GORDON C. ANDREWS v. ZONING BOARD OF APPEALS OF HALIFAX & Others (And Two Consolidated Cases).

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

23-P-120

GORDON C. ANDREWS

vs.

ZONING BOARD OF APPEALS OF HALIFAX & others1 (and two
consolidated cases2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These consolidated cases concern a proposed twelve-unit,

multifamily project in the town of Halifax, known as Amanda's

Estates. A judge of the Land Court concluded that the site plan

approval issued in 2014 required the trustees of the Party Trust

(developer) to formally subdivide the property, and the 2019

modified plan submitted by the developer did not comply with the

town's zoning bylaw (bylaw), which also required formal

subdivision of the site. Judgments entered directing revocation

1Corrie S. Merritt, Amanda Monti, and Edward Johnson, as
trustees of the Party Trust.

2Andrews vs. Zoning Bd. of Appeal of Halifax & another;
Andrews vs. Zoning Bd. of Appeals of Halifax & others.
of building permits issued by the town's building inspector in

2020, along with a certificate of occupancy. For the reasons

that follow, we affirm in part, vacate in part, and remand for

the entry of orders directing the zoning board of appeals

(board) to reinstate the 2020 building permits and the

certificate of occupancy.

Background. 1. The site and the bylaw. The site is in

the town's agricultural-residential (AR) zoning district and

contains 12.5 acres. The developer proposes to construct twelve

units of multifamily housing, which are allowed by special

permit in the AR district. The units will be accessed from Elm

Street, a public way, by Amanda's Way, a private way or driveway

shown on the plan as terminating in a large cul-de-sac. At the

heart of this controversy are several pivotal provisions of the

bylaw applicable to multifamily developments. We set them out

in detail.

The definition section of the bylaw defines a "multifamily

dwelling" as "[a] building intended and designed to be occupied

by more than one (1) family, living independently in separate

units." It defines "multifamily development" as a "development

of three (3) or more dwelling units on a single lot of land

under one (1) ownership of not less than ten (10) acres in size"

(emphasis added). The bylaw defines "lot" as "[a] single area

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of land in one (1) ownership defined by metes and bounds or

boundary lines in a recorded deed or recorded plan" (emphasis

added).3

After listing "multifamily dwellings" as a use allowed in

the AR district by special permit in its schedule of use

regulations, § 167-7(D)(2) of the bylaw more specifically

provides that "multifamily developments" are also allowed by

special permit from the board in the town's AR district.

Section 167-12(A) of the bylaw provides density restrictions for

multifamily developments, including that "[t]he number of units

in a multifamily development shall not exceed the number of

acres in the parcel on which they are to be built," and that

"[t]he minimum parcel size shall be ten (10) acres" -- the same

as provided in the definition of "multifamily development." In

addition, minimum front and rear setbacks are set at seventy-

five feet and one hundred feet, respectively, and "there shall

be at least one hundred (100) feet between any two (2)

buildings."4 There is no express frontage requirement. Section

3 "Recorded" means "[r]ecorded or registered in the Plymouth
County Registry of Deeds, or a recorded title to a parcel of
land disclosed by any or all pertinent records."

4 In addition, there is a required thirty-foot minimum side
yard between the development and adjacent properties.

3
167-12(A)(7)(c), however, requires "adequate space" in front of

each building, for fire apparatus to approach.

To summarize, by definition "a multifamily development"

must be three or more units; on a "single lot of land" of at

least ten acres and described in a recorded deed or recorded

plan; the number of units may not exceed the number of acres of

the parcel; and there must be one hundred feet between

buildings.

To complicate matters, the term "multifamily development

complex" is introduced for the first time in § 167-7(D)(2)(a),

which the judge and parties refer to as "[s]ubsection (a)."

Subsection (a) provides that "any multifamily development

complex proposed hereunder shall locate each building on an

individual lot which shall have continuous frontage on a public

or private way." The term "complex" is not defined in the bylaw

and the few references in the bylaw to a "multifamily

development complex" shed little light on its definition.

