95-P-1808                                         Appeals Court


            JOSEPH M. DOUGHERTY [1] vs. BOARD OF APPEAL
                     OF BILLERICA & others. [2]

                            No. 95-P-1808.
                               
           Middlesex. June 18, 1996. - July 26, 1996.
          Present:  Dreben, Gillerman, & Laurence, JJ.

      Zoning, By-law, Variance, Nonconforming use or structure,
      Multiple dwelling. Fire.

      Civil action commenced in the Superior Court Department on
      April 5, 1993.

      The case was heard by Robert H. Bohn Jr., J.

      Joseph M. Dougherty, pro se.
      Paul C. Kilian for Anthony R. Passalaqua & another.


     DREBEN, J. In this action by abutters pursuant to G. L. c.
40A, S. 17, appealing a decision of Billerica's board of appeal, a
judge of the Superior Court interpreted a by-law of the town to
allow reconstruction of a building that had been entirely
destroyed by file. We reverse.

     After their four-family residence was destroyed by "a
devastating fire," the defendants Anthony R. and Mary Ann
Passalaqua applied to the building commissioner for permits to
begin reconstruction of the dwelling. Under the applicable zoning
by-law, four-family units are no longer permitted in the district
in which their building was located, [3] but the Passalaquas
claimed the right to reconstruct their building for the same use
under S. llC of the by-law. That section provides:

    'Any lawfully non-conforming building or structure destroyed
     or damaged by fire, flood, lightning, wind or otherwise to
     the extent of sixty-five percent (65%) or more of its
     reproduction cost at the time of such damage shall not be
     rebuilt, repaired, reconstructed nor altered except for a
     purpose permitted in the zoning district in which such
     building is located. Any building so effected [sic] to the
     extent of less than 65% of its reproduction cost can be
     reconstructed within 2 years to its size and use immediately
     prior to damage or destruction." 

The building commissioner, contrary to the contention of the
Passalaquas, considered the destruction to be in excess of sixty-
five percent, and, as the judge found, "presented the Passalaquas
with what she described at trial as a 'referral' slip and
directed them to apply to the Zoning Board of Appeal for a
variance.'" The Passalaquas followed her suggestion, and, in
support of their petition for a variance, explained that a fire
had destroyed their legal, nonconforming four-family building to
an extent exceeding 65 percent. The board granted a
variance but did not file any subsidiary findings supporting its
conclusion. On the abutters' appeal to the Superior Court, the
motion judge [4] remanded the matter to the board for further
explanation of its grant and for its opinion as to the necessity
of a variance.

     The board responded that it had granted the variance based
on estimates submitted at the public hearing that showed that it
would cost $400,000 to "reproduce" the structure and $200,000 to
"reconstruct" it. [5] Based on these figures, the board "voted to
grant the variance, whereas the reconstruction cost was less than
65% of reproduction cost. . . ."

The matter was then tried without a jury in the Superior
Court. After ruling (correctly) that the board had failed to make
the requisite findings to justify the granting of a variance, see
Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 331-332
(1993), the trial judge rejected the board's interpretation of
the by-law stating: "The Board of Appeal erroneously compares
reproduction cost with the cost of constructing an inferior,
legally non-conforming building. The cost of the latter is
irrelevant to the issue of whether a nonconforming structure may
be rebuilt after destruction by fire." The judge, however,
interpreted the by-law to reach the same result. Based on the
assessed value of the building, $130,200, he found that it had
been completely destroyed, that its total value prior to the fire
was $130,200, and that this was the monetary value of the damage
caused by the fire. Comparing that figure to the figure he found
to be the cost of reproducing the building, namely, $414,140, he
concluded that the damage to the structure, $130,200, was less
than sixty-five percent of its reproduction cost and hence that
it could be reconstructed pursuant to S. llC of the zoning by-law
without a variance . [6] Neither the language nor the purpose of
the by-law supports his interpretation. The text prohibits
reconstruction of a "building . . . destroyed . . . to the extent
of sixty-five percent (65%) or more of its reproduction cost at
the time of such damage" (emphasis supplied). We think the
meaning of this provision is that if the damage exceeds
sixty-five percent of the reproduction cost of the building as
determined immediately prior to the damage (i.e., exceeds
sixty-five percent of $414,000) the building cannot be rebuilt.
Since the entire building was destroyed, the damage obviously
exceeded sixty-five percent of its reproduction costs.

     We are supported in our construction by "the general
circumstance that zoning regulations tend to provide that an
owner of a nonconforming structure is not entitled as of right to
rebuild if the structure is destroyed to more than a particular
per cent of its value." Berliner v. Feldman, 363 Mass. 767, 773 
1973). Compare Blasco v. Board of Appeals of Winchendon, 31
Mass. App. Ct. 32, 39 (1991). See also 4 Ciegler, Rathkopf's Law
of Zoning and Planning S. 51B.03, at 51B-29 (4th ed.
1995), where the author states: 

    "In conformity with the philosophy that the spirit of zoning
     is to restrict, rather than increase, nonconforming uses and
     to eliminate such uses as speedily as possible, and in order
     to discourage the reestablishment of nonconforming uses, the
     investment value of which has been lost to the owner through
     accident and through no action on the part of the
     municipality, it is customary to provide in zoning
     ordinances a prohibition against the replacement of a
     nonconforming structure or one employed in a nonconforming
     use in excess of a specified percentage, this percentage
     being fixed as equivalent to substantial destruction." 

     In our view, S. llC of the Billerica zoning by-law is such a
customary provision and hence should be construed to prevent
rebuilding of a structure that has been entirely destroyed. See,
e.g., Halko v. Board of Appeals of Billerica, 349 Mass. 465, 469
& n.3 (1965). The judgment is reversed, and a new judgment shall
be entered annulling the decision of the board of appeal as in
excess of its authority.

So ordered.


Footnotes {1} through [6]:
 [1] Margaret B. Ingraham, an additional abutter and
     plaintiff in the Superior Court, has not joined in this
     appeal.

 [2] Anthony R. Passalaqua and Mary Ann Passalaqua.

 [3] Only single family residences are permitted.

 [4] The abutters had filed a motion for summary judgment.
     The motion judge was not the trial judge.

 [5] The structure was built as a Victorian residence in
     1862. While it had been modified for use by four families,
     it still contained many original details (e.g., marble
     fireplaces, hardwood floors, and decorative moldings), which
     would be expensive to reproduce. 

 [6] The abutters argue that the judge could not reach the
     question of the interpretation of the by-law as the
     Passalaquas had not appealed the decision of the building
     inspector, but rather had followed her advice to apply for a
     variance. We pass that question, but cf. O'Connor v. City
     Manager of Medford, 7 Mass. App. Ct. 615, 617-618 (1979).

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