MISC 08-379732

April 9, 2010

ESSEX, ss.

Piper, J.


The plaintiffs in this case, Margaret C. Royer and James M. Robinson (“Plaintiffs”), filed a complaint seeking, in count one, pursuant to G. L. c. 40A, §17, judicial review of a decision (“Decision”) of the Zoning Board of Appeals (“Board”) of the Town of Middleton, whose members are defendants. (A second count of the complaint, sounding in trespass, is not the subject of the motion now before the court.)

The Board’s challenged Decision is dated March 27, 2008. The Board filed the Decision with the Town Clerk on April 30, 2008. In the Decision, the Board upheld the decision of the Middleton Building Inspector, also a defendant, to deny a request by the Plaintiffs to enforce certain provisions of the Middleton Zoning Bylaw (“Bylaw”), as in effect at the time, against defendants David T. Leary and Nancy N. Leary (“Learys”). The request to enforce invoked two specific Bylaw provisions, the meanings of which were considered by the Inspector, the Board, and now confront this court:

8.6.1. Each lot, on which there is to be a dwelling, shall be served by one driveway crossing the frontage of that lot and not across abutting parcels. Corner lots may have entrances across either frontage but not across both.

8.5.3. Common or shared driveways shall not be allowed in a residential district.

The Plaintiffs filed a motion for summary judgment with respect to count one of their complaint, claiming that the Board erred when it issued its Decision upholding the decision of the Building Inspector not to enforce these quoted provisions of the Bylaw, as Plaintiffs had demanded. Plaintiffs filed a supporting memorandum of law, affidavits, and exhibits. Count two of the Plaintiffs’ complaint, alleging trespass by the Learys over the Plaintiffs’ property, is not addressed by the motion before the court. The Learys filed an opposition to the Plaintiffs’ motion for summary judgment, along with affidavits and exhibits. The court held a hearing on the summary judgment motion, during which the court granted the parties leave to file supplemental briefs on an issue addressed during the hearing--whether the disputed way may serve as frontage for the Learys’ lot. Having received the requested supplemental briefing, the court now rules on the pending motion.

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Based on the summary judgment record submitted, the following material facts appear to be without dispute:

1. The driveway or roadway central to this dispute is shown as a “Traveled Way (Gravel)” (“Traveled Way”) on a plan titled “Plan of Land In Middleton MA Prepared For Joan G. Bishop,” (“Bishop Plan”), dated October 19,1998, recorded on November 23, 1998 with the Essex County (South District) Registry of Deeds (“Registry”) as Plan 61 in Plan Book 330.

2. Plaintiffs James Robinson and Margaret C. Royer are husband and wife and own the property located at 50 North Liberty Street, Middleton, Massachusetts (“Royer Property”).

3. The Royer Property comprises two non-contiguous parcels, which are shown as Lots 4A and 7 on Middleton Assessors Map 5. Plaintiff Margaret C. Royer, first with her former husband, and later with her current husband and co-plaintiff, has been an owner of Lot 7 since May 4, 1968.

4. Defendants David T. Leary and Nancy N. Leary own, and reside upon, the property located at 52 North Liberty Street, Middleton, Massachusetts (“Leary Property”). The lands of the parties are included in a residential district under the zoning established by the Bylaw.

5. The Leary Property is shown as Lot 6B on Middleton Assessors Map 5 and that portion of the Leary Property which, on its southerly side, abuts the Royer Property is depicted on the Bishop Plan. The parties appear to agree that the Learys bought their parcel in or around 1988, and constructed their house on the Leary Property in 1989. At all times since the Learys first constructed their dwelling, they have made use of the Traveled Way across Lot B, now owned by the Plaintiffs, and never owned in fee by the Learys. They have used and continue to use the Traveled Way to pass by vehicle to and from the house on the Leary Property. The parties appear to be in agreement that the Learys, at the time they first developed their land and built their house upon it, were subject to the provisions of Section 8.5.3 and 8.6.1 of the Bylaw, and have been governed by those provisions at least through the time of the decisions by the Building Inspector and the Board which are the subject of this litigation. The parties also concur that the initial use, by the owners of the Royer parcel, of Lot B and the Leary parcel to provide passage to and from the Royer parcel, was, at the time that use was initiated in the 1960's, not subject to the operation of these provisions of the Bylaw, which were adopted well afterwards, in or around 1988. Thus, the parties appear to accept, given the undisputed chronology, that while the Royer use of another’s land (the Leary Property) for access is grandfathered, the Learys’ use of the Royers’ land did not enjoy similar protection when the enforcement request was considered by the Inspector and the Board.