2. Procedural history. The procedural history is

undisputed. The proposed project first received site plan

approval from the town's planning board on September 18, 2014,

and a special permit from the board in 2015, neither of which

was appealed. Although the original plans showed one large lot

and six duplex-buildings, at the request of the planning board,

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the site plan was amended to show, with solid lines, each

building on an individual lot (Lots A-F). However, there exists

no recorded plan showing those lots. The board issued a special

permit pursuant to a revised site plan that moved the sidewalk

along Amanda's Way away from the Andrews property, but still

showed Lots A-F.

After considerable site work including construction of

Amanda's Way had been accomplished in reliance on the site plan

approval and special permit, the building inspector granted four

building permits for two duplexes in May 2017. The plaintiff,

abutter Gordon C. Andrews, appealed to the board from the grant

of the building permits, arguing that Lots A-F were not legal

lots because they were not shown on a plan recorded in the

registry of deeds and that the lot had to be formally

subdivided. Andrews also requested that the building inspector

enforce the zoning bylaw which, he asserted, required legal

lots. The building inspector upheld the building permits and

denied Andrews's enforcement request, and the board affirmed

both decisions. Thereafter, Andrews commenced an action in the

Land Court against the board and the building inspector, seeking

review of those decisions (action 17 MISC 000507). The

developer was allowed to intervene. Without waiting for the

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results of that appeal, the developer proceeded to construct

four units (two duplexes).

The judge remanded to the board for consideration of two

issues, (1) whether the 2014 site plan and 2015 special permit

required the developer to locate each proposed building on a

"separate lot" and (2) whether the project meets the bylaw's

definition of a "multifamily development." The board's decision

after remand concluded that the proposed project meets the

definition of a "multifamily development;" that neither the

bylaw, the site plan approval, nor the special permit require

that the property be formally subdivided into individual lots;

and that the individual-lot requirement contained in the bylaw

is only to demonstrate that the project does not exceed the

number of dwellings allowed.

Proceedings continued in the Land Court after the board

reached its decision on remand, and on cross motions for summary

judgment, the judge granted partial summary judgment to the

developer on the narrow issue whether the provisions of § 167-

10(B) of the bylaw -- specifically the general frontage

requirement for the AR district -- apply to the proposed

project. The judge concluded that the specific provisions of

§ 167-12(A) replace the general provisions of § 167-10(B).

Summary judgment was denied on the remaining issues and trial

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proceeded on two issues: (1) whether the 2014 site plan

approval required subdivision of the site prior to issuing

building permits; and (2) whether the special permit required

such subdivision. After trial, the judge answered the first

question in the affirmative and entered a judgment, dated

December 16, 2019, ordering that the building permits be

revoked. The judge did not decide the issue whether the bylaw

requires formal subdivision to create individual lots. Both

parties appealed -- Andrews from so much of the judgment that

concluded the general frontage requirements for the AR district

do not apply.

In 2019, the developer applied to the planning board and

then the board for modifications of the site plan and special

permit. Those modifications reconfigured the lots, placing each

constructed duplex on a "lot" (lots 1 and 3) and placing two

duplexes connected by a breezeway on each of two other lots

(lots 2 and 4). The site plan bore a note stating that "All lot

designations and lot lines shown on plans are for dimensional

purposes only." The planning board approved the modified site

plan, and the board approved the special permit based on the

modified site plan. Andrews filed a second action in the

Superior Court appealing from the board's modification of the

special permit (action 2083CV000256), and the same Land Court

7
judge was designated as a justice of the Superior Court for

purposes of deciding it.

On March 16, 2020, the building inspector issued four

modified building permits for each of the constructed units, and

a certificate of occupancy for one of the units ("the 2020

permits"). Andrews commenced a third action on September 11,

2020, appealing in count one from the board's denial of his

challenge to the 2020 permits and in count two challenging the

denial of Andrews's enforcement request (action 20 MISC 000372).

