ELEANOR D. PEARLSON and JULIA G. STURGES vs. TOWN OF CHILMARK.

This is a complaint brought pursuant to G.L. c.240, §14A and c. 185, §1 (j 1\2) in which the plaintiffs seek a determination by the Court as to the effect upon certain land owned by them in Chilmark on the island of Martha's Vineyard in the County of Dukes of an amendment to the zoning by-law. As provided in Chapter 240 the Court has jurisdiction to determine the validity of the by-law as well as the extent to which it affects the proposed use, enjoyment, improvement or development by the plaintiffs of their land, in this case registered land more specifically described in a Certificate of Title issued by the Dukes County Registry District of the Land Court to the plaintiffs and numbered 3096. The plaintiffs rely on three grounds on which they attack the validity of the by-law, i.e.: 1) that it was invalid in its enactment because the land as shown on a map delivered to the members of the town meeting subsequently was changed by town officials without being again presented to the members of the meeting; 2) unconstitutional vagueness in its wording as to access from Tea Lane, the determinative aspect of the application of the amendment to the zoning by-law and a lack of guidance in the by-law as to how such determination is to be made, at what point it is made and by whom; and 3) the area, five acres, required by the amendment as the minimum lot size for construction of a single family residence in the overay district and the elimination therefrom, as an appurtenant outbuilding, of guest houses. An inquiry by the Court at trial has led to the conclusion that "guest house" as used in the context of the by-law does not mean a guest house with rooms for hire in the sense of a small inn or tourist home although in fact the owner from time to time may rent the structure in question but rather is intended to include a second residence on the property used by social or familial guests of the owner including, on occasion, paying guests. The town contends that the by-law was enacted in the interest of traffic safety on Tea Lane and that in addition the presence of rare varieties of plants on a portion of the land in the overlay district and the possibilities of nitrogen pollution in the ponds of the Towns of Chilmark and West Tisbury justified the enactment of the five acre minimum lot size. Furthermore the Town contends that the unusual nature of the overlay district falls within the state statutory zoning scheme.

A trial was held at the Land Court on November 1 and 2, 1989 at which a stenographer was appointed to record and transcribe the testimony. At the trial the plaintiffs relied solely on the testimony of Russell R. Walton, a member of the Planning Board of the Town of Chilmark at the time of the adoption of the by-law in question, and the Town called as its witnesses not only Mr. Walton but Christopher W. Murphy, a present member of the Planning Board and Chairman of the Board at the time in question. Bruce A. Sorie, an employee of the Commonwealth of Massachusetts Division of Fisheries and Wildlife who works for the Natural Heritage and Endangered Species Program and Craig E. Saunders who presently operates a company called Saunders Associates in West Tisbury which specializes in water quality issues, hazardous waste and other environmental issues. The parties entered into a stipulation as to the agreed facts and exhibits; there was added to the exhibits at the trial a large plan prepared on behalf of the plaintiffs (Exhibit No.38) consisting of the Town of Chilmark Assessor's Map, Sheets No. 12 and 13 on which the plaintiffs delineated the boundaries of the Tea Lane overlay district as presentd to the town meeting, the approximate location of Tea Lane and the area subsequently omitted by town officials, being seven parcels together with a parcel noted both at the town meeting and on the map sent to the Attorney General with double asterisks and the legend that "if access from Middle Road, this lot would be exempted from District One overlay" (Exhibit No. 13). The Agreed Statement of Facts also included an agreement as to the admissibility of thirty-seven exhibits more specifically described therein.

The parties stipulated to the following and based thereon I find and rule as follows:

1. In February 1988 the Town posted and published a notice that the Planning Board would hold a public hearing on the following proposed amendment to the zoning by-law of the Town (the "By-law"):

Each dwelling or structure hereafter erected or placed upon any lot accessed from Tea Lane shall have a minimum area of land of five (5) acres dedicated thereto and shall be allowed no guest house.

2. Tea Lane is a public way in the Town.

3. . . .

4. Prior to the public hearing of the Planning Board, certain officials of the Town prepared a compilation map consisting of six Assessors maps showing the proposed "Tea Lane District". . . . A broken green line designated the district boundary on the map. The map with such markings is herein referred to as the "Original Map'.

