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17-P-1123                                            Appeals Court

  JONATHAN SINAIKO & another1 vs. ZONING BOARD OF APPEALS OF
                    PROVINCETOWN & others.2


                            No. 17-P-1123.

          Barnstable.      March 12, 2018. - May 25, 2018.

            Present:    Milkey, Maldonado, & Desmond, JJ.


Zoning, By-law, Judicial review, Board of appeals:     decision.



     Civil action commenced in the Superior Court Department on
September 25, 2015.

     The case was heard by Robert C. Rufo, J., on motions for
summary judgment.


    Brian J. Wall for the plaintiffs.
    Christopher J. Snow for David Mayo & another.


    MILKEY, J.    Defendant Stanley Sikorski wants to build a

four-bedroom, two-and-a-half story single family residence on a

vacant lot (lot) in Provincetown (town).     At issue is the



    1   Camille Cabrey.

    2   David Mayo and Stanley Sikorski.
                                                                    2


application of § 2640 of the town zoning by-law (by-law), which

regulates the scale of new construction and additions.    Despite

the fact that § 2640 expressly states that it "is applicable to

all new buildings and all additions in all zoning districts in

Provincetown," the building commissioner and zoning board of

appeals (board) concluded that the by-law's proscriptions were

inapplicable to the proposed building here.    In an appeal

brought by abutters Jonathan Sinaiko and Camille Cabrey

(abutters) pursuant to G. L. c. 40A, § 17, a Superior Court

judge upheld the board's decision on cross motions for summary

judgment.   The abutters now appeal, arguing that the plain

language of § 2640 requires its application here, and that, as

applied, the by-law requires Sikorski to seek a special permit

for his proposed building.   Because we agree, we reverse the

judgment.

    Background.3   a.   The by-law.   Section 2640 of the by-law

regulates building scale.    Its express purpose is to preserve

the town's existing character of "buildings that have relatively

consistent and harmonious scale within neighborhoods," and to

prevent the construction of "[n]ewer buildings, where the

appropriate scale has not been maintained, [that] have disrupted




    3  The material facts are undisputed. The parties jointly
submitted a statement of agreed material facts, to which
relevant documents were appended as exhibits.
                                                                    3


the character of the neighborhoods."    By-law § 2640(B).   To

serve these ends, the by-law limits the size of new buildings

and building additions that can be constructed.     Those limits

are keyed to the size of existing structures (measured by

volume) that already exist in the relevant area.

     Under the terms of § 2640, a landowner can -- as of right

-- build a new structure (or expand an existing structure) that

is up to twenty-five percent larger than the average size of

existing buildings in the area (referred to in the by-law as the

"neighborhood average").4    By-law § 2640(D).   A landowner can

seek to construct a larger building than can be built as of

right by applying for a special permit from the board.      Id. §

2640(E).   The board is vested with broad discretion to grant a

special permit where "the deviation [from the scale allowed as

of right] is appropriate and [the proposal] meets one or more of

[six enumerated] criteria" (the specifics of which we reserve

for later discussion).   Ibid.

     The details of how the neighborhood average is to be

calculated are important.5   That average is set based on existing


     4 In the town's historic district, only fifteen percent
increases are allowed as of right. By-law § 2640(D).

     5 The specific requirements that follow are all set forth in
§ 2640 itself. That section also states that "[d]etermination
of existing and proposed building volume and neighborhood
average shall be directed by the [building commissioner] based
on the established methodology by calculating the volume in
                                                                      4


structures that lie within 250 feet of the applicable measuring

point.    That measuring point in turn varies depending on whether

the proposal is for new construction or for the expansion of an

existing structure.   For new construction, the starting point is

"the center of the parcel," while for proposed expansions it is

"the center of the proposed renovation."    By-law § 2640(C).

