424 Mass. 370 | Mass. | 1997
By letter dated February 5, 1987, the defendant, then named “Architectural Barriers Board” (board), an agency within the Commonwealth’s Department of Public Safety, notified the plaintiff that, “[u]pon information received by the Architectural Barriers Board,” the Chatham Center building located at 29 Crafts Street, Newtonville, “appears to
Pursuant to G. L. c. 30A, § 14, the plaintiff sought Superior Court review of the board’s decision. In December, 1989, a Superior Court judge remanded the matter to the board for further hearings, following which the board again denied the variance, having concluded that the front entrance of Chatham Center was a primary entrance under the relevant regulation and that the cost for compliance was not excessive when compared to the benefits derived by handicapped persons. The plaintiff filed another complaint for judicial review under § 14, which led to a second Superior Court judge’s decision affirming the board’s decision.
In his memorandum and order the judge stated that the “[plaintiff’s contentions are two: (1) the decision of the [board] was in excess of its statutory authority; and (2) the [board’s] interpretation of 521 [Code Mass. Regs.] § 26.1 was erroneous.” The judge rejected those contentions, setting forth his reasoning, with which we agree, in a full and clear discussion. The judge also stated in his memorandum: “The plaintiff also contends that the variance he applied for was improperly denied. Presumably, he raises the issue, although
In an unpublished memorandum and order, the Appeals Court affirmed the judgment that had been entered in the Superior Court. See 37 Mass. App. Ct. 1106 (1994). We granted the plaintiffs application for further appellate review. We, too, affirm the judgment of the Superior Court.
We summarize the relevant facts. Having reviewed the architectural plans for the plaintiffs building and concluded that its design complied with the applicable regulations, the assistant building commissioner (building inspector) of the city of Newton issued a building permit on March 15, 1985, for the construction of Chatham Center, located at 29 Crafts Street in Newtonville. The front entrance of the plaintiffs building faces Crafts Street, a public way. The words, “Chatham Center,” appear in large letters above the front entryway, and the number 29 is marked to the left and right of the doorway. The front entrance of the building is inaccessible to persons in wheelchairs. An entrance at the rear of the building, where a parking lot is located, is accessible to persons in wheelchairs. A sign in front of the building says “HANDICAP ACCESS & PARKING IN REAR OF BUILDING.” The rear entrance is approximately 180 feet down a driveway from the public way.
The plaintiff first argues, as he did in the Superior Court,
In examining the extent of the board’s powers, we accord deference to the board’s own construction thereof and construe such powers so as to facilitate the agency’s function as designated by the Legislature. See Brooks v. Architectural Barriers Bd., 14 Mass. App. Ct. 584, 588 (1982); see also Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 524-526 (1979). The fourth paragraph of G. L. c. 22, § 13A, states that “[t]he board shall make and from time to time alter, amend, and repeal, in accordance with the provisions of chapter thirty A, rules and regulations designed to make public buildings accessible to, functional for, and safe for use by physically handicapped persons.” The seventh paragraph states that “[tjhere shall be no construction, reconstruction, alteration or remodeling of a public building except in conformity with said rules and regulations. . . .” Although G. L. c. 143, § 3W, charges local inspectors with the responsibility of reviewing construction plans and specifications before issuing building permits to ensure that proposed structures will conform to regulations, the board is neverthe
“The board shall receive complaints of noncompliance with this section or any rule or regulation promulgated hereunder from any person or may receive complaints initiated by its own staff. If the board finds, after notice and opportunity for a hearing, that any person is not in compliance with this section or with any rule or regulation promulgated hereunder, it may issue an order to compel such compliance.”
Section 13A, therefore, makes the board the ultimate arbiter of regulatory compliance. Although the fifth paragraph of § 13 A provides that “[t]he provisions of this section and all rules and regulations made hereunder shall be enforced by the inspector of buildings, building commissioner, local inspector and inspector,” the sixth paragraph provides that
“[t]he board shall have the power of local and state inspectors in the enforcement of its rules and regulations .... The board shall take such other actions as may be necessary and appropriate to encourage and assist all state and local building inspectors to enforce the provisions of this section, all rules and regulations made hereunder and decisions of the board, including but not limited to, providing training and technical assistance to said inspectors.”
If a. local inspector fails to enforce access regulations and erroneously issues a building permit, the board is authorized to ensure that the building is accessible to the full extent of the regulations. Indeed, the statute confers on the board the power to identify and rectify inspectors’ omissions by providing in the tenth paragraph that “[t]he board shall maintain a record of all state and local building inspectors who issued a building permit for a building later found by the board to be in violation of this section or any rule or regulation promulgated thereunder.” As the amicus brief emphasizes, this power residing in the board is consistent with the remedial purpose of the enabling legislation and regulations “to make public buildings and facilities accessible to, functional for, and safe for use by persons with disabilities.” See 521 Code Mass. Regs. § 26.1.
The plaintiff further argues that, in determining whether the Crafts Street entrance was a “primary” entrance, it is inappropriate to consider whether the entrance was visible and identifiable to members of the public and used by them. Instead, the plaintiff contends that the correct test is whether an entrance was designed to be primary, and that Chatham Center’s rear entrance leading from the parking lot to the elevators and all other spaces in the building, not the front entrance, was so designed. The plaintiff asserts that under any other analysis, every public entrance to a building would be “primary” and thus subject to 521 Code Mass. Regs. § 26.1. We disagree. Nothing in the wording or context of the access regulations supports the plaintiff’s emphasis on the architect’s or owner’s concept or design of the building as dispositive of any entryway’s primacy. Rather, as the Superior Court judge concluded in his memorandum, “the [board’s] regulations are ‘use’ rather than ‘design’ regulations, for the policy behind them demands that buildings be accessible, functional, and safe as used. Otherwise, the legislature’s objective would not be met.” In reviewing the board’s decision, we are required to “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the
Concerning the board’s decision not to grant a variance, the plaintiff offered no evidence and makes no argument on appeal to upset the board’s determination that the required modification of the front entrance would be technologically feasible and would not, at an expense the plaintiff estimated at $48,000 to $50,000, create excessive or unreasonable costs in light of the benefit inherent in eliminating an additional 180 feet of travel down the driveway for handicapped persons seeking an accessible entrance. See G. L. c. 22, § 13A, seventh par.
Judgment affirmed.
We acknowledge the amicus brief of Disability Law Center, Inc.
In connection with its final order, the board found as follows: “[T]he 29 Crafts Street entrance is a primary entrance ... to the building . . . the building identity is Chatham Center, with large numbers 29 on both sides of the doorway. Further the Board finds that persons do use the front entrance (29 Crafts Street) as evidenced by the video showing persons, arriving by foot or in some cases by vehicle, entering and leaving the building, by that entrance. The Board noted public transportation is provided on