MISC 08-377478

July 8, 2010

Sands, J.


Plaintiff filed its unverified Complaint on April 11, 2008, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant Uxbridge Zoning Board of Appeals which upheld the decision of the Uxbridge Building Inspector (the “Building Inspector”) denying Plaintiff’s application for a building permit. A case management conference was held on June 26, 2008.

Plaintiff filed its Motion for Summary Judgment on March 27, 2009, together with supporting memorandum, Statement of Undisputed Facts, and Affidavits of Donald Seaberg (engineer) and Jeffrey Roelofs, Esq. Defendant filed its Opposition and Cross Motion for Summary Judgment on May 6, 2009, together with supporting memorandum and Supplemental Statement of Undisputed Facts. A hearing was held on both motions on September 16, 2009, at which time both motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find the following material facts are not in dispute:

1. Plaintiff is the owner of property located at 165 Crownshield Avenue, Uxbridge, Massachusetts, which includes both Lot 1A and Lot 1B (“Locus”), as hereinafter defined. Both lots are located in zoning district Residence A under the 2004 Uxbridge Zoning Bylaw (the “2004 Bylaw”). [Note 1]

2. In 2004, the Uxbridge Planning Board (the “Planning Board”) approved a definitive subdivision plan (the “2004 Subdivision Plan”) concerning property located on Crownshield Avenue in Uxbridge, thereby creating eight new lots (Lots 1-8). In 2006, the Planning Board endorsed an “Approval Not Required” plan, which divided Lot 1 as shown on the 2004 Subdivision Plan into two lots, Lot 1A and Lot 1B (Locus). Both lots contain frontage along Crownshield Avenue. Subsequently, construction of a multi-unit residential building was completed on Lot 1A, including a driveway (“Driveway A”) that provides access to both the front and rear of the building. [Note 2]

3. In September 2007, Plaintiff filed a building application for an eight-unit residential building on Locus. A residential building is a use permitted as of right in the Residence A zoning district. The proposed driveway (“Driveway B”) would provide access from Crownshield Avenue and service four units before merging with Driveway A to service the four remaining units.

4. On December 6, 2007, the Building Inspector denied Plaintiff’s application for the building permit (the “Denial”) for Locus. The Denial stated that

[c]ommon or shared driveways are not permitted with in the town of Uxbridge. Lot 1-B will need its own driveway for the eight-plex. Meeting the set backs off lot 1-A and exiting on to Crownshield Avenue.

5. On January 4, 2008, Plaintiff appealed the Denial to Defendant.

6. On March 25, 2008, Defendant upheld the Denial, without stating any reasons (the “ZBA Decision”).


In arguing in support of the ZBA Decision, Defendant argues that a common driveway is not a permitted use under the 2004 Bylaw. Defendant also asserts that the 2004 Bylaw established setback requirements applicable to driveways in the Residence A zoning district, which prohibit Driveway B from crossing the lot line between Lot 1A and Locus. Plaintiff notes that Defendant provided no reasons or basis for the ZBA Decision and argues that (1) common driveways are a permitted use under the 2004 Bylaw and that (2) the 2004 Bylaw imposes no setback requirements applicable to driveways. I shall examine each of these issues in turn.

Whether Common Driveways are Permitted Uses Under the 2004 Bylaw.

While both parties agree that driveway use is not expressly addressed within the 2004 Bylaw, they disagree on whether the bylaw prohibits all uses that are not expressly allowed. This debate is quickly resolved by reference to the plain language of Section V(A) of the 2004 Bylaw, which states that “any . . . land or part thereof may be . . . used for any purpose, which does not violate any section of this bylaw or any of the provisions of the bylaws of the Town of Uxbridge.”

However, whether the 2004 Bylaw at issue is in general prohibitive or permissive is not dispositive as to whether Driveway B is valid. Section VII(A) of the 2004 Bylaw states:

In those portions of the Town so indicated on the accompanying zoning by-law map as RESIDENCE A districts, no building, structure, or premises shall be constructed, altered or used for any industry, trade, manufacturing, or commercial purpose or any purpose except one or more of the following specified uses: . . .

The next inquiry for this court is to determine whether Driveway B is a “building, structure, or premises” pursuant to the 2004 Bylaw. Section III (Definitions) of the 2004 Bylaw defines the term “building” as a “combination of materials forming a structure, with or without a roof.” The same section defines the term “structure” as “[a]nything constructed or erected, which required location on the ground, or attached to something having location on the ground.” The 2004 Bylaw fails to define the terms “premises,” “construct,” or “erect.” [Note 3] Although driveways are not generally considered structures, the definition of the term “structure” appears to be ambiguous under the 2004 Bylaw.

None of the enumerated uses itemized in Section VII(A) expressly include driveway use. [Note 4] The question remains whether Driveway B is allowed either as a use integral to the allowed residential use or as an accessory use under Section VII(A)(7) or Section VII(A)(7) of the 2004 Bylaw. A driveway is generally considered an allowed use to a residential use. Moreover, as discussed, supra, there is no prohibition against either a single driveway or a common driveway.

With respect to accessory uses, Section VII(A)(7) allows “[a]ccessory use[s] on the same premises with and customarily incident to any of the permitted uses and not detrimental to the residential neighborhood. . . .” Defendant interprets this language as prohibiting common driveways because such use is not listed as expressly allowed. [Note 5] On the contrary, Plaintiff emphasizes that driveways are an accessory use to several allowed residential uses listed in the 2004 Bylaw and argues that Driveway B is a use integral to a residential structure.

