.2d 1277 (1997); Maselbas v. Zoning Bd. of Appeals of N. Attleborough, 45 Mass.App.Ct. 54, 56-57, 694 N.E.2d 1314 (1998). Given the size of the facility (six adults and forty-seven children) in relation to the several Petrucci family members already there engaged in "typical family" residential living, it will be so comparatively large, intensive, and separate an operation as to be neither accessory nor incidental. 5
Assuming, without deciding, that the proposed child care facility cannot be deemed "accessory" or "incidental" to a residential use, we nonetheless conclude that the board was wrong and the judge correct in determining that the facility qualified for the exemption of the third paragraph of G.L. c. 40A, § 3. We need look no further than the language of the statute, which states that a zoning by-law may not "prohibit, or require a special permit for, the use of ... structures, or the expansion of existing structures, for the primary ... purpose of operating a child care facility." Petrucci's proposal falls squarely within that injunction. His existing structure, the barn, will be used (whether or not expanded) for the primary, indeed the sole, purpose of housing a child care facility operation; it cannot, therefore, be prohibited or subject to special permit requirements. 6
Even were the board correct in its assertion that the Westwood by-law does not permit multiple primary uses on a single lot, such a prohibition is exactly what the statute declares impermissible with respect to child care facilities. The board's reiterated assertions that the exemption applies only where the child care facility can be characterized as the sole primary use "of the property" overlook the second half of the disjunctive statutory phrase, "use of land or structures." The board thereby runs afoul of Watros v. Greater Lynn Mental Health & Retardation Assn., Inc., 421 Mass. 106, 653 N.E.2d 589 (1995), dealing with the educational purpose exemption of the second paragraph of § 3.
In dismissing the argument of abutters who challenged the proposed use on residential property of a barn to house and educate retarded adults--that the exemption applied only when the educational use occupied the entire property--the court in Watros stressed that the second paragraph "speaks not once, but twice, of 'land or structures' as the focus of the exemption." 421 Mass. at 113, 653 N.E.2d 589. The "constrictive result" flowing from the abutters' reading of the statute was "neither required by the language of the statute nor consistent with its purpose," id. at 114, 653 N.E.2d 589, which was "to prevent local interference with the use of real property"--whether of land or of structures thereon--for the exempt purposes identified in the statute. Id. at 113, 653 N.E.2d 589. Here, also, the plain language of the statute (which, as in Watros, speaks not once but twice of "land or structures") and its manifest intent--to broaden, rather than narrow, the opportunities for establishing child care facilities in the Commonwealth 7--overwhelm the board's constrictive effort to parse any substantial child care facility on a residential property out of the statute. 8
2. Reasonableness of regulations. As in Campbell v. City Council of Lynn, 415 Mass. 772, 777 & n. 6, 616 N.E.2d 445 (1993), we are concerned with a prior nonconforming structure. Despite the Campbell precedent, however, there was no inquiry as to whether alterations necessary to transform the barn into a child care facility would take it outside the protection granted by G.L. c. 40A, § 6, to prior nonconforming structures. Pursuant to G.L. c. 40A, § 3, there could be no denial of the right to use the barn as a child care facility. Accordingly, analysis pursuant to § 6 would not turn on any impact of the use of the barn as a child care facility but on whether the barn structure, as altered, would be substantially more detrimental to the neighborhood than the existing nonconforming structure.
This case was decided in the Land Court solely on the basis of G.L. c. 40A, § 3, third par., and, while it appears unlikely that the proposed renovations of the barn would fail the § 6 test, the record does not invite resolution under § 6. In any event, we conclude that Petrucci is entitled to relief based on § 3 and that there is no reason to require proceedings under § 6. See Campbell v. City Council of Lynn, 415 Mass. at 777-778 n. 6, 616 N.E.2d 445.
The judge ruled that Petrucci had successfully demonstrated the unreasonableness of the dimensional requirements that the commissioner and the board imposed upon the barn. The relevant sections of the by-law require a side yard width of twenty feet and a rear yard depth of thirty feet, with a maximum building height of twenty-five feet. The barn is over thirty-four feet high and is located only twelve feet from both the side and rear lot lines. Compliance with the zoning requirements is possible only if the barn is physically relocated on the lot. 9
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