Opinion
15-P-534
03-28-2016
ERRIN SIAGEL & another v. BACK BAY ARCHITECTURAL COMMISSION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a Superior Court judgment affirming the decision of the Back Bay Architectural Commission (commission) on the plaintiffs' application for a certificate of appropriateness to rebuild a roof deck. The plaintiffs argue that the judge, acting on cross motions for summary judgment, erred in entering judgment for the commission because the commission's denial of their application was legally insufficient. In the alternative, they contend that a disputed issue of fact concerning the visibility of the roof deck from the street precluded the entry of summary judgment. Finally, the plaintiffs argue that costs were erroneously awarded to the commission. We vacate the award of costs but otherwise affirm the judgment.
Background. The following facts, viewed in the light most favorable to the plaintiffs, are drawn from the summary judgment record. The plaintiffs own condominium units in a building on Beacon Street in the Back Bay section of Boston. The building, built in 1862 in the French Academic style, is within the Back Bay Architectural District and regulated by the commission. In 2013, the plaintiffs determined that building's roof membrane needed to be replaced, a project that required dismantling and replacing the existing roof deck. The plaintiffs applied for a certificate of appropriateness to rebuild the roof deck with the same footprint and dimensions as the existing roof deck.
Because the judge allowed the commission's motion for summary judgment, we view the record in the light most favorable to the plaintiffs, the nonmoving party. See DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013); Coviello v. Richardson, 76 Mass. App. Ct. 603, 607 (2010).
Although the previous owners had received a certificate of appropriateness for the roof deck in 1991, the rear edge of the deck as it was actually built extended beyond the building's rear chimneys, exceeding both the approved plans and the commission's size guidelines. The plaintiffs' 2013 application included photographs purporting to show that despite exceeding the size guidelines, the existing roof deck is not visible from any public way. In addition, the plaintiffs included photographs showing that the rear edges of the adjacent buildings' roof decks extend even beyond the rear edge of their deck.
After a public hearing, the commission partially denied the application:
"Noting both that district guidelines in place since 1990 state that roof decks are to be set within the inner edges of a building's chimneys, and that the existing deck did not reflect the approved footprint, the commission voted to approve the replacement of the deck so as not to project beyond the inner edges of the rearward party-wall chimneys. (The forward edge of the deck shall remain aligned with the inner edges of the front chimney, as existing.)"With respect to the neighboring properties, the commission stated, "[T]o the extent that adjacent decks may be out of compliance, these conditions will be addressed over time as replacements are proposed at those properties. In this fashion, compliance may be achieved incrementally within the context."
Standard of review. Appeals from decisions of the commission are governed by § 10 of its enabling act, St. 1966, c. 625 (§ 10), which has been interpreted as mandating a two-fold inquiry. "Logically, the first inquiry should be whether the reasons given on the face of the decision are 'insufficient in law to warrant [the commission's] determination.'" Marr v. Back Bay Architectural Commn., 23 Mass. App. Ct. 679, 683 (1987), quoting from § 10. "If the commission's decision appears to be based on a legally tenable ground, the court must then consider whether the reasons given are 'warranted by the evidence' within the meaning of § 10." Id. at 684.
The plaintiffs carry the burdens of proof and persuasion to demonstrate that the commission's decision should be annulled. Id. at 681-682. However, in the summary judgment context, the commission as the moving party has "the burden of demonstrating affirmatively the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial." Arcidi v. National Assn. of Govt. Employees, Inc., 447 Mass. 616, 619 (2006). We review de novo the judge's rulings on the parties' cross motions for summary judgment. Miller v. Cotter, 448 Mass. 671, 676 (2007).
Legal sufficiency. The dispute in this case centers around the commission's guideline for roof decks, which states, in pertinent part: "Visibility of decks from any public way shall be minimal. Roof decks should be set back (-) the inward edge of the chimneys and kept as close to the roof as possible." The guidelines define "shall" as denoting "action which is specifically required to preserve and protect significant architectural features," and "should" as denoting "a recommended course of action."
The plaintiffs contend that the commission misapplied its own guidelines, and "erroneously inject[ed] criteria not found in the enabling act" or guidelines, citing Warner v. Lexington Historic Dists. Commn., 64 Mass. App. Ct. 78, 83 (2005), by treating the chimney set-back provision as mandatory rather than recommended. We disagree. The commission wrote in its decision that roof decks "are to be" within the inner edges of the chimneys. However, in explaining why it rejected the plaintiffs' request for exemption from the set-back provision, the commission noted "the absence of any condition (such as one or more anomalously located chimneys) that might warrant any deviation from long-established policy and practice." By recognizing the possibility of "deviation" from the set-back provision, the commission demonstrated that it properly construed the provision as "recommended," and subject to relaxation under certain conditions, rather than as being "specially required."