Defendant focuses on the phrase “on the same premises” and argues that the common driveway crosses the lot line and therefore is not on the same premises as Locus. Plaintiff counters that it owns both Lot 1A and Locus and that the driveway is on two lots which are both owned by the same party and serviced by the driveway. Relevant to this inquiry is the fact that Section VII(A)(7)’s allowance of accessory uses in Residence A zoning districts is not limited to uses on a single lot; rather, such uses are limited to “the same premises.” [Note 6] Section III of the 2004 Bylaw defines the term “lot” as “[a] parcel of land . . . .” The term “premises” is not defined in the 2004 Bylaw. However, Black’s Law Dictionary defines “premises” as “[a] house or building, along with its grounds.” BLACK’S LAW DICTIONARY 1199 (7th ed. 1999). This definition is echoed in the American Heritage College Dictionary, which defined “premises” as “[l]and and the buildings on it.” THE AMERICAN HERITAGE COLLEGE DICTIONARY 1099 (4th ed. 2002). [Note 7] In light of the above, this court cannot conclude that the term “premises” as used in the 2004 Bylaw is to be interpreted as a single parcel; had that been the intent of the drafters of the 2004 Bylaw, they could have used the term “lot.” As such, Defendant’s argument that Section VII(A)(7) precludes common driveways is unpersuasive.

Plaintiff also argues that a common driveway is an accessory use pursuant to Section VII(A)(11) of the 2004 Bylaw, which allows, as a permitted use, “[a]ny use accessory to [a residential use].” Such accessory use is not limited to a use “on the same premises.”

In light of the above, I find that a common driveway is a permitted use under the 2004 Bylaw.

Whether Driveways are Subject to Setback Requirements Under the 2004 Bylaw.

Defendant argues that even if a driveway use may be permitted as an accessory use to a residential structure, such use cannot cross lot lines and must stay within the required setback. [Note 8] As previously stated, the 2004 Bylaw’s definition of the term “setback line” states: “a line outside of and equidistant from the street line and establishes the nearest point to the street line at which the nearest point of a building . . . may be erected.” This definition refers only to buildings and fails to include driveways. Neither party suggests that a driveway is a building. Thus, the plain language of the 2004 Bylaw supports Plaintiff’s argument that setback requirements do not apply to an accessory driveway use that crosses the lot lines of parcels held in common ownership. This conclusion is corroborated by the fact that the 2004 Bylaw has been subsequently amended to establish driveway setbacks in certain districts. In light of the above, I find that Driveway B is not subject to setback requirements under the 2004 Bylaw.

Based on the foregoing, I find that the ZBA Decision was arbitrary, capricious and unreasonable and beyond the scope of authority of Defendant. As such, I ALLOW Plaintiff’s Motion for Summary Judgment and DENY Defendant’s Cross Motion for Summary Judgment.

Given that the sole basis of the ZBA Decision and the Denial related to whether a common driveway (Driveway B) was allowed on Locus under the 2004 Bylaw, and in light of this court’s conclusion that such driveway is not prohibited by the 2004 Bylaw, I order the Building Inspector to issue a building permit with respect to the eight-unit residential building on Locus that Plaintiff applied for in September 2007.

Judgment to issue accordingly.

Alexander H. Sands, III


Dated: July 8, 2010


[Note 1] While the 2004 Bylaw has since been amended, both parties agree that the 2004 Bylaw applies in the case at bar.

Specifically, Section III.30 of the 2004 Bylaw includes the following definition:

Setback Line: A setback line is a line outside of and equidistant from the street line and establishes the nearest point to the street line at which the nearest point of a building, including outside vestibule, porch or bulkhead but not including steps, may be erected.

[Note 2] Plaintiff’s brief indicates that the building is an apartment building. At oral argument the building was described as a condominium building. This distinction is irrelevant for summary judgment purposes, as both parties agree that the use of Locus is an as-of-right use in the Residence A zone.

[Note 3] The term “erect” means “[t]o construct.” BLACK’S LAW DICTIONARY 562 (7th ed. 1999). The term “construct” means “[t]he act of building by combining or arranging parts or elements; the thing so built.” Id. at 308.

[Note 4] It should be noted that none of the 2004 Bylaw provisions specify either a single driveway use or a common driveway use.

[Note 5] Defendant cites R H B Dev., Inc. v. McBain, 5 LCR 166 , 168 (1997) (Misc. Case No. 237281) (Green, J.) (holding that common driveways were not permitted under the Town of Duxbury’s by-law, which was found to be “prohibitive” rather than “permissive”). As discussed, supra, this is not the case with the 2004 Bylaw.

[Note 6] This inquiry might be different had the 2004 Bylaw limited accessory uses to a single lot. See, e.g., R H B Dev., Inc., 5 LCR at 168 (noting that the bylaw provision at issue regulating accessory uses “specifically requires that an accessory use be on the same lot as the primary use to which it relates.”) (emphasis added). See also Franchi v. Mulvehill, 13 LCR 491 , 492 n.8 (2005) (Misc. Case No. 281294) (Lombardi, J.) (contrasting the definition of a “lot” with a “premises,” as such terms were defined in the Town of Norwood Zoning Bylaws, and noting that the latter term consisted of “[o]ne or more contiguous lots in the same ownership or use, together with all buildings and structures thereon.”).

[Note 7] Neither definition limits the term “premises” to a single lot.

[Note 8] Plaintiff acknowledges that if crossing a lot line created an easement issue, such issue would have to be addressed. However, in the case at bar, Plaintiff owns the land comprising both Driveway A and Driveway B.