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

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