5. A revised version of the proposed zoning amendment appeared as Article 35 on the Warrant for the Town Meeting to be held on April 25, 1988 (the "Town Meeting"). The written report of the Planning Board recommended passage of Article 35.

6. The town residents voted at the Town Meeting to adopt the zoning amendment contained in Article 35, without amendment.

7. The Original Map, and a reduced version showing the same boundaries, were the only maps prepared by the Town and made available to the public showing the Tea Lane District until after the time of the Town Meeting.

8. After the Town Meeting had taken place, town officials modified the Original Map by removing seven parcels from the District.

9. Two maps showing the deletion of seven parcels from the District as delineated on the Original Map were submitted to the Attorney General for approval. One map was the "Zoning Map, Town of Chilmark" showing all zoning districts with the Tea Lane District shaded in yellow and outlined in green. The other map was a detail of the District delineating the same boundaries with the same coloration.

10. On July 29, 1989 the Attorney General approved Article 35 and the zoning map delineating the Tea Lane District.

11. Eleanor D. Pearlson and Julia G. Sturges are the owners of the land in the Town described in Certificate of Title No. 3096 (Dukes County) and shown on Land Court Plan Nos. 13319A and 13319B (two sheets).

12. As of April 4, 1988, there were forty-five (45) existing houses within the Tea Lane District (as defined by the Town).

13. As of July 26, 1989, the files of the Town Building Inspector indicate that since January 1, 1980, fourteen (14) building permits for single family residences and one (1) permit for a guest house have been issued for properties within the Tea Lane District (as defined by the Town).

14. As of January 6, 1989, the files of the Town Police Department indicate that there were eleven traffic accidents on Tea Lane during the period 1976-1988.

The Statement of Agreed facts referred in paragraph 3 to the legal notices which were posted and published in the Vineyard Gazette. The legal notice in effect set forth the language which subsequently was adopted as to the overlay district and notified all interested parties that there was to be a public hearing on March 16, 1988 at 8:00 P.M. at the Chilmark Community Center on the proposed amendment.

In addition to the facts set forth in the stipulation to which the parties agreed I find and rule on all the evidence as.follows:

1. Tea Lane is an unpaved public way which runs between North Road and Middle Road in Chilmark. The layout varies widely in width and its travelled portion is approximately twelve (12) feet. It has steep embankments along its sides in certain areas and in others brush has rapidly grown and needs to be cut back and more appropriately maintained by the public authorities. In some places only one car can pass at a time and when two cars meet or when emergency vehicles are attempting to traverse Tea Lane, it is difficult to maneuver. There was no testimony at the trial as to whether the selectmen or the licensing board of Chilmark had ever been petitioned to make Tea Lane one way, or portions thereof one way, perhaps in different directions, a possible prelimiriary step to secure improvement in the traffic situation prior to the adoption of a drastic remedy such as the creation of the present overlay district.

2. The report by Abend Associates (Exhibit No. 24) commissioned by the Planning Board concluded that the present traffic on Tea Lane was well below its capacity, that an increase under the then existing zoning requirement could be absorbed since the present volume of construction was so low. Abend also concluded that the safety aspects of an increase in volume was not necessarily negative since driver awareness presumably would lead to more caution. The report suggests that the road is safest when it is saturated with traffic, but this image is not the ideal that Martha's Vineyard residents wish to project - or endure. The conclusion of Abend Associates was "[i]t is likely that traffic related to additional homes, (constructed over the next twenty or so years) will not overly tax the roadway. The safety hazards that exist now are dangerous for existing volumes and do not bcome less safe with increased traffic, although the chances of collision are higher: Increased volumes would not create more of a hazard than presently exists." The report also set forth several suggestions to minimize the chances of collision and to improve the nature of the road.

3. The Planning Board took issue with the Abend conclusions in a letter from one of its members on behalf of the Board to Mr. Abend dated May 25, 1988 (Exhibit No. 25).

4. The Planning Board also commissioned an engineering report on Tea Lane (Exhibit No. 27) which was prepared by Thomas E. Wallace and Company, Incorporated to determine "how serviceability and safety could be improved while still maintaining the lane's country charm". As the report states, it identifies the problems, makes suggestions for remedies and includes a cost estimate. The description of Tea Lane as set forth in the report is that it is a single lane, 8,717 foot long dirt road with an average travelled way width of twelve (12) feet which varies so far as the right of way width is concerned from 26 to 68 feet, from scaling only, not from survey data. The road consists of several sections in which the conditions differ, some of which are marred by rock outcroppings or stream crossings, but all of which appear to have no drainage ditches which causes problems with the surface of the road. There also are problems with the site distance and with the width. In certain sections the road is hilly which causes additional problems. The Wallace Report contains extensive recommendations for improvements to Tea Lane without destroying its historic or scenic character.

