MISC 379035

January 12, 2009

DUKES, ss.

Piper, J.


This action commenced in this court April 29, 2008. Plaintiffs Seaport Development, LLC, and Kevin P. Kerr, as trustee of 44 North Water Street Realty Trust, (“plaintiffs”) filed a complaint pursuant to M. G. L. c. 40A § 17, appealing from a decision of the Zoning Board of Appeal (“Board”) of the Town of Edgartown, whose members are defendants, upholding the defendant Building Inspector’s refusal to issue a building permit for construction of a five dwelling unit residential condominium project on real property in Edgartown, County of Dukes County, Massachusetts. The decision of the Board complained of in this action was filed with the Clerk of the Town on April 11, 2008.

In their complaint, plaintiffs asked the court to enter judgment that the decision of the Building Inspector was arbitrary and capricious and exceeded his authority; that the decision of the Board upholding the Inspector’s determination also was arbitrary and capricious, and in excess of the Board’s authority; ordering the Building Inspector to issue a building permit for the proposed development; annulling the decision of the Board; and awarding plaintiffs costs against the Board. Plaintiffs argue that the proposed development should have received a building permit because the use proposed is allowed as of right under section 9.1 b. of the Edgartown Zoning By-Laws.

The plaintiffs moved for summary judgment on June 23, 2008, and filed a supporting memorandum of law along with a statement of material facts. The defendants on August 4, 2008 filed their opposition to the plaintiffs’ motion for summary judgment, a cross motion for summary judgment, and a supporting memorandum of law. The defendants also filed a response to the plaintiffs’ statement of material facts.

The court (Piper, J.) heard argument on the motions for summary judgment, took them under advisement, and now decides the case.

The material facts are not in dispute. The following facts are of particular relevance to the resolution of the pending summary judgment motions, and I find them to be properly before the court for its consideration based on materials submitted pursuant to Mass. R. Civ. P. 56(c). These facts are undisputed:

1. This action concerns a portion of the real estate known as and numbered 44 North Water Street and 30 Simpson’s Lane, which is located in downtown Edgartown, Martha’s Vineyard, County of Dukes County, Massachusetts (“Plaintiffs’ Land”).

2. Plaintiffs’ Land was divided by Seaport Development for marketing purposes into seven lots numbered from 1-7 as shown on a “Form A Plan of Land Located at 30 Simpson’s Lane and 44 North Water Street Edgartown, MA” prepared by Boston Survey, Inc., Unit C-4 Shipways Place, Charlestown, MA 02129 dated February 2, 2007 ( “Form A Plan”). The Form A Plan was endorsed “approval not required” by the Edgartown Planning Board and subsequently recorded in Dukes County Registry of Deeds in Plan Book 15, Page 167. The Form A Plan also was reviewed by the Martha’s Vineyard Commission which on June 21, 2007 voted to approve the Form A Plan with conditions.

3. In early March, 2008, Seaport Development submitted to the Building Inspector a building permit application, full size site plans, elevations, detail sheets and floor plans, zoning analysis memos and other documents for the construction and renovation of five two-bedroom residential condominium units in five principal structures (“Condominium Proposal”) on combined lot 1 and lot 2 as shown on the Form A Plan. Before filing the application for a building permit, Seaport Development had in early 2008 first obtained Historic District Commission approval for the same Condominium Proposal after a public hearing and about five public meetings, during which no opposition to the proposal was voiced by any abutters or by the general public.

4. Plaintiffs’ Land, including lot 1 and lot 2 as shown on Form A Plan, is located in a B-1 (Business District) zoning district in the Town of Edgartown.

5. On March 17, 2008, the Building Inspector denied the plaintiffs a building permit.

6. On March 18, 2008, an appeal of this decision was filed with the Board.

7. In a written decision dated April 11, 2008, the Board upheld the decision of the Building Inspector denying the building permit.

8. Article IX of the By-Laws contains the provisions of the By-Laws applicable to this case with respect to the zoning use requirements applicable in a B-1 Business District in the Town of Edgartown. In particular, sections 9.1 - 9.3 of the By-Laws govern what uses are permitted as of right, conditionally permitted, and prohibited in a B-1 Business District.


