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HomeMy WebLinkAboutPlan History and Legal Analysis from M. Johnson - Correspondence - 327 SALEM STREET 4/26/2023 i ' JOHNSON& Marc B.Johnson(MA,Nx,nc) BORNSTEIN,E LL Donald l . Borenstein(MA.ME,Nil) ATTORNEYS AT LAW Patrick M.Groulx(MA,NH) Ked M. Ar►nstrong(MA,NH) 12 Chestnut Street Gordon T,Glass(MH,MA) Andover,MA €}18!0-3706 Andrew T. Lechner(VT,MA,NI I) Tel: 978-475-4488 Fax: 978-475-6703 OPCounsel www.jbllclaw.com Robert W.Lavoie(MA,NH) mark@jbllclaw.com Paralegals Karen L. Bassell Lianne Patenaude Ellen M, Melvin Tina M. Wilson April 26, 2023 Via Emai l—fGrrttershy@rrol'N1af✓!dOVef•rrra.gov And Hand Delivered Zoning Board of Appeals c/o Jennifer Battersby, Department Assistant 120 Main Street North Andover, MA 01845 Re: 335 Salem Street--Lynn McLoughlin and John McLoughlin Plan History and Le al Analysis Concerning Zoning Bylaw Interpretation Chair Jacobs and Board Members, As you are aware, I represent Lynn McLoughlin and John McLoughlin in connection with their finding and variance applications(collectively, the "Application") relating to their property known and numbered as 335 Salem Street(the "Property"), which Application is currently pending before the Board. I write this letter to address certain questions which arose at the April 11, 2023,public hearing concerning the Application. The first question concerned the history of Form A plans relating to the Property, and the second question concerned the distinction between the use of the words"and" and "or" in a zoning bylaw, Plan Histot Both the Property and the adjacent 327 Salem Street were originally pact of one lot owned by Mr. McLoughlin's mother, Caroline, On November 2, 1981, a Form A application was submitted to the Planning Board stating that the two lots have the required frontage on a public way and the required area in accordance with the zoning by/am On November 11, 1981,the Planning Board endorsed the Form A plan creating the two lots. See Exhibit 1. Caroline McLoughlin subsequently combined the two lots pursuant to another Form A application dated November 3, ' 1983, in which she stated: It originally was a single lot. I had it subdivided and proved by the I Zoning Board of Appeals c/o Jennifer Battersby,Department Assistant April 26, 2023 Page 2 planning board but did not submit the plan to the Registi y of Deeds because I decided against building and for tax purposes, 1 wish it to remain a single lot. See Exhibit 2. Legal Analysis The following provides an analysis of the relevant legal principles concerning interpretation of zoning bylaws. I. Zoning Bylaws are Interpreted Under General Rules of Statutory Interpretation When a zoning board interprets its own zoning bylaw, it should follow the same generally established rules of statutory/legislative interpretation applied to state or federal laws. See St ller v. Zoning Bd. of Appeals of L nnfield, 487 Mass. 588, 597 (2021) (stating that interpretation of municipal law should "adher[c) to the traditional canons of statutory construction"); Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App, Ct. 539, 545 (2014) (determining principles of statutory construction apply to interpretation of zoning bylaws); Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710, 712 (2013) (providing, "When interpreting bylaws, we resort to familiar rules of statutory construction"). As such, while the majority of this letter will reference the interpretation of statutes, rather than the interpretation of local bylaws, the principles discussed herein must be followed by zoning boards interpreting zoning bylaws. IT. Statutory/Bylaw Interpretation: "And" vs. "Or" A. General Principles Importantly, the Supreme Judicial Court of the Commonwealth of Massachusetts (the "SJC") has expressly determined that, when interpreting statutes, conflation of the "disjunctive `or"' and the "conjunctive `and"' is "something for which there is no basis or logic". Commonwealth v. Rotonda, 434 Mass. 211, 218 (2001); see also Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003). Emphasis added. To wit, in the Rotonda case, the SJC explicitly and absolutely disavowed a statutory interpretation that would "convert the disjunctive `or' into the conjunctive `and"'as baseless and illogical. Rotonda, 434 Mass. at 218. It logically follows that the SJC likewise considers statutory/bylaw interpretation that converts the conjunctive "and" into the disjunctive "or"to be i Zoning Board of Appeals c/o Jennifer Battersby, Department Assistant April 26, 2023 Page 3 without basis or logic. The underlying rationale for the SJC's determination is difficult to argue against: interpreting "and"to mean "or", or vice versa,when applying federal, state, or local legislation, can fundamentall.