Generally, all existing structures that lie within 250 feet of

the applicable measuring point are to be included, with the

qualification that "the largest and smallest structures" within

that radius are to be excluded.6   Ibid.   Thus, the neighborhood

average employs a form of what statisticians refer to as a

"trimmed mean."   See Oxford Dictionary of Statistical Terms 412

(6th ed. 2006).

     b.   The proposed building.   The lot in question is owned by

defendant David Mayo, but Sikorski apparently has agreed to

purchase it contingent on his obtaining a building permit.      The

lot, which is rectangular, is over one acre in size, but it is



cubic feet of the building that is above grade, including roofs
and porches." By-law § 2640(C). In this manner, certain
details of precisely how building volume is to be calculated
appear to be left to administrative norms. For example, we know
from the record that the town employs a particular computer
program and database to measure building volumes and that all
buildings are "considered to have [ten] foot ceilings." Such
details are not in dispute in the current case.

     6 In addition, certain small stand-alone structures are not
included in setting the neighborhood average, by-law § 2640(C),
a detail that has no bearing on the current controversy.
                                                                    5


exceptionally long and narrow.    Specifically, the lot is only

forty-nine feet wide, but over 1,000 thousand feet long.       One of

the narrow sides fronts on Bradford Street, with the lot

extending north from that street deep into a wooded area.7

     Sikorski originally proposed to build a two-family

residence at a particular location on the lot.    Because of

neighborhood opposition to that proposal, Sikorski changed it to

a single-family home, reduced its size, moved its location on

the lot, and modified its design in certain respects.     Under the

revised proposal, the building would remain a not insubstantial

structure.     For example, the building will include two-and-a-

half stories8 -- the maximum allowed in the town9 -- and comprise

33,810 cubic feet in volume.10




     7 The record reveals that there are other lots in the area -
- including those on either side of this lot -- that have a
similar shape, but are not quite as narrow.

     8 It appears that under a different provision of the town's
zoning by-law, a top floor under a pitched roof is considered
only half of a story if less than fifty percent of it lies under
dormers. See by-law, Article 1 (definitions).

     9    See by-law § 2560.

     10We caution the reader that this figure is in cubic feet,
not the more familiar measure of square feet. Although we know
that the town treats each story as being ten feet tall, it is
not clear on the record before us how the town measures the
volume of "half stories." As a matter of simple arithmetic, one
can discern that the proposed building is at least 3,381 square
feet in size.
                                                                     6


       The proposed house is to be located at the southern edge of

the lot, that is, next to Bradford Street.    It is undisputed

that there are many existing structures in close proximity to

that proposed location.    For example, as the abutters pointed

out in their appeal to the board, there are approximately

sixteen structures that lie within 250 foot of the center of the

proposed building, and the average volume of those structures --

not including the largest and smallest -- is 9,250 cubic feet.

Thus, the proposed building is over three times larger than what

the neighborhood average would have been if that figure were

calculated using the actual location of the proposed structure.

       As noted, however, the neighborhood average for new

construction is to be calculated based on the center of the lot,

not where the proposed building is in fact to be located.

Because of the relatively unusual shape of the lot here, that

difference has a significant effect.    There are only two

existing buildings that lie within 250 feet of the center of the

lot.    Those structures have volumes of 8,200 and 4,560 cubic

feet, respectively.    Thus, if the ordinary mean of those two

structures were used (6,380 cubic feet), the proposed structure

would be over five times as large (a disparity in scale even

greater than if the actual location were used).

       Excluding the two nearby structures from the calculation --

based on their being considered the largest and the smallest of
                                                                    7


the structures lying within 250 feet of the center of the lot --

left no existing structures on which to base a neighborhood

average.   This presented town officials with the conundrum of

how to calculate the neighborhood average here.   As evidenced by

a "scratch out" on the relevant form, an assistant assessor for

the town initially calculated the neighborhood average as zero.11

However, apparently upon further reflection, he concluded that

the neighborhood average simply was "N/A," which the parties

agree is shorthand for "not applicable."   Under this

interpretation, § 2640 placed no constraints on the size of

building that Sikorski could build as of right.   The building

commissioner relied on this interpretation in determining that a

building permit should issue.

     On an appeal brought by the abutters, the board affirmed.

