Rufo v. Wash. Oak Square Ltd.

92 Mass.App.Ct. 1110

94 N.E.3d 438 (Table)

Susan RUFO, trustee,¹ & others²

v.WASHINGTON OAK SQUARE LIMITED PARTNERSHIP & others.³

16–P–978

Appeals Court of Massachusetts.

Entered: October 24, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The dispute in this case arises from the proposed construction of multiresidential buildings on property located in the Brighton section of Boston. The plaintiffs, Susan Rufo and Patrick Galvin, are direct abutters to the property. They commenced this action seeking to annul two variances issued by the defendant zoning board of appeal of Boston (board), to Washington Oak Square Limited Partnership (Washington Oak) in connection with the project. The plaintiffs now appeal from the entry of summary judgment affirming the board's actions.⁵ We affirm the judgment.

Background. The following material facts are undisputed. Washington Oak owns two adjoining parcels of land located at 458 and 460 Washington Street in Boston (lot 1 and lot 2 respectively). The property is zoned for commercial use. In 2012, Washington Oak applied for a permit to construct a twenty-four unit apartment building on lot 2 and to redevelop, into four residential units, the interior of an existing funeral home located on lot 1. The applications were denied, and Washington Oak appealed to the board. On September 11, 2012, the board held a public hearing at which it heard evidence regarding the size of the combined lots, the proposed number of units and their respective sizes, available parking, and the demand for housing. On March 12, 2013, the board granted variances which would permit construction of the project.

Soon thereafter, the plaintiffs commenced an action in the Superior Court seeking review of the board's decision under the Boston Zoning Act, St. 1956, c. 665, § 11, as amended by St. 1993, c. 461, § 5. All parties moved for summary judgment. In a written decision, a Superior Court judge concluded that the plaintiffs had standing to challenge the board's decision. The judge also concluded that the board's decision was not unreasonable, arbitrary, or capricious, but she remanded the matter to the board for further proceedings because the board failed to set forth findings of fact as required by § 7–3 of the Boston zoning code.

In response to the remand order, the board held a second hearing on September 2, 2014, and subsequently issued a new decision that included (1) findings regarding the characteristics of the property and the proposed project, and (2) an explanation of the board's analysis. The board again granted the variances.

Meanwhile, before the board's second decision issued, Rufo requested the minutes of three board meetings that took place in 2012 and 2013, at which Washington Oak's proposed development was discussed. Having received no response to her request, Rufo contacted the Attorney General. Ultimately, the Attorney General determined that the board had violated the open meeting law, see G. L. c. 30A, § 22(a ), and ordered the board to create and approve minutes of the meetings, which the board did.

The plaintiffs then filed the current action in the Superior Court. Washington Oak moved for summary judgment on the grounds that the plaintiffs lacked standing and were estopped from challenging the board's decisions, and the board moved for summary judgment on the ground that it had properly granted the variances. The plaintiffs cross-moved for summary judgment on the ground that the variances were not granted in strict compliance with § 7 of the Boston zoning code. In a well-reasoned decision, a different Superior Court judge rejected Washington Oak's arguments regarding standing and estoppel. However, he concluded that Washington Oak was entitled to summary judgment because the board had adhered to both the Boston zoning code and its enabling act when it granted the variances.

Discussion. "When a decision of a zoning board of appeals is appealed, ‘the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him.’ "⁶ Furlong v. Zoning Bd. of Appeals of Salem, 90 Mass. App. Ct. 737, 739 (2016), quoting from Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972) (considering appeal under G. L. c. 40A, § 17 ). The judge may not reverse a board's decision "unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Ibid., quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999). "We review the judge's determinations of law, including interpretations of zoning by-laws, de novo, but we remain ‘highly deferential’ to a board's interpretation of its own ordinances." Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871, 873 (2015), quoting from Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728–729 (2013). Where, as here, the judge has made no findings because the matter was presented on cross motions for summary judgment, "we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party." Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014), S.C., 473 Mass. 672 (2016). Summary judgment is appropriate only where "all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

The plaintiffs assert that summary judgment should not have been allowed for two primary reasons: first, they claim that the evidence the board considered does not demonstrate that Washington Oak would suffer a "substantial hardship" within the meaning of § 7–3 of the Boston zoning code, which authorizes variances; and second, they claim that the board's violation of the open meeting law voids the decision to grant the variances. We address each argument in turn.

1. The board's decision to grant the variances. Insofar as is applicable here, the board may grant a variance pursuant to § 7–3 of the Boston zoning code only if all of the following conditions are met:

"(a) That there are special circumstances or conditions, fully described in the findings, applying to the land or structure for which the variance is sought (such as, but not limited to, the exceptional narrowness, shallowness, or shape of the lot, or exceptional topographical conditions thereof) which circumstances or conditions are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this code would deprive the appellant of the reasonable use of such land or structure;

"(b) That, for reasons of practical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of the variance is necessary for the reasonable use of the land or structure and that the variance as granted by the Board is the minimum variance that will accomplish this purpose; [and]

"(c) That the granting of the variance will be in harmony with the general purpose and intent of this code, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare."

We conclude that the board's detailed factual findings are sufficient to satisfy the statutory prerequisites. With respect to lot 1, the board found that

"[t]he existing structure is a colonial type building which has been used as a funeral home for many years.... [The] Allston Historic Society requested that the overall façade be maintained as the structure sits on a foundation built in the 1700's and the layout of the building forms a crucifix which makes the property unique.... The allowed uses would be such that it is likely that any allowed use of the property would require the demolition of the existing structure. The residential use would not alter the exterior character of the building and would enable the building to remain intact. In fact the residential use is more akin to the prior use as a funeral home than would be any

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