�alter the plain, intended meaning of the legislation. Indeed, the instant case provides a perfect example. In the resent context it is c p P p p un ontrover•ted that interpretation of the term"and", as used in § 7.1(A) of the Town's Zoning Bylaw, to mean "or"would result in a wholly different application of the Zoning Bylaw from leaving"and"to simply imply its ordinary conjunctive meaning (i.e., the result would be the exclusion from the "contiguous buildable area"definition land within wetlands resource area identified under either the local Wetlands Protection Bylaw or the Massachusetts Wetlands Protection Act, rather than land within wetlands resource area identified under both pieces of legislation). See § 3(o)(1) of the Massachusetts General Court's Legislative Research and Drafting Manual„(providing," `And' means all of a list of items,"). See Exhibit 3. B. A Familiar Example The Massachusetts Appeals Court has, on at least one occasion, directly applied the distinction between the disjunctive"or"and the conjunctive "and" in the zoning interpretation context. See Kirkwood v. Board of Appeals, 17 Mass. App. Ct, 423, 427-28 (1984) (holding, "Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal" (i.e., a Zoning Board of Appeals may only grant a variance where it "specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . , but not affecting generally the zoning district in which it is located, [b] 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 [c] 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")). Emphasis added. IIL Statutory/Bylaw Interpretation: Plain and Unambiguous Language As discussed in Section II of this letter, under standard principles of statutory interpretation, the usage of"and" as a connector is plainly and unambiguously conjunctive, not disjunctive. See Commonwealth v. Trefry, 89 Mass. App. Ct. 568, 570 (2016) (finding the legislative use of"or", not"and", to signify the disjunctive); Commonwealth v. Rodriguez, 83 Mass, App. Ct, 267,270- 71 (2013) (finding the legislative use of"and"to be conjunctive, and the use of"or" to be disjunctive); § 2(A)(5)(b) of the Massachusetts General Court's Legislative Research and Zoning Board of Appeals c/o Jennifer Battersby, Department Assistant April 26, 2023 Page 4 i Drafting Manual (emphasizing, "Use a single `or' to indicate the disjunctive and,a single `and' to indicate the conjunctive"), Indeed, I have herein cited supporting precedent for the conjunctive nature of"and" from both the SJC and the Massachusetts Appeals Court, as well as harmonious and consistent legislative drafting guidance from the Massachusetts Legislature. Importantly, where language of legislation is plain and unambiguous, it must be"enforce[d] . . . according to its plain wording". Plainville Asphalt Corp., 83 Mass, App. Ct. at 713. As such, should the Zoning Board conflate the conjunctive "and", as used in § 7.1(A) of the Zoning Bylaw, with the disjunctive"or", such an interpretation of the Zoning Bylaw would disregard the relevant legal authority concerning: 1) the plain and unambiguous distinction between the disjunctive "or"and the conjunctive"and"; and 2) interpretation of plain and unambiguous language employed within zoning bylaws. See Bynes v. School Comm, of Boston,411 Mass. 264, 268 (1991) (internal citations omitted) (emphasis added), (concluding, "`It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function"of the authority charged with interpreting and enforcing the law"is to enforce it according to its terms"); see also Osborne-Trussell v. Children's Hos . CDT .,488 Mass. 248, 254 (2021) (reiterating, "If the statutory language is clear, `courts must give effect to its plain and ordinary meaning and . . . need not look beyond the words of the statute itself' ). Again, the underlying rationale for the Courts' determination concerning plain meaning interpretation of zoning bylaws is difficult to dispute. Where plain and unambiguous legislation has been promulgated; 1) the plain language of the legislation should not be disregarded in favor of an uncertain speculative process concerning the intent of the drafters—instead, it should be assumed the drafters used plain and unambiguous language because it reflected their intent;and 2) members of the affected community—in this case, the citizens of North Andover---should be able to rely on the plain language of the legislation, rather than conducting their affairs in a state of uncertainty. See Plymouth Retirement Board v. Contributory Retirement Appeal Board,483 Mass. 600, 604 (2019) (holding, "When conducting statutory interpretation, this court strives `to effectuate' the Legislature's intent by looking first to the statute's plain language"); Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008) (providing, "Ordinarily, where the language of statute is plain and unambiguous, it is conclusive as to legislative intent"). IV. Statutory/Bylaw Interpretation, Internal Consistency of a Statutory Scheme Zoning Board of Appeals C/o Jennifer