“Summary judgment is granted where there no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng. Bros., 436 Mass. At 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

Decision of the plaintiffs’ summary judgment request is governed by the provisions of Article IX of the Town of Edgartown Zoning By-Laws (“bylaws”). The preamble to Article IX states, “[t]he B-1 District is intended to provide a compact pedestrian-oriented environment for a mixture of residential and business uses servicing Edgartown’s year-round population and visitors. In the B-1 Business District no development shall be allowed except as follows. . . .”

Section 9.1 of the bylaws lists the permitted uses in a B-1 Business District:

a. Principal and accessory uses permitted in the R-5 Residential District, except those uses which require a special permit under section 9.2.

b. Any other principal or accessory use not included under 9.2 or 9.3 below.

Section 9.2 lists conditionally permitted uses, allowed by a special permit obtained from the Board of Appeals: a. Business use of more than 1,500 square feet floor area not in such use January 1, 1984, whether through new construction, addition, or conversion to business from residential use.

b. Inn or hotel.

c. Restaurant including fast-food restaurant only if pedestrian-oriented, evidenced by location of premises having no more than six off-street parking spaces and having no drive-through facilities.

d. Additions or alterations of more than 150 square feet to structures existing as of January 1, 1984 or replacements thereto if the ratio of total floor area of the structure with such additions or alterations to total area of the lot exceeds 1.0.

e. Uses requiring special permits under other sections of the Zoning By-law (wind energy conversion systems {4.2.g}, accessory scientific use {11.11}, outdoor dining {11.12}, and coastal district uses {14.1}).

Section 9.3 lists prohibited uses:

a. Other fast-food restaurants (see definitions).

b. Drive-in or drive-through facilities for restaurants, banks, or other uses.

c. Automobile gas or service facilities.

This case is ripe for summary judgment because the resolution of the parties’ dispute requires only an interpretation of these bylaws, a task left to the court to decide on the text of the bylaws and governing law.

In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law, and is to be determined by the ordinary principles of statutory construction. Turner v. Zoning Bd. of Appeals of Raynham, 61 Mass. App. Ct. 1121 (Table) (2004), citing Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960). Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning “without regard to . . . (the court’s) own conceptions of expediency.” Id. at 112, quoting from Commonwealth v. S.S. Kresge Co., 267 Mass. 145 , 148 (1929). “We derive the words’ usual and accepted meanings from sources presumably known to the (bylaw’s) enactors, such as their use in other legal contexts and dictionary definitions.” Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).

Article IX of the bylaws addresses residential development in areas zoned for primarily nonresidential purposes. Section 9.1 a. of the bylaws regulates residential uses with a business district, allowing some by permitting “[p]rincipal and accessory uses permitted in the R-5 Residential District, except those uses which require a special permit under section 9.2.” According to Article VI of the bylaws, in the R-5 Residential District, “no building or premises shall be used, and no building or part of a building shall be erected or altered, which is arranged, intended, or designed to be used in whole or in part for any uses except the following. . . .” Section 6.1 a. in turn allows for any use permitted in the R-60 district, except that the lot on which a guest house is constructed must have a minimum area of 15,000 square feet. Section 6.1 b. allows two family dwellings on a lot, with the usual and necessary outbuildings incidental thereto, provided that the lot has an area of at least 15,000 square feet. Lots 1 and 2 of the Condominium Proposal do not meet these minimum lot size requirements.

Reviewing courts distinguish between zoning by-laws which are permissive in spirit and those which are prohibitive. See APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000). A prohibitive bylaw permits only those uses specifically enumerated. The introductory language of both Articles VI and IX indicate that the bylaws are prohibitive. Therefore, plaintiffs are permitted as of right only those uses specifically enumerated by the applicable provisions of the bylaws. By their own admission, their proposed development “is not one of the permitted uses, including without limitation a single family detached dwelling, two family dwelling, religious and educational uses, public parks, playground, fraternal buildings, municipal uses, and not for profit recreational buildings, in an R-5 Residential District.” Plaintiffs also concede that the Condominium Proposal is not one of the uses requiring special permits under section 9.2. By process of elimination, then, to be a valid use allowed of right to the plaintiffs under Article IX, the Condominium Proposal must fall within the language of section 9.1 b., permitting “[a]ny other principal or accessory use not included under 9.2 or 9.3... .” Because their Condominium Proposal envisions a use which is “not included under 9.2 or 9.3,” plaintiffs argue that their planned use is an allowed one under Section 9.1, and that the Inspector and the Board were wrong in reading this section in a way that came to the contrary conclusion.

