Troubleshooters and Why Words Matter: Appeals Court Overturns Board’s Interpretation of Zoning Bylaw

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As municipalities assert more control over development, zoning bylaws become more complex. And as mechanics, programmers, and lawyers all know, when there are many parts, there are many more opportunities for things to go wrong. Hence, the value of troubleshooting.

Provincetown learned this the hard way. In Sinaiko v. Zoning Board of Appeals of Provincetown, the building inspector’s interpretation of a zoning bylaw prevailed before the local zoning board and the Superior Court, only to be overturned by the Appeals Court because the bylaw had not been de-bugged.

Sinaiko concerns a zoning bylaw intended to regulate the size of all new buildings and additions in Provincetown – an effort to ensure a “relatively consistent and harmonious scale within neighborhoods.” The bylaw limits the size of by-right construction of a new building or expansion of an existing building. For new construction, the by-right limit is 25% larger than the average size of buildings within 250 feet of the “center of the parcel.” For expansions, the limit is 25% larger than the average size of buildings within 250 feet of the “center of the proposed renovation.” In both cases, “the largest and smallest structures” within the 250-foot radius are excluded from the average. Anything above the by-right limit requires a special permit.

In Sinaiko, the lot was long and narrow, and a new building was proposed. Geology lessons aside, this means the “center of the parcel” is a long ways from the frontage, making it unlikely that there are many other buildings within 250 feet. Indeed, there were only two: one with a volume of 4,560 cubic feet (cf), the other with a volume of 4,560 cf. By contrast, the proposed building was 33,810 cf. The building inspector took the position that the only two buildings within 250 feet of the proposed building were excluded as “the largest and smallest structures” – resulting in no average with which to compare the proposed building. In the building inspector’s view, this gave the landowner a free pass from the size-limiting bylaw. By contrast, abutters asserted that, due to the exclusion of the only two buildings, the average size of buildings within 250 feet was 0. This would require a special permit for any construction, no matter how large or small. (This likely violates SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984), but that appears not have come up.)

The Appeals Court disagreed with both sides. It held that a plain reading of the bylaw required the town to average the size of the two buildings within 250 feet of the proposed building and limit the by-right size of the proposed building to 25% larger than this average. It found that the words “largest” and “smallest” – for purposes of excluding buildings from the average – were “superlative” adjectives that, according to the Chicago Manual of Style, express “the relationship between at least three things…” Because there were only two buildings, the terms “largest” and “smallest” did not apply; thus, no buildings were to be excluded from the average.

Sinaiko is a reminder that reviewing courts will read bylaw language carefully and look for a common-sense application to the facts; they will not adopt a town’s interpretation willy-nilly. But more than that, this case is a reminder that bylaws need to be drafted with all possible applications in mind.

There is little doubt that, had the drafters of Provincetown’s bylaw anticipated the facts of this case, they would have addressed them specifically, rather than rely on a court citing the definition of “superlative” adjectives. Techies are not the only ones who need to find and fix bugs. Those who draft zoning bylaws face the same problem. Someday there may be a professional “genius bar” to troubleshoot and de-bug bylaws. For now, it’s planners beware.