Home KARYN CALIRI, Trustee of Jasper Realty Trust v. RICHARD KNIGHT, CAROL GRANT, JOHN MAGNUSON, NANCY WHIPPLE, and NANCY KELLY as they are Members of the Town of Edgartown Zoning Board of Appeals; PATRICK COURTNEY and THOMAS COURTNEY

MISC 11-448373

March 2, 2012

DUKES, ss.

Piper, J.



This is an appeal filed pursuant to G.L. c. 40A, § 17 by plaintiff Karyn Caliri (“Plaintiff”) from a decision (“Decision”) of the Town of Edgartown Zoning Board of Appeals (“Board”), whose members are defendants, granting a special permit (“Special Permit”) to defendants Patrick and Thomas Courtney (“Private Defendants”). The Special Permit approves the Private Defendants’ plan to operate a restaurant (now, following modification, with 49 seats) at 6 South Water Street in Edgartown.

The Board filed its Decision with the Town Clerk on April 21, 2011; the complaint was filed here on May 10, 2011 and docketed as Land Court Miscellaneous Case No. 11 MISC 448373. On June 2, 2011, the Board filed with the Town Clerk a decision on a request for modification (“Modification Decision”) of the initial Special Permit. Plaintiff appealed the Modification Decision pursuant to G.L. c. 40A, § 17; the complaint challenging the Modification Decision was filed with this court on June 21, 2011 and docketed as Land Court Miscellaneous Case No. 11 MISC 449416. In an order issued July 8, 2011, the court remanded these cases to the Board. The two cases were consolidated July 21, 2011. The Board filed its decision on remand on August 26, 2011, and the pleadings have been amended to have the remand decision also subject to review by the court under G.L. c. 40A, §17.

These cases now are before the court on a motion for partial summary judgment filed by the plaintiff. In that motion, she asked for a ruling that the Board acted in legal error when it granted the Private Defendants the Special Permit (as modified by later proceedings before the Board), because, plaintiff says, the Private Defendants’ project authorized by the Board was required to be referred by the Board to the Martha’s Vineyard Commission (“Commission”) for a determination whether or not the project constitutes a development of regional impact (“DRI”) under the Commission’s enabling legislation, Chapter 831 of the Acts of 1977, as amended. Plaintiff submits that the grant of the Special Permit without making the referral to the Commission renders the Board’s approval of the revised Special Permit improper, and she seeks judgment to that effect.

Defendants oppose this request for partial summary judgment, and urge the court to award partial summary judgment to them on this issue. The court held a hearing on the partial summary judgment request (and related motions to strike) on February 14, 2012. All parties’ counsel attended and argued. At the conclusion of the hearing, the court invited counsel to consider whether some or all of their clients would be amenable to seeking a written statement from the Commission or its staff (to be submitted to the court) about whether or not the Commission was of the view that this project ought be referred to the Commission for evaluation whether or not it constituted a DRI. The parties unanimously rebuffed this proposal by the court; on February 16, 2012, all counsel joined in a letter to the court advising it that no party would request such a statement from the Commission. The court now decides the pending motions.


“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. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. 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, 459 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. “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56(c).

After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the moving and opposing papers, and the arguments presented at the hearings, the court concludes that the uncontested facts and the governing law call for denial of the plaintiff’s motion for partial summary judgment, and for award of partial summary judgment in defendants’ favor on the issue now pressed by the parties.

The court rules as it does substantially for the reasons supplied in the memoranda of law submitted by the Board and the Private Defendants. Without limiting the breadth of those reasons, the court decides that the following reasons, stated briefly, justify the conclusion that the Decision may not be annulled or modified based on the Board’s failure to refer the Private Defendants’ restaurant project to the Commission for consideration as a possible DRI:

1) Under the comprehensive statutory scheme set out in the Act, as now in effect, a private party abutter challenging a grant of a special permit does not have standing to obtain, in a G.L. c. 40A, §17 appeal, judicial review of a local zoning board’s determination that a project does not constitute a DRI, and thus does not require referral to the Commission. Although the Act uses local zoning boards as receptors for projects which should be brought to the Commission’s attention if they trigger the need for Commission DRI review (and even though the Act uses provisions embedded in the local zoning bylaws to require referral of those projects to the Commission), these procedures are not matters of local zoning, do not give vest local zoning rights in neighbors, and do not give rise to a zoning appeal right under G.L. c. 40A, §17. This is so notwithstanding that the abutter may in other respects be aggrieved by the board’s grant of a special permit or other zoning approval for the project, and so be entitled otherwise to de novo judicial review of that permit.

