Both of these matters involve certain conditions placed on the use of a driveway in the Town of Harvard by the Board of Selectmen of said Town, which driveway accesses a clubhouse in the Town of Ayer. The clubhouse is situated on a small portion of a golf course, the bulk of the course being in Harvard. The only practical access to the clubhouse is from a public way in Harvard and crosses a portion of the golf course in that town. Plaintiff proposes to serve alcoholic beverages at the clubhouse to persons using the golf course. Harvard has not accepted the provisions of G.L. c. 138, hence does not license such sales.
Miscellaneous Case No. 149758 is an appeal under c. 40A, ยง17 of a decision of the Board of Appeals upholding a certain restriction placed on a special permit (site plan) issued by the Selectmen. Civil Action No. 91-1058 is a Superior Court case challengng certain conditions of a "Driveway Access Permit" issued by the Selectmen. This action was interdepartmentally transferred to this Court for trial.
These cases together with eight exhibits were submitted on an agreed statement of facts and memorandum of counsel on April 27, 1991. In consideration thereof I find the following facts to be pertinent.
1. Plaintiff is the owner of approximately 168.96 acres of land ("Locus") of which about five acres is in the Town of Ayer, the balance being in the Town of Harvard. The land in Harvard is located within an "AR District".
2. Plaintiff proposes to construct, or has constructed, an 18-hole full-sized golf course on Locus with a clubhouse, maintenance building, driveway, parking and practice areas. The golf course (tees, fairways, greens and practice areas) will be situated entirely in Harvard, while the clubhouse will be situated entirely in Ayer. The clubhouse will be accessed by a driveway running from Shaker Road, a public way in Harvard, across a portion of Locus situated in Harvard. Any driveway which can reasonably and legally be constructed to service the clubhouse would be so situated.
3. Plaintiff proposes to sell and serve alcoholic beverages at the clubhouse, for consumption therein, to persons using the golf course.
4. A golf course is a permitted use in Harvard, subject to Sections 6.3 and 6.3.1 of the zoning by-law, sometimes referred to as Site Standards Section which require site plan approval in the form of a special permit. All necessary permits and approvals have been received from Ayer, and such are not at issue here.
5. On May 26, 1989 Plaintiff submitted an application to the Defendant Board of Selectmen ("Selectmen") seeking site plan approval for Locus. The Selectmen's decision was issued on April 3, 1990, approving the proposed subject to various restrictions and conditions. These restrictions and conditions were appealed to the Defendant Board of Appeals ("Board") on April 25, 1990.
6. Subsequent to the appeal to the Board, the Selectmen, after conferring with Plaintiff, modified the approval resolving all issues except Paragraph 3 thereof which is the subject matter of this case. Said paragraph reads:
Specifically, the use of the driveway in Harvard to access a facility serving alcoholic beverages is prohibited.
7. On August 13, 1990 the Board filed its decision which upheld the aforesaid condition. The other conditions were not considered inasmuch as they were presumably considered resolved.
8. The Town of Ayer has adopted the provisions of G.L. c. 138 allowing the sale of alcoholic beverages. Harvard has not so acted, and accordingly it is a "dry town". Plaintiff has stipulated that he will not permit any such beverages to be sold or consumed on any portion of the Locus in Harvard.
9. A large percentage of all 18-hole golf courses in the Commonwealth permit the consumption of alcoholic beverages thereon.
10. On April 6, 1991 the Selectmen approved Plaintiff's application for a Driveway and Construction and Connection Permit ("Permit") as required by the Harvard by-law, to allow access to Shaker Road. Said approval was made subject to seven restrictions and conditions including the following which are the subject of this case:
3. The connection to serve only those uses set forth in Condition 3 of the Site Plan Approval of the Board of Selectmen and specifically does not include use of the connection as access to a facility serving alcoholic beverages, permitting alcoholic beverages to be served, or having a liquor license.
5. Applicant shall, at the same time as and as part of the compliance review set forth in the Condition 18 of the Site Plan Approval of the Board of Selectmen, conduct traffic counts, in number and locations specified by the Board of Selectmen but which shall be pursuant to this Permit and not under the Site Plan Approval. If at any time a traffic count is more than 35% greater than the estimated traffic found in Finding 9, the Applicant shall conduct a recount six (6) months from that date. If both counts are more than 35% above the estimated traffic found in Finding 9, then this permit shall be reviewed for compliance and such further action as is deemed necessary by the Board of Selectmen.
6. The type of traffic, both as to frequency and size of vehicles shall be only that typically found in Agricultural/Residential areas in the Town of Harvard.
7. In the event that the Applicant shall have any materials described in Conditions 15 and 17 of . . . [the Site Plan Approval] delivered to the premises, Applicant shall give notice of such deliveries [to] the Emergency Services (dispatch center) of the Town of Harvard at least forty-eight (48) hours in advance of such delivery.