Andrews's complaint also sought a declaratory judgment that

subsection (a) applies to the project. Expressly seeking to

interpret the bylaw "to give effect 'to all its provisions, so

that no part will be inoperative or superfluous,'" Shirley

Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461

Mass. 469, 477 (2012), quoting Connors v. Annino, 460 Mass. 790,

796 (2011), the judge concluded that a "'multifamily development

complex' under the By-Law is a subset of multifamily

developments" and that a "complex" is a multifamily development

comprised of two or more buildings. The judge used the

dictionary term for "complex," which is "[c]onsisting of

interconnected or interwoven parts; composite; compound," and

concluded that the term "complex" distinguished between single-

building multifamily developments and those comprised of two or

8
more buildings. The judge concluded that if the multifamily

development is sited within one building, it can ignore

subsection (a); if the development encompasses multiple

buildings, the developer must comply with subsection (a). Once

again, the Land Court vacated the permits, by two judgments

dated August 23, 2022. The developer appealed, and the three

appeals were consolidated in this court for briefing and

decision.

Discussion. 1. Timeliness. The developer first argues

that because Andrews did not appeal from the 2015 special permit

and the 2014 site plan approval, his challenge to the 2017

building permits were in fact a belated attempt to appeal from

the approval of the site plan and special permit. In the

circumstances of this case, where Andrews reasonably could have

interpreted the 2015 special permit and 2014 site plan as

requiring subdivision of Lots A-F, we discern no impediment to

Andrews's challenge of the building permits, issued without

subdivision approval -- Andrews was in effect seeking

enforcement of the 2015 special permit.5

2. Application of subsection (a). "[B]ecause the Land

Court judge decided [this issue] on cross motions for summary

5 We need not reach the issue whether a failure to appeal
from a special permit and site plan makes a challenge to a
subsequent building permit untimely.

9
judgment, we give no deference to [his] decision" (citation

omitted). Pinecroft Dev., Inc. v. Zoning Bd. of Appeals of W.

Boylston, 101 Mass. App. Ct. 122, 128 (2022). "We review

interpretations of zoning bylaws de novo and according to

traditional rules of statutory construction." Id. Where "terms

are undefined or otherwise ambiguous, we will defer to a local

zoning board's reasonable interpretation" unless "it is

inconsistent with that provision's purpose or the bylaw as a

whole." Id. "[A] judge must review with deference legal

conclusions within the authority of the board," at least in part

because of the board's "special knowledge of 'the history and

purpose of its town's zoning by-law'" (citation omitted).

Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of

Appeal of Billerica, 454 Mass. 374, 381 (2009). "[T]he decision

of a board 'cannot be disturbed unless it is based on a legally

untenable ground' or is based on an 'unreasonable, whimsical,

capricious or arbitrary' exercise of its judgment in applying

land use regulation to the facts as found by the judge"

(citation omitted). Id.

The judge found that subsection (a) "means what it says:

each building in a multifamily development complex must be on an

'individual lot which shall have continuous frontage on a public

or private way,'" and that the project does not comply with that

10
requirement, as there is no recorded plan that shows each of the

development's existing and proposed duplexes on an individual

legal lot. The board's view, in its decision, was that the

individual-lot requirement is simply to show the density and not

a requirement that formal subdivision is necessary. Thus, on

appeal, the developer focuses on the requirements of subsection

(a) and whether it must obtain subdivision approval and record a

subdivision plan showing individual lots for each building.

We focus, instead, on whether subsection (a) even applies

to the proposed project. We examine the definition of

"multifamily development" as compared to "multifamily

development complex" as those terms are used in the bylaw. We

do so because the "lot" requirements for "multifamily

developments" as they are specifically defined in the bylaw and

the "lot" requirements for a multifamily development "complex"

are different. By definition, a multifamily development

consists of three or more dwelling units "on a single lot of

land under one (1) ownership of not less than ten (10) acres in

size" (emphasis added). Subsection (a), applicable to a

multifamily development "complex," requires each building to be

placed on an individual lot with frontage on a public or private

way. As the judge concluded, reasonably read, a "multifamily

development" and a "multifamily development complex" are

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different in some meaningful way and subsection (a) applies only

to "multifamily development complex[es]." This is true because

if both the definition of multifamily development (requiring a

ten-acre lot minimum) and the individual-lot requirement for

each building contained in subsection (a) applicable to

multifamily development complexes are read together, each

building would have to be placed on an individual ten-acre lot

and each building would have to have three or more units. We

agree with the board that the town could not have intended such

an absurd result. If the individual-lot requirement were

applied, the 2014-2015 plans would not even show a "multifamily

development" because the individual lots would not contain three

or more units.