Battersby, Department Assistant April 26, 2023 Page 5 Lastly, in addition to a plain language analysis, `f cjourts must look to the statutory scheme as a whole,' so as `to produce an internal consistency' within the statute". Plymouth Retirement Board, 483 Mass. at 605 (internal citations omitted), Importantly, an interpretation of the"and" in § 7.1(A) of the Zoning Bylaw to instead mean"or" would prevent inclusion of any land within I00-foot "buffer zone" in"buildable area" calculations though certain of the buffer can be built upon. The"No-Build Zone"established under the Town's Wetlands Protection Regulations is 75-foot"buffer zone" from ephemeral pools, with the remainder of the"No-Build Zone" comprising 50-foot"buffer zone". See Wetlands Protection Regulations, § 2. As such, under the Wetlands Protection Bylaw and Regulations, between 50 and 100 feet of the I00-foot"buffer zone" is considered"buildable area", contrary to an interpretation of§ 7.1(A) of the Zoning Bylaw which excludes the entirety of I00-foot"buffer zone"from being considered "buildable area". See Wetlands Protection Bylaw, § 6(A)(2). The Zoning Bylaw should be interpreted to avoid such an improper internal inconsistency within the Town's legislative scheme, which can be accomplished by interpreting the term "and" in § 7.1(A) of the Zoning Bylaw according to its plain and unambiguous conjunctive meaning. In other words,the wetlands-oriented Conservation Commission's express determination concerning the existence of"buildable area" within wetlands "buffer zone" should not be undone by the non-wetlands-oriented Zoning Board. See Plainville Asphalt Corp,, 83 Mass. App, Ct. at 713 (holding,"The town's legislative body is presumed to be aware of existing bylaws when it amends or enacts a new one. As a reviewing court, we are guided by the corollary principle that statutes or bylaws dealing with the same subject should be interpreted harmoniously to effectuate a consistent body of law"), V. Conclusion In conclusion, the Board should refrain from interpreting the conjunctive connector"and", located in § 7.1(A) of the Zoning Bylaw, to envelop the disjunctive import of the connector or thereby excluding land within I00-foot"buffer zone" from the minimum"contiguous buildable area"calculation required under the Zoning Bylaw, as such an interpretation of the Zoning Bylaw would be inconsistent with established legal principles of zoning bylaw interpretation concerning: 1) the distinction between the disjunctive"or" and the conjunctive"and"; 2) interpretation of plain and unambiguous statutory language; and 3) internal consistency of statutory schemes. Zoning Board of Appeals c/o Jennifer Battersby, Department Assistant April 26, 2023 Page 6 In short, a zoning,bylaw that is not ambiguous, such as the TowD's Zoning Bylaw, should be interpreted and applied according to its plain meaning, in harmony with other town laws. The residents of North Andover should be able to rely upon the plain words in the Zoning Bylaw. Should the Board have any questions concerning the information contained within this letter, I would be happy to provide additional information or documentation. Thank you for your attention to this matter, Very truly yours, JOHNSON & BORENSTEEN, LLC rJohn McLoughlin via entail i I i >� k r� r 4?YL7C1 UU,'1 FOR D IF.y 11oP TO L,P"�VIfi S /r:r.G AL� U Nove111bgr 2 r r z Fo tho P1inning Hoard of the Torn of North Andover: Thu unlorri nud xfcheo to record the Ft ecornanying plan and requeets a oh q by raid Board the{ z,�proval by it under the Subdivision Control Law Tile underai ned baliovee that wuoh approval is not required for tha i, The division of land shown on the aoaompanying plan D not a ou,F ,. bsoause every lot shown thereon has the amount of frontage rem*, a^ )forth.Andovar Zoning BY—Law and is on a publio ways ti3melya 1 or a private w�jr� nemeiy� being land bounded asollowai 4 NORTH_.:—SALUi.-STEEGT � EAST—�AI.Lht.STET _ SOUTH - LAND OF HENNESSEY WEST - LA14D OF CAVALLARO & MG ~ P. 7'ho division of land-shown on r,h. the following reasons: The iota have the .required area in accords. , .. 3. Title reference 1Iorth "ertificato of Title tle if Received by Totrn Cier1 f Rats: `4 E 13tAlre y Time: r a h' Signature "^ dreos r, tA14 and address;xf not thMo r "A 1 1 i 1 ...... ....... ......... .... ........ A. IA -r� L0 All�r r 9. s r ouriwrweati�.vraef u a, vWo+tyaYa p �I J _. G9N?lOL SA1F SY.YT A[GSIL.