2) It is the Commission alone which under the Act has responsibility for seeing to it that projects which do or may constitute DRIs are brought before the Commission for review under the Act and the Commission’s implementing rules. The Commission has ample power to compel a project proponent to submit to review by the Commission. If an abutter such as the plaintiff in this case had the right, through the roundabout process of a zoning appeal under G.L. c. 40A, §17, to force a referral absent a Commission request to have the project come before it, the court would be in the awkward position of requiring referral to a Commission that was indifferent or opposed to DRI review for the project.

The court expresses no view as to whether a private party might in an action sounding in mandamus, presumably to be brought in the Superior Court Department, be able to compel the Commission to require a project to come before the Commission for DRI review. But the court is convinced that such a result cannot be achieved through a zoning appeal under G.L. c. 40A, §17.

3) The Land Court lacks jurisdiction to hear appeals from decisions of the Commission. The Act, in section 18, leaves that solely to the Superior Court Department--in marked contrast to the sibling act which established and governs the Cape Cod Commission, where the legislature conferred jurisdiction concurrently on this court and the Superior Court. This makes it all the more improper for this court to grant plaintiff the relief she requests in her motion. If this court lacks jurisdiction to review decisionmaking by the Commission, the court ought not use the zoning statutes to take onto itself the authority to compel the referral of a project to the Commission, when doing so would require this court to construe the meaning of the Act and the Commission’s implementing regulations. If the legislature thought it improper to have the Land Court pass judgment on the meaning of the Commission’s regulations (including those which define whether or not a project constitutes a DRI) when the Commission itself acts or declines to act on a project, it is most doubtful that the legislature wanted this court to adjudicate the same question when presented in a zoning appeal.

4) On the proper uncontested record facts, there is no doubt that the Commission is fully aware of the Private Defendants’ restaurant project. The Jason affidavit, and other parts of the record, show, at a minimum, that this project was brought to the attention of several Commission members and officials. There is objection from plaintiff to the Jason evidence, and plaintiff is correct that it ought not to be considered for the truth of the legal conclusions members of the Commission or its Compliance Committee may have drawn about whether or not the Courtneys’ project triggers the need for Commission DRI review. But this evidence is proper to show that the details of the restaurant project were amply communicated to a number of members of the Commission and the committee, and to Commission staff. The only reasonable inference is that the Commission knows plenty about the project, and (so far at least), has taken no action to insist that the project submit to DRI review. For this reason, granting the relief plaintiff seeks--returning this case to the Board with the direction that it make referral to the Commission--would be an unnecessary action for the court to take, even were it to conclude it had that authority. This is not an instance where a project has escaped the Commission’s notice, and a referral by the Board would be the only way to make the Commission aware.

5) Even were the court to engage in the interpretation of the Commission’s regulatory standards and criteria for the identification of DRIs--something which the court concludes it lacks authority to do--the court would determine that the Courtneys’ project, as last modified, does not trigger DRI review. The standards and criteria which control are those of Section 3.2(d) of the DRI Checklist, which specifically address “[a] public restaurant in a duly established B-1 Zoning District which is designed or proposes to accommodate fifty (50) or more seats....” This specific criterion places the Courtney restaurant, now purposefully limited to 49 seats, just below the threshold which would require DRI review. The specific standard is the one which applies, not the other more general parts of the DRI Checklist which catch otherwise unaddressed uses. Plaintiff’s contention that even a small restaurant, with seating well below the fifty seats set out in Section 3.2(d), would require DRI review because it constituted a change in use or an increase in intensity of use under Section 3.1, would render the specific standard of Section 3.2(d) of little independent regulatory value. It is the specific standard which controls. Were the court able to interpret and apply the Commission’s standards and criteria, the court would conclude that the restaurant project as currently constituted does not trigger DRI review.


The court rules that plaintiff’s partial summary judgment request cannot be granted, and that on the issue presented by that motion, partial summary judgment is to be awarded, in the absence of any material disputed facts, as matter of law, to defendants. The court DENIES all motions to strike parts of the record, but would have reached the same legal conclusion on partial summary judgment even if the plaintiff’s motions to strike had been allowed.

As a result of the ruling made in this Order, the court will not in this action modify or annul the Board’s Decision, or grant any other relief, on grounds that the Board was required to have made referral of the Private Defendants’ project to the Commission for consideration as a possible DRI. Because the pending motions address only this issue, the case is not ready to proceed to judgment. The court still must hear the evidence de novo to decide the remaining aspects of plaintiff’s appeal from the Decision. It is

ORDERED that in these consolidated cases, Miscellaneous Cases Nos. 11 MISC 448373 and 11 MISC 449416, plaintiff’s motion for partial summary judgment is DENIED, and partial summary judgment is GRANTED to defendants.

So Ordered.

By the Court. (Piper, J.)