Paul F. Alphen
It
appears that many of the recent Land Court and Appeals Court decisions pertain
to attempts by landowners to create building lots
out of odd parcels with
frontage along old rights of way or partially constructed ways. Perhaps the
value of real estate is up?
One
of the cases provides us with some education on how to interpret inconsistent
terms within a zoning bylaw. It is not uncommon for bylaws out here in the suburbs
to contain inconsistencies. Bylaw provisions are amended, added and subtracted
from time to time by an ever-changing cast of characters, many of whom are
volunteers. In Perry v. Zoning Bd. of Appeals of Hull, No. 20-P-334, 2021 WL 2932855 (Mass. App. Ct. July 13,
2021), the Defendant owned a
parcel of land with frontage on a right of way in scenic Hull, Massachusetts.
The bylaw defines “Lot Frontage” as “[t]hat part of a lot (a lot line) abutting
on a street or way; except that the ends of incomplete streets, or streets
without a turning circle, shall not be considered frontage....”
The
Defendant/landowner wanted to count the stub end of the dead-end right of way
toward his frontage calculation. The next-door-neighbor Plaintiff claimed that
the definition of “Lot Frontage” requires that the measurement exclude
the end of an incomplete street. The Defendant asserted that the bylaw did not
specifically express such a requirement for a “way” because the language of the
bylaw only referred to “incomplete streets” and did not refer to incomplete
ways.
The
Appeals Court agreed that the incomplete street exception did not apply to the right
of way. The Court explained their reasoning as follows: “Regardless of whether
the bylaw uses the terms interchangeably elsewhere, it was not unreasonable for
the board to conclude that in this instance, the reference to only streets was
intentional where both street and way had been used earlier in the same
sentence. ‘It is a ‘maxim of statutory construction ... that a statutory
expression of one thing is an implied exclusion of other things omitted from
the statute.’’ [citations omitted]
Although this maxim, commonly known as ‘expressio unius est exclusio alterius,’
must be applied with caution [citations omitted}, it has particular force where
the excluded phrase was used elsewhere in the same provision. [citations omitted]
(, [W]here the Legislature has employed specific language in one paragraph, but
not in another, the language should not be implied where it is not present’).” Perry
v. Zoning Bd. of Appeals of Hull,
I
probably knew this maxim law school, but that was a long time ago, and I
appreciate the refresher.
A
former REBA president, Paul Alphen currently serves on the association’s
executive committee and co-chairs the long-range planning committee. He is also a member of the Executive
Committee of the Abstract Club. He is a partner in the Westford firm of Alphen
& Santos, P.C. and concentrates in residential and commercial real estate
development, land use regulation, administrative law, real estate transactional
practice and title examination. As entertaining as he finds the practice of
law, Paul enjoys numerous hobbies, including messing around with his power
boats and fulfilling his bucket list of visiting every Major League
ballpark. Paul can be contacted at palphen@alphensantos.com.