SITE PLAN APPROVAL, RESTRICTION 3
Restriction No. 3 is apparently based upon the reasoning that the owner of land zoned for certain uses (in this case agricultural / residential) may not use such land as an access roadway to access land in the adjacent district for uses not allowed in the roadway district. This reasoning is based upon the reasoning of the line of cases beginning with Harrison v. Building Inspector of Braintree, 350 Mass. 559 (1966) and as further enunciated in Chelmsford v. Byrne, 6 Mass. App. Ct. 848 (1978) and Burlington Sand v. Harvard, 26 Mass. App. Ct. 436 (1988). These cases may be distinguished from the present situation on several grounds.
In all of the above cited cases the uses in the adjoining district was a use prohibited in the access district by the zoning by-law of that district. In this instance the questioned use, i.e., sale of alcoholic beverages for on-site consumption, is not prohibited by the zoning by-law; it is prohibited because the Town of Harvard has not chosen to adopt the provision of G.L. c. 138. It would appear that were the town to adopt said statute, such sales would be permitted under the zoning by-law as an accessory use, one subordinate to and customarily incidental to a golf course, particularly when considering the vast majority of golf courses in the Commonwealth. The basis of the cases above cited is that access to land zoned for a particular use (i.e., industrial) is such a use (i.e., industrial). In this instance the uses, as allowed by zoning in Ayer are compatible with those allowed in Harvard.
While it is true that golf courses in Ayer may sell alcoholic beverages while those in Harvard may not, the principal use for which persons will use the access road is to play golf; this is particularly true considering the restrictions to which Plaintiff has stipulated. [Note 1] There may well be a permitted use in Ayer which differs in kind to such an extent as to evoke the principal of Harrison, but I do not find that Plaintiff's proposed use is such a difference. Moreover, unlike the Burlington or Harrison cases the way in Harvard will not be burdened by persons travelling for a non-permitted use (i.e., industrial) or used as a part of such activity (i.e., hauling of gravel). There will be an occasional delivery truck carrying alcoholic beverages, but except for exterior decoration such vehicles differ little from vehicles delivering soft drinks or food products. It is difficult to believe that a resident of Harvard or anywhere else would be prohibited from using an inter town private way of Harvard to travel to an adjacent town for the purpose of purchasing an alcoholic beverage.
Under the present circumstances and stipulations, the sale and consumption of alcoholic beverages in Ayer incidental to the playing of golf is not a use of the way in Harvard within the context of any zoning prohibition.
DRIVEWAY CONNECTION PERMIT
The driveway by-law appears to be a general by-law adopted pursuant to the Home Rule Amendment and G.L. c. 40A. By its own language, it sets forth design and construction requirements intended that the construction of the driveway have no adverse effect upon the useability and safety of a connecting public roadway. The by-law clearly addresses engineering and construction standards from a safety point of view. It is not a zoning by-law and accordingly cannot regulate the use of Plaintiff's land in Harvard, much less such use in Ayer. Nor can the driveway by-law under the guise of safety and engineering regulations, regulate the flow of traffic over the driveway. Granted a driveway with extensive use, i.e., shopping center, etc. may call for different and perhaps more extensive construction (width, curbs, grade, traffic signs) than a driveway accessing a single dwelling, such regulation, however, cannot regulate the kind or amount of traffic passing over the way. The marginal cost/pricing theory has no application to zoning or to the permits requested.
While I will not debate the merit of what may a novel expression of the towns' desire to suppress, where possible, if not prohibit the use of its ways by persons who have consumed alcoholic beverages, such regulation is within the province of the General Court who have acted thereupon and not the individual towns (except, of course, to the extent they may regulate sales within their boundaries). Even if it were, such regulation, and accordingly the attempt at such regulation by driveway permit, is improper as it is not uniformly applied to all persons travelling the ways of Harvard and hence is clearly discriminatory.
In consideration of the foregoing I rule that the Board of Selectmen exceeded its authority in imposing Condition 3, prohibiting the use of the driveway to access a facility in Ayer serving alcoholic beverages, and accordingly the Site Plan Approval is remanded to the Board for modification of Condition 3 not to be inconsistent herewith.
I further rule that Restrictions and Conditions Nos. 3, 5, 6 and 7 are beyond the scope of the Driveway Connection By-law and inconsistent with G.L. c. 40A, and accordingly must be and hereby are quashed and stricken.
Judgment accordingly.
ROBERT J. McGINTY, TRUSTEE OF WOODLAND COMPANY vs. STEPHEN MOREHOUSE, MARCIA TAYLOR, ROBERT LERNER, JOHN W. PURDY, JR. and FREDERICK PRIFTY, as they are the members of and constitute the BOARD OF APPEALS OF THE TOWN OF HARVARD, and SALLY A. WOSTER, DANA A. OWENS and RICHARD F. MAIORE, as they are the members of and constitute the BOARD OF SELECTMEN OF THE TOWN OF HARVARD.