^'TY4 A. AM L07 SE Zp I F } c t Q`�.JNgt bf C t'IF Cl S 1 L - � Ft I 1 I Town ;clerk: - } � L Rf L r FORM A GkN1 { �p _�_ --- APPLICATION .FOR ENDORSEMENT OF PLAN '!cR BELIEVED NOT TO REQUIRE APPROVAL ��OV A 4 23 P" 19 S3 To the -;Planning board of. the Town North An doveri The uhd:ersignod „ris.hes .to record the accompanying plan and requests a „ determ?;nat9on" by said Board that approval by it under the Subdivision pntro.7'� aw;'i>5 -not-;requi.red. The undersigned believes that such approval is .not :regs�I red fo,r the f¢11.owing reasons The :division ofIand shown 6n the accompanying plan is not a sub- dlyisson because ,every lut' s.hown thereon has the amount of frontage reqd:ired 6y the °North AndoVee' Zoning By Law :and is on a public way, nanEeaY�, , or .a .private way, namely. being , l,and bounded as follows : 2 The d� .1s�on of land shaven on the accompanying plan is not a 'sub- li7vlsi;ol� for the; f6ll,0w7ng reasonsC 07'a lC-� c arm '�/ cP�c �c a Ce aP cz ado TG �w- 3 ry.t7e reference North ''Essek Deeds , B,a.ak /C> Page 2 S or Certlfjcate `of T.I;tle N.o, Registration Book ; rl Pale Applicant 's S� gnaiure; Owner' s signature and address if not t-he ap:pl � cant, - AAl i cam 's flddress ,' ��.� � t A�3 Q gg "`' v r' llf � �� ►at�r� �� �' "� _ �; � "� •� a���'�-��.��� ����w��`����r����DOVFR�P��N�j'u�T���aS, , ; ' t "' `.:� r 5. �vr-�X=��r�� -�y. �, � �;m�-,� �=��5' ° „ks.�"z"�» �.t`"t.4��, •.lY�l}� �0 a� "�+� ".f�.. f I I MASSACHUSETTS GENERAL COURT LEGISLATIVE RESEARCH AND DRAFTING MANUAL Fifth Edition 2010 Counsel to the Senate Counsel to the House of Representatives State House, Room 200 State House, Room 139 Boston, MA 02133 Boston, MA 02133 (617) 722-1470 (617) 722-2360 February 2010 Dear Legislative Drafter: The House and Senate Counsel have prepared this manual to help legislative lawyers and other staff who are drafting or reviewing bills for the Massachusetts General Court. We hope you will find it useful. Its purpose is to promote uniformity in drafting style, and to matte the resulting statutes clear, simple and easy to understand and use. This manual is not a substitute for advice and drafting assistance from the House and Senate Counsel. Rather, we hope it will encourage you to call or visit our offices for further help. We welcome any corrections,suggestions for improvement and other comments. Sincerely, Alice E. Moore David Namet Counsel to the Senate Acting Counsel to the House Table of Contents Prologue........................................................6 Part l- Legislative Research, Summary and Analysis.......6 A. Legislative Research.......................................6 ` ' D. Bill Examples...........................................l7 L Sick Leave Bank.....................................l7 2. Validating Actions u1,�unouovvu D�cdoou�...l8 ' �T ' l Br ..--...,...........l8 4. ludi/k<iuu\ Civil Service Exemptions.........l8 5. Gooerul Laws.................... ....................l9 6.Resolves- ...........................................2O 9a, ]' (Jramozndcul Issues........... .................22 A. Grammar.............................................22 LNuoohoc ............................................22 2. Gender Neutral Drafting...... ......................22 � l Capital Letters....................................23 4. Spelling of Particular Wnrdo.....------..25 5. Punctuation............................................%5 8. Sbnole Language ..................................%6 C. Use of Particular Words........................27 --�� l. "And"and °or`......................—...........27 2. "Sn]d" and "such.....................................27 3. "ShuU"and °may`..................................28 4. "Which"and "that.................. . ..............28 l Avoid "the provisionsof`...............20 0. Use of the phrase"of the General Luvv "..—.28 D. Particular Provisions.............................28 L Statutes in the (]eoe,u| Laws......................20 2. Trunokiou...........—.---.....--..,.29 3. Effect vn present relationships...----.-29 � } � 4. OuvecxhilKv................ .......... ............20 � � i / � heretofore before this........—takes effect in accordance with under in the event that if In ,the interest of for is authorized and directed shall is authorized to may is directed shall is entitled (in the sense of has the is called name) it is the duty shall it shall be lawful to may law passed enacted occasion (as a verb) cause or, in the alternative or party of the first part (the party's name) per annum per year per centum per cent prosecute its business carry on its business provision of law law pursuant to under render give said, same, such the, this, that, these, those shall be deemed to be is or shall be subsequent to after successfully completes or passes completes,or passes suffer(in the sense of permit) permit to the effect that that until such time as until with the object of changing(or other to change (comparative infinitive) gerund) j C. Use of Particular Words �j 1. "And" and "or." "And"means all of list of items. "Or" means any one or more of a list of items. Do not use"anal/or"; use "or" instead. 2. "Said" and "such." In general, avoid use of"said"and"such." ("Said"may be used to refer to a previously cited statute.) Instead, use"the" if the reference is unambiguous. Otherwise, use"this,""that," "these"or"those."