While acknowledging that § 2640 was required "to be applied to

all new buildings," the board concluded that in the

circumstances of this case, "there [was] no scale calculation

procedure to follow."   The board also stated that it had taken

into consideration that Sikorski had redesigned his original

proposal to reduce its scale "in response to previous neighbor

objections."




     11Under the procedures adopted by the town, the
neighborhood average is calculated by the assessor's office,
which maintains the available database.
                                                                   8


    On cross motions for summary judgment, a Superior Court

judge affirmed the board's decision.   He reasoned that § 2640

was ambiguous because it did not address how the neighborhood

average was to be calculated in the circumstances of this case.

He then observed that the by-law's purpose was to "maintain

consistent scale among existing buildings," and that it did not

reference "preserving undeveloped land in its natural state."

Finally, he concluded that in light of this intent, "it [was]

reasonable for the [b]oard to conclude that where no qualifying

structures exist in the 250 foot radius, there is no existing

scale which must be protected."

    Discussion.   To help frame the analysis that follows, we

begin with some preliminary observations.   It is important to

keep in mind that the abutters make two different arguments.

The first is that the board's interpretation of § 2640 is

invalid because it is at odds with that section's plain language

and otherwise unreasonable.   The second is that their own

proffered interpretation (under which the neighborhood average

here had to be taken as zero) must be accepted.   These

contentions, while related, are conceptually distinct.    As

elucidated below, it is possible to conclude that the

interpretation offered by the board is untenable without

concluding that the abutters' particular counter interpretation

necessarily is required.
                                                                     9


     Overall, this case raises two inquiries.    One is whether

the building scale by-law applies.     The other is, if so, how it

applies (that is, how the neighborhood average here should be

determined).   The first question is addressed by the plain

language of the by-law, which begins with the edict that the by-

law "is applicable to all new buildings and all additions in all

zoning districts in Provincetown."12    By-law § 2640(A).   That

language is binding on the board, and the board therefore is not

free to determine that the by-law simply is inapplicable.     See

MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 640

(1970) (board of appeals could not adopt interpretation of by-

law where its plain language provided "no basis for such an

interpretation").   Cf. Warcewicz v. Department of Envtl.

Protection, 410 Mass. 548, 550 (1991) ("[C]ourts will not

hesitate to overrule agency interpretations [of their own

regulation] when those interpretations are arbitrary,

unreasonable, or inconsistent with the plain terms of the

regulation itself").

     Having resolved that § 2640 applies, we now turn to the

second inquiry:   how the neighborhood average is to be


     12The by-law includes some express exemptions, including
with regard to "remodeling where the total volume of the
building is to be reduced," "structures destroyed by fire or
other similar casualty," and additions of "less than . . . 324
cubic feet of space." By-law § 2640(A). No such exemptions
apply to the case before us.
                                                                    10


calculated in the circumstances presented.     As noted, the board

concluded that the by-law places no limits on the proposed

building's size.    As the abutters point out, having rejected a

neighborhood average of zero, the board effectively set that

average at infinity instead.

    The results of the board's interpretation are highly

anomalous:     how can it be that a proposed new building is exempt

from regulation under a generally-applicable building scale by-

law no matter how large that building would be?    In addition, by

exempting a structure that in fact grossly exceeds the scale of

other buildings in the area, the board's interpretation flies in

the face of the by-law's directive that "[a]ll new buildings or

additions shall comply with appropriate scale to their

neighborhood."    By-law § 2640(B).   Even to the extent that the

judge was correct that the by-law is ambiguous with regard to

how the neighborhood average should be interpreted in the

circumstances of this case, the board's resolution of that

ambiguity was not reasonable.    See Britton v. Zoning Bd. of

Appeals of Gloucester, 59 Mass. App. Ct. 68, 72 (2003), quoting

from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. at 639

(zoning board decision will be overturned if "based on a legally

untenable ground or it is unreasonable, whimsical, capricious or

arbitrary").    See also Pelullo v. Croft, 86 Mass. App. Ct. 908,

909 (2014) ("[A]court owes deference to the interpretation of a
                                                                 11