The plaintiffs further argue that the commission's decision is facially insufficient because it fails to demonstrate how a roof deck that merely violates the set-back provision, but is not visible from the street, offends the commission's enabling act and guidelines. They contend that "visibility is essential to the appropriateness determination."
The plaintiffs read the act and the guidelines too narrowly. As an initial matter, the roof deck guideline includes one provision regarding visibility ("[v]isibility of decks from any public way shall be minimal") and a second provision regarding the set-back ("[r]oof decks should be set back [-] the inward edge of the chimneys"). The plaintiffs' position reads the second provision out of the guidelines.
Moreover, while the appearance of buildings from the street is certainly a central concern, the act directs the commission to consider "any aesthetic or other factor which it deems to be pertinent." St. 1966, c. 625, § 8, as amended by St. 1981, c. 624, § 4 (§ 8). To that end, the commission's general guidelines state, "Alterations which are not visible from the street also fall within the commission's Jurisdiction." With respect to rooftop additions, the guidelines require the commission to consider "visibility from any pubic way along direct and oblique sight lines, as well as scale, proportions, materials, and design. Original roof configurations and the dominance of historic cornice lines shall be maintained on both the front and rear elevations."
In granting the certificate of appropriateness on the condition that the roof deck comply with the set-back provision, "the commission cited the clarity of the general guideline, the history of its strict interpretation at this building, and the absence of any condition . . . that might warrant any deviation from long-established policy and practice." "Historic district commission decisions affirmed by this court have clearly explained the project's impact on enumerated statutory factors such as historic character or neighborhood context." Warner, 64 Mass. App. Ct. at 84. Though brief, the commission's rationale for its decision was sufficient to support its decision. The act and the guidelines give the commission the discretion to insist on certain architectural characteristics, and "the court must take care not to substitute its judgment for that of the commission." Marr, 23 Mass. App. Ct. at 684.
We reject the plaintiffs' additional argument that because a roof deck is a "structure[] of little architectural value," the commission deviated from the stated intent of § 8 "that the commission shall be lenient in its judgment of plans for structures of little architectural value." In this context, the word "structures" refers to entire buildings, not the component parts thereof. Additions to the plaintiffs' French Academic style building in the Back Bay's residential section do not qualify for lenient treatment under § 8.
Evidentiary sufficiency. Having determined that the commission's decision is based on a legally tenable ground, we must next consider whether its decision is "warranted by the evidence." "If the evidence before the court is sufficient to sustain the decision, the court can annul it only if persuaded by a fair preponderance of the evidence that the action of the commission was unreasonable, whimsical, capricious or arbitrary." Ibid.
In appeals of the commission's decisions, § 10 requires the reviewing court to "hear all pertinent evidence," and we have stated that "[t]he court is obliged to take evidence and make findings of fact on this branch of the inquiry." Marr, 23 Mass. App. Ct. at 684. Here, however, both parties filed motions for summary judgment, and neither requested that the judge conduct an evidentiary hearing. To the extent the plaintiffs now contend that the judge erred by failing to make independent factual findings, the claim is waived.
The plaintiffs correctly assert that the factual issue of the roof deck's visibility from public ways is in dispute. However, "that some facts are in dispute will not necessarily defeat a motion for summary judgment. The point is that the disputed issue of fact must be material." Hudson v. Commissioner of Correction, 431 Mass. 1, 5 (2000), quoting from Beatty v. NP Corp., 31 Mass. App. Ct. 606, 607 (1991). "A fact is 'material' only if it might provide a basis for a fact finder to find in favor of the [nonmoving] party." Liss v. Studeny, 450 Mass. 473, 482 (2008), quoting from Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006).
The commission made its determination "based on documentation presented at the hearing." The Superior Court judge had before her the same evidence on which the commission relied. The specifications of the roof deck were undisputed, and its partial noncompliance was evident. The issue of visibility from the street was not material to the commission's determination nor to the judge's decision on the cross motions for summary judgment. Because the commission's decision was not insufficient in law and was warranted by the evidence, the judge did not err in denying the plaintiffs' motion for summary judgment and allowing the commission's cross motion.
Costs. Although the commission did not make a request for costs, and the judge's memorandum of decision on the cross motions for summary judgment was silent regarding the issue, the judgment nonetheless included an award of costs. Under § 10, "[c]osts shall not be allowed against the party appealing from such determination or approval of the commission unless it shall appear to the court that said party acted in bad faith or with malice in making the appeal to the court." The judge made no such finding, and the commission commendably concedes that the award of costs was mistakenly entered. Accordingly, that portion of the judgment must be vacated.
The portion of the judgment awarding costs to the defendant is vacated; the judgment is otherwise affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2016.