6. The Bylaw defines a “street” as:

A public way or a way which the Clerk of the Town of Middleton certifies is maintained and used as a public way, or a way shown on a plan approved and endorsed in accordance with the Subdivision Control Law . . . , or a way in existence on March 15, 1955, having, in the opinion of the Planning Board, sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby and for the installation of municipal services to serve such land and the building erected or to be erected thereon.

7. Nothing in the record indicates that the Traveled Way ever: (a) has been certified as being used as a public way, (b) was included on a plan endorsed under the Subdivision Control Law, or (c) was declared by the Planning Board to be of “sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby and for the installation of municipal services to serve such land and the building erected or to be erected thereon.”

8. Section 235-32(E)(2) of the Bylaw defines “lot frontage” as: “the portion of a lot which fronts on a street or way accepted by the Town, a street or way used as a public way, or a street or way which the Town Clerk certifies is maintained and used as a public way, or a street or way shown on a plan approved and endorsed by the Planning Board in accordance with the Subdivision Control Law. [Footnote: ‘Editor’s Note: See MGL c. 41 §§ 81K to 81 GG.’] Lot frontage shall be measured along the length of the lot line that is coterminous with the above street or way line.”

9. The Royer Lot 4A has sufficient frontage on North Liberty Street to comply with the Bylaw’s requirement. The Leary Property also has 150 feet of frontage on North Liberty Street. However, the Learys do not now gain access to their property directly from North Liberty Street, and have not constructed a driveway leading from North Liberty Street directly onto their property. The Royer Lot 7 has no frontage on North Liberty Street.

10. Before 1969, the Royer Lot 7 had its access over a driveway using and following the route of an old roadway that passed over land of Joan G. Bishop. This route came in, not from North Liberty Street in a sharp perpendicular route, but more from the south; the northernmost portion of this former route is the one shown on a plan dated October 1970 (“1970 Plan”) entitled “Plan of Land in Middleton, Mass. As Surveyed for Curtis Realty Trust,” recorded with the Registry on Dec. 7, 1971 as Plan 23 in Plan Book 121. The pre-1969 route is that shown of this plan as coming up diagonally from the south. This access to Lot 7 changed in about 1969. In that year, plaintiff Margaret C. Royer and her then husband (Joseph R.W. Royer), after obtaining permission to do so from Joan G. Bishop, constructed a new driveway connection for their Lot 7 to and from North Liberty Street over land of Joan G. Bishop in a different alignment, so that the Royers’ driveway passed from North Liberty Street to Lot 7 in a roughly perpendicular orientation, rather than passing over Ms. Bishop’s other land in a more diagonal route from the south using the old roadway. This new route, installed in 1969, also is shown on the 1970 Plan, coming in in a westerly orientation, from, and roughly perpendicular to, North Liberty Street. It is shown on the Bishop Plan, as well, in greater detail. The change in the access route to the Royer Lot 7 which took place in 1969 involved the easterlymost part of the access, that lying between the public way, North Liberty Street, and the preexisting roadway coming in diagonally from the south. Before 1969, one accessed Lot 7 by using this diagonal roadway, and then taking a ninety degree turn to the left, heading roughly west, to proceed onto Lot 7. The change made in 1969 added the connection, roughly perpendicular to North Liberty Street, and heading roughly west from it to the point where the connecting old roadway came in from the south. From that intersection, the route installed in 1969 continued, as had the former route, to head in the same fashion an additional distance westerly into Lot 7.

11. On February 1, 1999, Joan G. Bishop conveyed to the Royers Lot B, shown on a the Bishop Plan and depicted as Lot 4A on the Middleton Assessors Map 5. The Traveled Way which is in dispute in this case crosses over this lot.

12. The portion of the driveway located on what is now the Leary Property, and leading from North Liberty Street to the Royer Lot 7, from the time that plaintiff Margaret C. Royer became the owner of that lot until now, always passed in part over what is now the Leary Property, substantially in the location shown for it on the Bishop Plan.