zoning by-law by local officials only when that interpretation

is reasonable").13

     In contrast, the abutters' alternative interpretation is

based on an arguably straightforward application of the by-law's

language:   where there are no buildings in the relevant

neighborhood, the neighborhood average is zero.   Moreover, their

interpretation does not mean that Sikorski necessarily will be


     13Sikorski and Mayo attempt to support the board's
interpretation of § 2640 by pointing out that after the
controversy about how to interpret the by-law emerged, one of
the abutters proposed an amendment to the by-law that failed to
secure a majority at town meeting, much less the two-thirds
majority necessary to pass. They argue that "[t]he rejection of
. . . [the] amendment to the scale by-law is proof that the
citizens of Provincetown were satisfied with, and in effect
ratified, the uniform interpretation of the by-law by the . . .
[b]oard . . . that the by-law is inapplicable to projects that
have no buildings within a 250 radius." This argument fails for
at least two reasons. First, "'[w]e do not draw conclusions
concerning the intent of [a legislative body] based on the
failure to enact a subsequent amendment.' See Massachusetts
Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371
Mass. 186, 193-194 (1976) ('Such inaction by a subsequent
legislative body "has no persuasive significance" with reference
to the intent of the Legislature which passed the original
bill')." Cook v. Patient Edu, LLC, 465 Mass. 548, 555 n.14
(2013). Second, the specific amendment that had been proposed
here would not have clarified that the by-law should be
interpreted along the lines that the abutters had argued.
Instead, it would have amended the by-law by making the
measuring point the center of the applicable structure,
regardless of whether the proposal was for new construction or
an addition. Thus, at least as applied to the facts of this
case, the unsuccessful amendment would have increased the
resulting neighborhood average (as compared to the zero that the
abutters asserted was appropriate under the existing by-law).
It is impossible to know whether those who voted against the
amendment did so because they favored or opposed more intensive
development.
                                                                   12


unable to build his desired house, but only that he will have to

seek a special permit to do so.   The by-law delegates to the

board broad discretion to grant case-by-case exemptions from the

by-law's strict application.14

      At the same time, the abutters' interpretation produces its

own anomalies.   How can it be, for example, that a landowner who

has proposed to construct a new structure in an area populated

by numerous other existing structures nevertheless be burdened

by a neighborhood average of zero (and thereby be forced to seek

a special permit) no matter how small his proposed structure may

be?   In addition, as a matter of mathematics, trying to divide

zero by zero is an endeavor destined to produce an indeterminate

result.




       As noted, a special permit may be granted where "the
      14

deviation [from the scale allowed as of right] is appropriate
and [the proposal] meets one or more of [six enumerated]
criteria." By-law § 2640(E). As the abutters have
acknowledged, two of those criteria potentially provide fertile
ground for Sikorski:

      "1. The proposed building or addition is in keeping with
      the goals and objectives of the Local Comprehensive Plan.

      ". . .

      "5. The proposed building or addition successfully
      integrates into its surroundings and is sited in a manner
      that minimizes the appearance of mass from the streetscape
      and will not have a significant negative impact on the
      natural light to, or views from, neighboring structures."
                                                                   13


     Thus, it is apparent that if the board's available choices

for setting the neighborhood average were limited to zero and

infinity, there are anomalies either way.   That realization

should have caused the town officials to question whether they

were limited to these two problematic options.   In other words,

could there be a third interpretation that better fit with both

the letter and intent of the by-law?   Cf. Reade v. Secretary of

the Commonwealth, 472 Mass. 573, 578 (2015), quoting from Watros

v. Greater Lynn Mental Health & Retardation Assn., 421 Mass.

106, 113 (1995) ("[I]t is a well-established canon of statutory

construction that a strictly literal reading of a statute should

not be adopted if the result will be to thwart or hamper the

accomplishment of the statute's obvious purpose, and if another

construction which would avoid this undesirable result is

possible").   One does not have to look far to find such an

interpretation.15

     Here, the building commissioner ended up with no existing

structures on which to determine a neighborhood average only

because he excluded the two existing structures that in fact are

located within 250 feet of the center of the lot.   The obvious

question is whether the terms of § 2640 required him to do so.