5. The obtaining of the Abend and Wallace Reports followed a moratorium on subdivision of lands accessed by Tea Lane adopted by the Planning Board at its meeting of June 8, 1987. There seems to be no authority in G.L. c. 41, §81L et seq. for the moratorium; indeed it conflicts directly with the statutory time standards, but it apparently was not contested and is not now an issue. In the spring of 1988 the Chilmark Planning Board submitted to the Martha's Vineyard Commission in connection with a subdivision proposed by a third party (Exhibit No. 37) the following figures:

Existing Houses 45

Existing lots Without Further Subdivision 90

Potentional Lots With Further Subdivision 240

Potential Houses Including Guest Houses 396

The number of potential lots in the buildout is a mathematical computation only without relationship either to the history of construction in the area or the land in any development necessarily devoted to roads and other amenities.

6. The land of the plaintiff is registered; the land between it and Tea Lane is not. In the registration proceedings the only appurtenant right that was registered is the right to use the way leading from the registered land north to North Road. It may be that there are unregistered rights to proceed along Old Farm Road to Tea Lane, but there is nothing before the Court to establish that. In a proceeding that centered primarily on the question of access it might well appear that the land of the plaintiffs and others are without the Tea Lane overlay district, but I do not now reach that question.

7. A very rare form of orchid has been found within the new district or adjacent thereto in West Tisbury, the exact location of its siting being not entirely clear. Without doubt it was very near the town line between the two communities, and at least one plant appears to have taken root in Chilmark.

8. Nitrogen loading from fertilization of lawns and septic systems eventually can increase cultural europhications of bodies of water. There has been a study of 12,000 acres in Martha's Vineyard of which only a small portion was situated in Chilmark. There are, however, streams in the new district which eventually feed Tisbury Great Pond.

9. There was no evidence as to the effect of three acre as against five acre minimum lot zoning on the preservation of fauna, flora or bodies of water.

10. The minimum lot size called for by the zoning by-law in that portion of West Tisbury adjoining Chilmark is three acres.

The adoption of the Tea Lane overlay district is vulnerable to the requirements of Massachusetts law in several respects. The description of the district as it was adopted by the town meeting relates to a minimum lot area of five acres for any lot accessed from Tea Lane. If the Court puts to one side the question of the grammatical use of the word "access" as a verb rather than a noun, the Court as well as the Chilmark property owner is left with a conundrum. What does this phrase "accessed from Tea Lane" mean? Tea Lane is a widely used public way in the Town of Chilmark. It is impossible facially to determine from the phrase whether it means direct access, i.e., only from the land in individual ownership at the time of the adoption of the by-law which abutted on Tea Lane, or does it mean any land within the overlay district which may at some time in the future be reached by passing over Tea Lane to a series of intervening ways and then to such locus? It is clear from the exhibits relating to the registered land included within the district that much of the land within the overlay district may have no right to reach Tea Lane. This then affects the question of the validity of the boundary lines established by the town meeting, but first what were the boundary lines? The article in the warrant did not include any reference to a map where the outlines of the overlay district might be determined, but a small sketch was given to the voters as they entered the meeting. A plan also was brought to the Planning Board hearing on the proposed amendment and thereafter hung on the wall in the Town Hall. Presumably, it was the outline as shown on the sketch distributed at the meeting which the voters adopted. However, after the meeting, as the Agreed Statement makes clear, certain officials changed the boundary line and determined that certain parcels should be without the district and the lines were redrawn before the article was submitted to the Attorney General for his approval. The overlay district will change also from time to time as future development warrants since it may be found hereafter that certain parcels will exit directly onto other thoroughfares and will not use Tea Lane, but it is unclear now when or how such determination will be made.