The question becomes whether uses prohibited in the R-5 zoning district also are prohibited in the B-1 zoning district. The plaintiffs argue that the plain meaning of the language in section 9.1 a. does not permit an inference that any uses prohibited in an R-5 zoning district also are prohibited in a B-1 zoning district. By this argument, the catch-all language of 9.1 b. would permit uses that are not permitted in the R-5 zoning district. Such an interpretation of section 9.1 b., however, is not correct, because to read 9.1 b. in this way would render section 9.1 a. superfluous.

It is a “well established rule of statutory construction” that “none of the words [of the statute or by-law] should be regarded as superfluous.” Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 , 154 (1981). If a broad reading of section 9.1 b. were taken, then section 9.1 a. would have no meaning. If this were the case, the Condominium Proposal would be allowed under section 11.2 of the bylaws. This section prohibits multiple principal buildings or structures in R-5, R-20, or R-30 zoning districts. It does not prohibit them in B-1 zoning districts. A logical reading of the combined relevant provisions of the bylaws is that multiple principal buildings are not allowed in a B-1 zoning district, because the permitted uses section 9.1 a. specifically allows only principal and accessory uses permitted in the R-5 residential district. To say that multiple principal buildings would be allowed under the “any other principal or accessory use not included under 9.2 or 9.3 below” phrase of 9.1 b. would strip section 9.1 a. of any meaning. This court chooses not to give such a strained reading to section 9.1. The court also chooses not to give such a reading to section 11.2. There was no need to include the B-1 zoning district in the section 11.2 restrictions, because B-1 zones were already included by the terms of section 9.1 a.

To read section 9.1 plaintiffs’ way would be to read the enactment in a manner so broad as to frustrate the very obvious careful regulation intended by the Town Meeting in passing this provision. Plaintiffs’ approach to the disputed section of the bylaws proves far too much. Plaintiffs contend that the language of 9.1 b sweeps into the permitted of right category all uses, beyond those addressed in 9.1 a, that are not included in sections 9.2 or 9.3. Such an interpretation of the section leads to outlandish results, including the conclusion that any use which is so completely offensive and unpleasant that it is prohibited by the Town in all districts, would nevertheless find a home–as of right, not even by special permit–in the B-1 District, simply because it would be an “other principal or accessory use not included under 9.2 or 9.3... .” Because I conclude, in light of the overall structure and integration of the use provisions of the bylaws for all of Edgartown’s zoning districts, that the Town Meeting could not have intended such an anomalous result when it enacted section 9.1, I reject this reading of it.

Plaintiffs also argue that the Board’s decision was arbitrary and capricious. They point to a recent decision by the Board granting a special permit approving a mixed use multiple principal structure project in a B-1 zoning district near to the locus, at 15 North Summer Street. This decision is not relevant to the plaintiffs’ argument. The 15 North Summer Street project developers sought and received a special permit. The condominium project before this court sought and was refused a building permit as of right, the plaintiffs insisting that no special permit or other discretionary board approval was required. The validity of the special permit granted to the 15 North Summer Street development is irrelevant in the case now before me; comparison of that project to the plaintiffs’ Condominium Proposal is inappropriate where one project sought and secured a special permit, and the other seeks to proceed with no more than a building permit.

For the reasons given in this decision, plaintiffs have not demonstrated that the provisions of the Zoning Bylaw of the Town of Edgartown, in particular its Section IX, entitle the plaintiffs, as a matter of law, to a judgment declaring that the Board erred in upholding the Building Inspector’s denial of a building permit. Defendants have shown that, as matter of law, the Board’s decision was legally correct and within the Board’s authority. The plaintiffs’ motion for summary judgment is DENIED. The defendants’ motion for summary judgment is GRANTED.

Judgment accordingly.

Gordon H. Piper


Dated: January 12, 2009.