     15At oral argument, we inquired of the parties whether the
by-law was susceptible to a third interpretation, and we sua
sponte invited the parties to submit supplemental briefs
addressing this issue. Both parties accepted that invitation.
                                                                  14


The only apparent reason for the by-law's relying on a trimmed

mean instead of an ordinary "arithmetic mean" is to try to avoid

the problem of outliers unduly skewing the resulting average.

See Oxford Dictionary of Statistical Terms 412 (idea of trimmed

mean is "[to reduce] the sensitivity of the arithmetic mean to

extreme observations").16   In other words, excluding values at

either end is done based on the theory that doing so may yield a

more representative center value.    Here, the exclusion of the

only two available data points had the opposite result:    it left

a null set, which in turn presented town officials with having

to choose between zero and infinity as the operative

neighborhood average.

     Nothing in the language of § 2640 compelled the building

commissioner to exclude existing structures when doing so would

leave him without a basis upon which to set a neighborhood

average.17   In fact, the specific language of the by-law cuts in

the other direction.    That is because the terms "largest" and




     16See also Finkelstein & Levin, Statistics for Lawyers
§ 1.9, at 29 (1990) (characterizing trimmed mean as effort to
address fact that ordinary means are "sensitive to deviant or
outlying data points arising from a distribution with 'heavy
tails'").

     17We do not know whether -- elsewhere in the town -- there
could be situations where there are no structures within 250
feet of the applicable measuring point, and, in any event, such
a case is not before us. We therefore do not address how the
by-law should be interpreted in such a situation.
                                                                  15


"smallest" that appear in the by-law properly are used only in

relation to three or more items (for two items, "larger" and

"smaller" would be proper).    See by-law § 2640(C); Chicago

Manual of Style § 5.86, at 253 (17th ed. 2017) ("A superlative

adjective expresses the relationship between at least three

things and denotes an extreme of intensity or amount in a

particular shared quality").    Thus, under 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.    See generally

Commonwealth v. Wright, 88 Mass. App. Ct. 82, 86 (2015) ("In

interpreting legislation, we employ familiar canons of statutory

and grammatical interpretation").    Applying such an

interpretation here, the two structures within 250 feet of the

applicable measuring point would not be excluded in calculating

the neighborhood average.

    Conclusion.   In sum, we agree with the abutters both that

the by-law applies to the proposed building and that the board

unreasonably interpreted how it applies.   Although the

particular counter-interpretation proposed by the abutters has

its own problems, there is at least one interpretation of the
                                                                    16


by-law that accords with both its language and express purpose.18

The proposed building is too large to be approved under that

interpretation without a special permit.19   With none of the

defendants having offered a reasonable interpretation of the by-

law under which the proposed building could be constructed as a

matter of right, we reverse the judgment.    A new judgment shall

enter in favor of the abutters.20

                                    So ordered.




     18In the first instance, it is the board's role to decide
how to interpret the by-law, and such an interpretation must be
upheld so long as it is supported by the by-law's plain language
and is otherwise reasonable. Shirley Wayside Ltd. Partnership
v. Board of Appeals of Shirley, 461 Mass. 469, 474-475 (2012).
We therefore refrain from holding that only one specific
interpretation of the by-law is reasonable.

     19If the two existing buildings that lie within 250 feet of
the proposed building are not excluded, the neighborhood average
for the lot, as noted earlier, is 6,380 cubic feet. That means
that -- as of right -- Sikorsky is able to build a structure
twenty-five percent larger than that, that is, 7,975 cubic feet.
Sikorski's current proposal is more than four times that number.

     20Sikorski and Mayo argue that the town's interpretation
has been "long-accepted and uniformly applied," and that a
reversal here "would potentially place in jeopardy the
legitimacy of hundreds of building permits issued over the
years." Putting aside that such statements enjoy no support in
the record before us, an unlawful interpretation does not cease
to be unlawful simply because it long has been applied.