13. The Royers access their Lot 7, where they have their dwelling, from North Liberty Street, by using the Traveled Way crossing over both their Lot 4A and a portion of the Leary Property. The Learys and the Royers both use the eastern portion of the Traveled Way; the Learys turn to the north onto their property, and the Traveled Way continues, after that turnoff, from east to west toward Lot 7, in a further stretch of the driveway leading to Lot 7. The portion of the Traveled Way that branches north onto the Leary Property is labeled “Paved Drive” on the Bishop Plan. The record contains no easement benefitting the Learys or their land which confers, as a matter of record title, the right to pass over the Royer land. Count two of the complaint has as its focus the issue of the title rights of the Learys to gain access of land owned of record by the Plaintiffs. The motion now before the court, brought with respect to count one of the complaint, deals with the zoning compliance, or not, of the Learys’ access to their land.

14. The lands of Royer and of Leary are the only lots accessed by the Traveled Way.

15. There is no driveway or curb cut of any kind that crosses the eastern lot line of the Leary Property, which runs along North Liberty Street.

16. By deed dated July 14, 1994, and recorded with the Registry at Book 12675 Page 418, David Currier for nominal consideration granted to the Learys land described on the deed as“lot 1 on a ‘Plan of land in Middleton, MA. surveyed for Wayne Cote dated June 28, 1984, John A. Goodwin, Surveyor’. . . recorded at the Essex South District Plan Book 190, Plan 17.” The deed states that “[s]aid lot 1 . . . is subject to and with the benefit of a road way as shown on said plan.” This plan is not part of the summary judgment record.

17. In April 2007, Plaintiffs caused a notice to be posted and served upon the Learys pursuant to the provisions of G.L. c. 187, §3, concerning the Learys’ use of land of the Plaintiffs, including Lot 4A.

18. By letter of their counsel dated November 19, 2007, Plaintiffs requested, among other things, that the Building Inspector enforce Sections 8.6.1 and 8.5.1 against the Learys to have them to stop using the Traveled Way as it crosses Plaintiffs’ Property as a common or shared driveway, and to stop gaining access over a route which did not cross the frontage of the Leary lot to afford direct access to it.

19. The Building Inspector determined not to enforce the Bylaw against the Learys in the manner requested by Plaintiffs. Plaintiffs appealed administratively to the Board.

20. The Board, after hearing, voted on March 27, 2008 to deny the Plaintiffs’ appeal. The unanimous vote, four to none, upheld the Building Inspector’s determination not to take any enforcement action against the Defendants. The Board’s Decision, as filed, is devoid of any reasons or explanation of the grounds on which the Board relied in rejecting the appeal by Plaintiffs. This judicial appeal followed.

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“Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Id. at 644. In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). 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, 495 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. The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1989).

The Plaintiffs argue that the Learys are violating Sections 8.6.1 and 8.5.3 of the Bylaw by using the Traveled Way to reach the Leary’s house lot, because by doing so, the Learys fail to gain access to their land directly from North Liberty Street, across the Learys’ frontage on that street, and because the way in that the Learys do use is a common driveway. Plaintiffs argue that the Building Inspector was obliged to enforce the Bylaw against the Learys, as to these violations, and that the Board erred in upholding the Inspector’s refusal to enforce the Bylaw.

The Learys reply that the Traveled Way over the Royer Property does not constitute a “driveway,” within the meaning of the Bylaw, but rather is a public or private roadway. The Learys also say that not only is the Traveled Way something other than a driveway, but the Traveled Way itself is capable of supplying the Learys with the frontage required under zoning.

The parties square off on the meaning of the word “driveway” where used in these two sections of the Bylaw. It is this court’s task to determine, as a legal matter, the meaning of this word in the Bylaw, legislation duly enacted by the Town of Middleton; the court does so using the principles of law which govern the interpretation of legislation.

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 ordinary principles of statutory construction. Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960). Decisional law guides the court in this endeavor.

