MISC 153461

February 5, 1992

Dukes, ss.



By complaint filed November 14, 1990, pursuant to G.L. c. 40A, §17, Plaintiffs appeal the decision of the Edgartown Zoning Board of Appeals ("the Board") granting Defendant, J. David Kohn's ("Kohn") application for a special permit to build a guest house on his land ("Locus") on Chappaquiddick Island, Edgartown. Plaintiffs further seek a declaratory judgment that the Board has no authority to exempt an applicant from any of the provisions of Sections 7.2(b) and 14.l (e) of the Edgartown Zoning By-Law ("the By-Law"), by grant of a special permit.

This case was tried on September 12, 1991, at which time the trial proceedings were transcribed by a court-appointed reporter. Six witnesses testified and thirteen exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal. The Court took a view of Locus on October 25, 1991.

Both Plaintiffs and Defendants filed Post-Trial Memoranda on November 4, 1991.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Kohn is the owner of Locus which is approximately 23,000 square feet in area, and is shown on Edgartown Assessor's Map 30 as Lot 21. There is presently a three bedroom single-family seasonal dwelling on Locus ("the Dwelling").

2. Plaintiff, J. Sinclair Armstrong ("Armstrong") owns land abutting Locus to the north. Plaintiffs, George and Frances Barnard ("the Barnards") own land abutting Locus to the south. Plaintiff, Elizabeth Stetson-Pettit ("Pettit") owns land to the east of Locus and separated from Locus by a thirty foot wide access road. All of the aforesaid parcels contain seasonal homes.

3. On or about September 27, 1990, Kohn filed an application ("the Application") for a special permit under Section 7.2(b) of the By-Law to construct a one-bedroom guest house ("the Guest House") on Locus. Kohn and his family intend to use the Guest House during the fall and winter, as the Dwelling is built on pilings extending over the water. There are exposed pipes under the existing Dwelling that would be very difficult to insulate for winter use. Kohn proposes to reduce the number of bedrooms in the Dwelling to two so that the total number of bedrooms on Locus would remain the same.

4. In the Application, Kohn proposed to use the existing septic system ("the Septic System") on Locus to service the Guest House. The leaching pit for the Septic System is approximately 125 feet from a groundwater well on Armstrong's property and less than 200 feet two wells on the Barnard's property. It is also less than 200 feet from existing sanitary disposal systems on those properties.

5. Locus is in an R-120 Residential District and the Inland Zone of the Costal District.

6. Section 3.1 of the By-Law establishes a three acre minimum lot size in the R-120 Residential district. Locus, as stated, contains only 23,000 square feet.

7. On October 24, 1990, the Board unanimously voted to grant the special permit requested by the Application, as evidenced by its decision ("the Decision") filed with the Edgartown Town Clerk on October 16, 1990.

8. Section 7.2 (b) (2) of the By-Law provides that in the R-120 District, by special permit:

b) a guest house may be constructed on a lot with an area of less than three acres provided that:

2) the ground water [sic] well and the sanitary disposal system shall each be located at least 200 feet from any groundwater well and any sanitary disposal system and 200 feet from any salt water body.

9. Section 14.l (e) (8) places restrictions on land use in a Coastal District as follows:

8. No sanitary disposal facility shall be located less than six hundred feet from a public water supply well nor less than two hundred (200) feet from any domestic water supply well. (emphasis added)

10. Section 17.5 of the By-Law provides that the Board shall grant a special permit only if it finds that the proposed development is in harmony with the general purposes and intent of the By-Law.

In special permit appeals brought pursuant to G.L. c.40A, §17, the reviewing court hears the matter de novo, makes its own findings of fact and, on the facts so found, affirms the decision of the permit granting authority unless it is determined to be based on some legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979). Insofar as the court's review is limited to the legal validity of the permit granting authority's action in granting or denying the special permit, Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983), it may not substitute its judgment for that of the permit granting authority. Gulf Oil Corp. v. Board of Appeals of Framinaham, 355 Mass. 275 , 277-278 (1969).

The issue in dispute in this case is whether the requirements of Sections 7.2 (b) (2) and 14.l (e) (8) ("the Disputed Sections") apply with regard to both proposed and existing sanitary disposal systems or only with regard to proposed systems. In the former case, Plaintiffs argue, the Board has no authority to allow construction of a guest house on Locus, as such construction would require a variance under G.L. c. 40A, §10 and Section 17.4 (c) of the ByLaw.

It is a well-established principle that in statutory interpretation, each word is to be given its plain or ordinary meaning. Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket SS. Authy., 352 Mass. 617 (1967). The Disputed Sections condition the construction of a guest house on the location of its sanitary disposal system. While I agree with Defendant that the words "shall be located" refer to the future, the future event is the construction of the guest house as well as the location of the disposal system. Hence, in the instant situation, if the Guest House is built as proposed, at the time the construction is completed, the sanitary disposal system will be less than 200 feet from several ground water wells and consequently will not meet the requirements of Section 7.2 (b) (2).

Accordingly, I find that the Board exceeded its authority in granting Kahn's special permit for a Guest House on Locus, and the Decision must be and is hereby declared invalid.

Judgment accordingly.