Quite simply, the town failed to define "complex." It is

true that the meaning of words used but not defined in a bylaw

are "construed in accordance with common understanding and

usage." Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass.

531, 534 (2006), quoting Davis v. Zoning Bd. of Chatham, 52

Mass. App. Ct. 349, 361 n.16 (2001). We depart from the judge's

interpretation, however, because common usage of "development"

and "complex" both encompass the potential for more than one

building. Here, that the "multifamily development" regulations

clearly envisioned the possibility of multiple buildings is

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evident by the requirement of one hundred feet between

buildings, and that there be "adequate space in front of each

building for fire apparatus to approach the buildings." Thus,

we cannot conclude that a multifamily development complex simply

means a multifamily development with more than one building.

The record is barren of any evidence of the town's intent

in using the term "complex." It may have intended to

distinguish multifamily developments of a specific size, or

which include a variety of structures including pools, a club

house, or function facilities, or even multifamily developments

that could not meet the ten-acre minimum or proposed less-than-

three dwelling units. However, the modified development meets

all of the criteria for a "multifamily development" in terms of

lot size and density -- it is twelve acres and it proposes

twelve units.6 We conclude that where the ordinance clearly

defines "multifamily development(s)" and the proposed project

fits the definition, and "complex" is undefined and there has

been no concrete reason given to compel the conclusion that the

proposed plans shows a "complex" as that term is used in the

bylaw, the board reasonably granted the modified 2020 special

6 The 2019 site plan that was approved by the 2020 special
permit shows two duplexes connected by a breezeway. The Land
Court judge noted that the parties did not brief whether the
connected duplexes constitute a single building. Where it was
not briefed below or on appeal, we consider the issue waived.

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permit and the building inspector reasonably granted the

associated building permits and certificate of occupancy. The

bylaw does not require that each building of a "multifamily

development" be shown on an individual lot with frontage on a

public or private way.

We are aware that the board's interpretation of the

multifamily provisions of the bylaw has varied, and that at

least initially, the board and the planning board required that

individual lots be shown for each building for the project at

issue. Town counsel also concluded that the individual-lot

requirement applies to this project. We conclude, however, that

any inconsistency in the interpretation of the bylaw stems from

the town's failure to define "complex" while adopting seemingly

conflicting lot size requirements.7

3. Frontage requirement. The board and the judge

concluded that the bylaw provisions regulating multifamily

developments do not contain a frontage requirement. Andrews

argues that the judge erred in not applying the general frontage

requirement applicable in the AR district, which is 150 feet of

continuous frontage. Where the bylaw provides general density

regulations and then specific density regulations for a

7 Andrews suggests that the board has treated similarly
situated applicants differently but makes no specific claim
based on disparate treatment.

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multifamily development that includes no frontage requirement,

we cannot say the judge erred in applying the more specific

provision. See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215

(1997). Moreover, the conclusion that there is no frontage

requirement is supported the provision requiring adequate

frontage for fire trucks, which would be unnecessary if the 150-

foot frontage requirement applied to multifamily dwellings. We

discern no error in the board's reasonable interpretation of its

bylaw.

Conclusion. We agree with the judge that the 2014 site

plan, showing what purported to be legal individual lots, and

2015 special permit based on that site plan, contemplated formal

subdivision of the lot to create Lots A-F. Thus, in action 17

MISC 000507, the judgment dated December 16, 2019, is affirmed.

As for the modified plan at issue in actions 2083CV000256 and 20

MISC 000372, we vacate the judgments dated August 23, 2022, in

which the judge concluded that the bylaw requires each building

to be on a subdivided lot and revoking the building permits,

certificate of occupancy, and site plan and special permit

decisions; and we remand those cases for entry of orders

reinstating the 2020 permits and certificate of occupancy. A

declaration shall enter that where a proposal meets the bylaw's

definition of a "multifamily development," the single-lot

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requirement for multifamily development complexes does not

apply. We remand actions 2083CV000256 and 20 MISC 000372 to the

Land Court for the entry of orders consistent with this

decision.8

So ordered.

By the Court (Meade, Blake &
Neyman, JJ.9),

Clerk

Entered: August 1, 2024.

8 Both Andrews's and the developer's request for costs and
other relief are denied.

9 The panelists are listed in order of seniority.

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