“‘We interpret a statute according to the intent of the Legislature,’ Commissioner of Correction v. Superior Court Dep’t of the Trial Court for the County of Worcester, 446 Mass. 123 , 124 (2006), looking first to the statutory language because it ‘is the principal source of insight into legislative purpose.’ O’Sullivan v. Secretary of Human Servs., 402 Mass. 190 , 194 (1988), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701 , 704 (1984). We will not expand or limit the meaning of a statute unless such is required by the ‘object and plain meaning’ of the statute. Canton v. Commissioner of the Mass. Highway Dep’t, 455 Mass. 783 , 789 (2010), quoting Rambert v. Commonwealth, 389 Mass. 771 .773 (1983).” Norfolk & Dedham Mut’l Fire Ins. Co. v. Morrison, slip op. April 8, 2010, SJC-10513.

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.” Kurz, supra, 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 statute’s enactors, such as their use in other legal contexts and dictionary definitions.” Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). “When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.” Id.

In the case at bar, the Bylaw’s use of the word “driveway” calls for an interpretation which relies upon, and respects, the commonly understood, general, ordinary usage of that term. The Bylaw does not offer any elaborative definition, and does not, in any apparent way, call for a reading of the word “driveway” at odds with its generally accepted definition.

A driveway is a “private road that connects a house, garage, or other building with the street.” American Heritage College Dictionary (4th ed. 2002); see also Oxford English Dictionary, (2d ed. 1989) (“private carriageway for a motor vehicle alongside, in front of, or leading to a house, garage, or other building”). There is nothing in the record to indicate that the Traveled Way is anything other than a driveway in the ordinary sense of the word.

The Traveled Way is entered from North Liberty Street. It crosses Plaintiffs’ Lot 4A and travels northwest to cross a portion of the Leary’s Lot 6B before reaching (and continuing into the interior of) the Plaintiffs’ Lot 7. The only use made of this way is that of the Learys and the Royers and their invitees, all for the purpose of coming to and going from the parties’ two dwellings. Nothing in the record supports an inference that the Traveled Way is used by anyone other than the owners of these two homes, and their guests. Indeed, nothing in the record shows that the way in question--the short stretch which passes over the triangular parcel 4A-- was ever used to access other homes on neighboring parcels. The sole purpose of the Traveled Way in dispute in this case is to allow vehicular passage--a connection for cars and trucks--between North Liberty Street and the house and garage on each of the Leary and the Royer parcels to which the Traveled Way connects. The Traveled Way is a “driveway” in any ordinary usage of that term, and in the contemplation of the relevant Bylaw provisions.

The conclusion which follows on the undisputed facts in the summary judgment record is that the Traveled Way is a driveway, within the meaning of the Bylaw, and that its use, in the disputed stretch, is by both the owners of, and visitors to, both the Leary Property and the Royer Lot 7. This use, not contested by the defendants, violates the plain language of the Bylaw which succinctly provides that “[c]ommon or shared driveways shall not be allowed in a residential district.” The legislative directive in Middleton is that, in residential districts, a driveway simply cannot be used by multiple owners to serve multiple lots. And that is what the record shows is occurring. For this reason alone, the decisions by the Inspector and the Board, which declined to enforce this Bylaw provision, were in error.

While a reviewing court is obliged to give some deference, within a reasonable band of tolerance, to the interpretation of a local zoning law given by the local board of appeals, in this case there is no good occasion to defer to the Board. The Board did not purport in its Decision to harmonize its denial of the Plaintiffs’ administrative appeal with an established history of interpretation of the Bylaw by the Board or other Middleton officials. In fact, the Decision is notable for its lack of any statement of the Board’s reasoning. The summary judgment record before the court shows no such pattern or history of Bylaw interpretation in the Town, in any event. At argument there was a suggestion offered that, since the time these local decisions were rendered, the Bylaw had been amended, and the changed zoning law of Middleton may now offer an opportunity, perhaps by special permit, to use lawfully common or shared driveways in residential districts. Nevertheless, the parties, when questioned through their counsel on the point by the court, were disinclined to have this case return to the Board for consideration of an application for authorization to use a common or shared driveway. Counsel did not intimate that the change to the Bylaw had made use of a common or shared driveway a use allowed as of right. The court must consider the case before it in light of the record it has. “Zoning by-laws are not matters of which [the court] can take judicial notice.” Gaunt v. Board of Appeals of Methuen, 327 Mass. 380 , 381 (1951). The court also must review the Decision based on the law that governed the Board in making its Decision at the time. Regrettably, the Decision upholding the Inspector’s decision not to enforce the Bylaw was enigmatic, failing as it did to amplify to any degree the reasons on which the Board acted. But, on the question whether the use of the Traveled Way by the Learys ran counter to the Bylaw’s regulations, a question which the Board evidently decided in the Learys’ favor, the Decision was in error and must be corrected by this court.