The case law establishes that a certain amount of judgment on the part of local officials in determining the applicability of zoning regulations is not proscribed. In Fogelman v. Chatham, 15 Mass. App. Ct. 585 (1983) the Court held, contrary to what I had found, that provisions of the Chatham wetlands overlay district were not unconstitutionally vague and the exercise of local judgment to determine the applicability of zoning was permissible. Whatever one may think of the Court's reasoning in Fogelman, Chilmark has taken the exercise of judgment one step further. It has first redrawn the lines as determined by the town meeting and presumably will continue to exercise judgment in each instance when construction is contemplated as to whether a particular house will be reached or may be reached by way of Tea Lane. It is unclear as to the person with whom such decision will rest, but it would appear to be the Building Inspector. Like Fogelman, Farriagia v. Board of Appeals of Marshfield, 14 Mass. App. Ct. 720 , 722 (1982) upheld the definition of an inland wetland district, with an alternate determination by the Building Inspector specifically provided for in the by-law even though there were errors in the zoning map.

Emond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 630 (1989) also recognizes more discretion in local authorities than a facial reading of Chapter 40A would suggest; under the circumstances in Emond uniformity requirements were not violated. In the Chilmark by-law, however, there is no allusion to the authority which may exercise this judgment nor under what circumstances, let alone the inclusion of guidance by "clear and uniform standards" prescribed by the Appeals Court in Emond. Id. at 632.

As distinguished from Fogelman, Farriagia and Emond in the present case there is no specific description in the by-law itself of the area encompassed within the Tea Lane overlay district, there is no criteria by which it may be determined whether or not a parcel is "accessed from Tea Lane" and the map already has been changed since the town meeting but before its submission to the Attorney General. For all these reasons it appears to me that the by-law is arbitrary and unreasonable and falls within the precedent of O'Connell v. Brockton Board of Appeals, 344 Mass. 208 (1962) where the court found that the by-law was unconstitutionally vague.

Another issue in the case is the validity of the requirement that minimum lot size in the district be five acres. The Court reaches this question only if the decision on the imprecision of the terms of the by-law is incorrect. There always is a presumption, of course, in favor of the validity of a municipal enactment, Crall v. Leominster, 362 Mass. 95 (1972) and it is only where there is an unreasonable exercise of power having no relation to public safety, public health or public morals that a court may abrogate the legislative act. If the enactment is reasonably debatable, the judgment of the local legislative body must be sustained. See Crall, supra, at page 103, 104; Caires v. Building Commissioner of Hingham, 323 Mass. 589 (1949).

The Supreme Judicial Court has upheld a minimum lot size of one acre in the suburban Town of Needham. Simon v. Needham, 311 Mass. 560 (1942). In the next case to reach the Court on this question of the permissible control of lot size, Aronson v. Sharon, 346 Mass. 598 (1964), the Court upheld the Land Court which had decided that a minimum lot size of 100,000 square feet was unreasonable as applied to the plaintiff's land. One purpose at least for the overly large lot size in Aronson was conservation which required, the Court decreed, an eminent domain taking, not regulation. Finally in Wilson v. Sherborn, 3 Mass. App. Ct. 237 (1975) the Court found the adoption of two acre zoning valid in view of sewer and water conditions prevailing in the town. No minimum lot size greater than two acres has as yet been upheld by the Massachusetts appellate courts. It is true that the required lot size in Sturges v. Town of Chilmark, 380 Mass. 246 (1980) was three acres, but the size was not an issue in that litigation, and the point was not addressed by the Supreme Judicial Court.

In the present case the fear of overdevelopment as perceived by some members of the Planning Board seem exaggerated when growth or lack thereof during the past nine years is considered. Protection of flora and fauna comes perilously close to what the Court held required eminent domain action in Aronson. Construction of homes does indeed increase the likelihood of nitrogen loading, but it does not appear that the threat is such that the five acre standard is a rational method of prevention when balanced against damage to the owner, often nonresident, by the requirement of such a large minimum lot size in this area. I can only conclude that the measure basically is anti-growth and exclusionary in nature. This conclusion is reinforced by the fact that Tea Lane is a public way open to all, not just to area home owners.

On all the evidence therefore I find and rule that the by-law creating the Tea Lane overlay district is invalid for the following reasons:

a) It lacks mechanics for determining the question of access.

b) The boundaries were revised after the town meeting action by unknown town officials.

c) It is unconstitutionally vague.

d) The minimum lot size is excessive, has insufficient relation to the purposes for which zoning may be enacted and is intentionally exclusionary in nature.

Judgment accordingly.