Agenda - Planning Commission - 09/06/2018

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July 25, 2018 I Volume 12 I Issue 14 Zoning Bulletin sioner determined that since § 2640 dictated that the "largest and smallest structures" within 250 feet be excluded from the scale calculation for proposed new construction, then § 2640 placed "no constraints on the size of building that Sikorski could build as of right." Jonathan Sinaiko and Camille Cabrey (the "Abutters") appealed the build- ing commissioner's decision. They argued that the plain language of § 2640 required its application to all new construction —including that proposed by Sikorski, and that, as applied, the by-law required Sikorski to seek a special permit for his proposed building since its 33,810 cubic feet in volume was over five times as large as the 6,380 cubic foot mean volume of the two structures within 250 feet of the center of Sikorski's Lot. The Board affirmed the building commissioner's decision. The Board agreed with the building commissioner's interpretation of the application of § 2640, and found that, in this case, "there [was] no scale calculation proce- dure to follow." The Abutters appealed. Finding there was not material issue of fact in dispute, and deciding the matter based on the law alone, the superior court af- firmed the Board's decision. The court reasoned that § 2640 was "ambiguous because it did not address how the neighborhood average was to be calculated in the circumstances of this case" (i.e., where there are only two structures within the 250-foot radius of the center of the parcel). The court found it rea- sonable for the Board to concluded that "where no qualifying structures exist in the 250[-]foot radius, there is no existing scale which must be protected." The Abutters again appealed. DECISION: Judgment of superior court reversed. The Appeals Court of Massachusetts agreed with the Abutters' arguments. It held that by its plain language, § 2640 was "applicable to all new build- ings," and the Board was therefore "not free to determine that the by-law simply [was] inapplicable." Having determined that § 2640 applied to Sikorski's proposed structure, the court next looked at how the neighborhood scale average was to be calculated in the circumstances presented. The court concluded that there was an inter- pretation of the by-law that would "accord both its language and its express purpose." The court found that "[n]othing in the language of § 2640 com- pelled the building commissioner to exclude existing structures when doing so would leave him without a basis upon which to set a neighborhood average." In fact, the court found that "the specific language of the by-law cuts in the other direction." Finding that the terms "largest" and "smallest" that appear in the by-law properly are used only in relation to three or more items, the court concluded that "a grammatically correct reading of the by-law's plain language, the directive that the building commissioner exclude the `largest' and `smallest' structures in calculating a neighborhood average would apply only where there are three or more structures within 250 feet of the applicable measuring point." Applying such an interpretation here, the court found that the two structures within 250 feet of the applicable measuring point would not be excluded in calculating the neighborhood average. With Sikorski's proposed structure having a volume five times greater than 8 © 2018 Thomson Reuters