The Learys argue – and were allowed to file supplemental briefing to support their argument – that the Traveled Way may be capable of providing frontage to their house lot, independently of the frontage certainly provided to that lot by the public street, North Liberty. By this they further suggest that the provisions of Section 8.6.1 of the Bylaw, requiring that “[e]ach lot... shall be served by one driveway crossing the frontage of that lot and not across abutting parcels...,” might not be violated by the configuration of the parties’ lands and the Traveled Way in the case now before the court.

There are several responses to this line of argument by the Learys. First, any conclusion that Section 8.6.1 might not be violated does not attenuate the conclusion that the Learys’ use of the Traveled Way as common, shared driveway independently violates the Bylaw. No matter whether or not the Traveled Way somehow supplies frontage, for zoning purposes, to the Leary Property, the use of the Traveled Way remains a prohibited use of a common driveway.

Second, the record does not sufficiently support a reasonable inference (which the court of course owes the Learys as the parties opposing summary judgment) that anything other than North Liberty Street supplies the required frontage for Lot 6B. The portion of the Traveled Way which comes across the perimeter of that lot is much too short to constitute the required length of frontage for zoning purposes. The Traveled Way unquestionably continues on to reach the Royer Lot 7, but does so by following a route that runs diagonally across Lot 6B, and not remaining, in any significant way, on a course along the property boundary of Lot 6B. And the Traveled Way makes its way from North Liberty Street to Lot 6B by passing over the interior of Lot 4A, owned by Plaintiffs. It follows that neither this stretch of the Traveled Way, which angles across Royer Property, nor the western stretch of the Traveled Way, which then angles northwesterly across the southwest corner of the Leary Property, could lawfully be treated as running along the Leary Property’s “frontage,” defined in the Bylaw as “the portion of a lot which fronts on a street or way....”

In addition, nothing in the record supports any reasonable inference that officials or boards of the Town of Middleton have given the Traveled Way any approbation or status as a street or way qualified to supply the abutting Leary Property with zoning frontage. This is so notwithstanding that the Learys were given leave to supplement the summary judgment record post-hearing on this very question. Their supplemental response added nothing showing the availability of the Traveled Way as the location of the Leary Property’s frontage, and, in fact, asked the court to consider the legal consequences of a contrary conclusion. All the Learys have been able to do on this question is offer general opposition, advancing superficial argument unsupported by evidence. This is insufficient. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (summary judgment opponent cannot create disputes of fact by conclusory assertions).

What the undisputed facts establish, as matter of law, is that, given the configuration of the Leary Property and its frontage, which for zoning purposes is only along North Liberty Street, there is no driveway serving that lot coming across the frontage of that lot. These uncontested facts spell out a violation of Section 8.6.1's requirement that [e]ach lot... shall be served by one driveway crossing the frontage of that lot....” The Board was in error in deciding not to overturn the Building Inspector’s declination to enforce the Bylaw as to this provision.


Plaintiffs are entitled to summary judgment on count one of their complaint. The judgment the court will direct the Recorder to enter in this case at its conclusion will annul the Decision of the Board.

It is

ORDERED that plaintiffs’ Motion for Summary Judgment on Count One is GRANTED. It is further

ORDERED that counsel for all parties promptly are to confer, and, within twenty-one (21) days of the date of this Order, are to submit to this court a joint written statement setting forth in detail their clients’ collective or respective views regarding the readiness of this case to proceed to final judgment, and, if further proceedings are required to do so, the nature of those proceedings, and the steps the parties and the court ought to take to reach final judgment. Upon receipt and review of the report, the court will enter either enter judgment or further orders, and may schedule this case for either a status and scheduling conference, or a pre-trial conference, as indicated.

So Ordered.

By the Court. (Piper, J.)