Plaintiffs Maria A. Kitras and James J. Decoulos, co-trustees of the Gorda Realty Trust ("Gorda") commenced this case in the Land Court on December 21, 2011. Plaintiffs seek review of a decision of the Plan Review Committee ("Plan Review Committee") of the Town of Aquinnah Planning Board, whose members are defendants. The Martha's Vineyard Land and Water Commission ("Commission"), and the Town of Aquinnah ("Town" or "Aquinnah") also are defendants.
This litigation concerns Gorda's ongoing attempts to construct a single family home on its 3.2 acre parcel of land off Moshup Trail in Aquinnah. The proposed construction involves a bridge or culvert system that would span an intermittent stream, construction of an access drive, and ultimately, construction of a single family home on the property.
II. PROCEDURAL HISTORY
In 1999, the entire Town of Aquinnah [Note 1] was designated a District of Critical Planning Concern ("DCPC") by the Martha's Vineyard Commission. The Commission's designation decision required the Town to adopt land use regulations for the DCPC, and provided guidelines for the type of regulations required. A temporary building moratorium was imposed pending the adoption by the Town of regulations that conformed to the DCPC. The Town developed regulations, and following a hearing in April of 2000, the Commission approved the regulations offered by the Town as conforming to the Commission's guidelines. On May 23, 2000, the Town voted to adopt the proposed regulations, which contained, among other things, what is now section 13 of the zoning bylaw and the subject of the instant litigation. Following the expiration of the moratorium, Gorda made some attempts to move ahead on plans to develop its property, which are thoroughly memorialized in the decision of our Supreme Judicial Court, Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 (2009).
On July 22, 2011, Gorda applied to the Plan Review Committee for a special permit pursuant to section 13 of the zoning bylaw, the Aquinnah DCPC regulations. By decision dated December 6, 2011 and filed the next day with the Town Clerk, the Plan Review Committee denied Gorda's application. Gorda appealed the decision to the Land Court, commencing the instant litigation on December 21, 2011. [Note 2]
The December 6 decision of the Plan Review Committee enumerated five reasons for the denial: (1) that the bridge or culvert system was a "structure" that could not be located within thirty feet of the property line; (2) that Gorda had not received all necessary approvals from DEP and other agencies; (3) that Gorda had not resolved an easement dispute with neighbors; [Note 3] (4) that the application lacks frontage on a public or private way; and (5) that the project "is not in harmony with the general purpose and intent of the Aquinnah DCPC" or other special permit criteria in the zoning bylaw.
On March 20, 2012, the court held a hearing to determine jurisdiction, to determine whether the Martha's Vineyard Commission was a necessary party, and on Gorda's motion to add a count under G.L. c. 240, § 14A. The court denied the motion to amend, dismissed certain counts as being outside the Land Court's subject matter jurisdiction, and directed that the Martha's Vineyard Commission be added as a party. [Note 4] As a result of the court's rulings, Gorda filed an amended complaint that excised the dismissed counts, and added the Commission as a party defendant. [Note 5] The parties sought and received an Order of Assignment to have the Land Court Justice to whom this case had been assigned (Piper, J.) sit simultaneously as a Justice of the Superior Court Department, as contemplated by the court's March 20 rulings. [Note 6]
With the pleadings now in order, and jurisdictional concerns laid to rest, the parties prepared motions for summary judgment (and related motions to strike), which were heard on September 24, 2012. Following hearing, the court solicited some further briefing, thereafter taking the matter under advisement. [Note 7]
Meanwhile, in May of 2012, Gorda applied to the building inspector for a declaration that (1) the proposed culverts or bridge were not "structures" under zoning that are subject to the thirty-foot setbacks, and (2) that the lot has adequate frontage. The building inspector denied Gorda's request, and Gorda took an administrative appeal to the Zoning Board of Appeals. Gorda's appeal also requested, in the alternative, that a variance issue for the setback and frontage requirements. Following hearing, the Zoning Board upheld the building inspector in a decision filed with the Town Clerk on September 18, 2012, and denied the variance in a decision filed September 25, 2012. Gorda commenced a second action in the Land Court on October 4, 2012, which appealed, pursuant to G.L. c. 40A, § 17, the September 18 and September 25 decisions. [Note 8] Following a case management conference with the court, the parties filed a stipulation that, among other things, stated that the parties agreed that the rulings on the interpretive questions of the zoning bylaw that were the subject of the motions for summary judgment argued September 24, 2012 "shall apply with equal force" to the newly filed case. The court approved the stipulation and consolidated the newly filed case with the pending action. [Note 9]
On November 16, 2012, Gorda commenced a third action in the Land Court, appealing pursuant to G.L. c. 41, § 81 BB an October 31, 2012 decision of the Planning Board that denied endorsement of a plan filed under G.L. c. 41, § 81 P, a so-called "approval not required" plan. [Note 10] The parties to the 81 BB case, plus the Commission, filed a stipulation that the interpretive questions of the zoning bylaw argued in the summary judgment motions would be binding on all parties in the analogous claims just filed. The parties further agreed that, given the Commission's stipulation, the Commission did not need to be made a party to the 81 BB case.
Finally, on March 15, 2013, the court received a letter from municipal counsel reporting that the Massachusetts Attorney General has disapproved certain of the 2011 amendments to the zoning bylaw. Gorda, the Commission, and the municipal parties each have briefed their positions on this development.
The issues presented in Gorda's motion for summary judgment are: (1) whether the proposed bridge or culvert system is a "structure" subject to the thirty-foot setback requirements of the zoning bylaw; (2) whether the property has sufficient frontage under zoning; (3) whether the Town's adopted DCPC regulations, appearing in section 13 of the zoning bylaw, are invalid; and (4) whether section 3 of the zoning bylaw, which purports to require some kind of "special permit" is valid.
The issues in the municipal parties' motion for summary judgment are: (1) whether Gorda's claims concerning the facial validity of section 13 of the bylaw are barred by the statute of limitations; (2) whether Gorda's claims concerning the 2011 bylaw amendments regarding frontage are barred by the statute of limitations; and (3) whether Gorda's claims concerning the facial validity of section 13 of the bylaw are barred by issue preclusion based on the prior litigation which culminated in Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 (2009).
The Commission's motion for summary judgment presents the following issues: (1) whether Gorda's claims concerning the facial validity of the Aquinnah DCPC are barred by issue preclusion based on Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 (2009); (2) whether Gorda's claims for declaratory judgment must be dismissed; (3) whether Gorda's certiorari claim is barred by the statute of limitations; and (4) whether the Commission has exceeded its authority. [Note 11]
The following material facts are found in the rule 56 record and are undisputed:
A. Section 13, Site Plan Review, and the Special Permit
1. Gorda seeks to build a three-bedroom home on a 3.2 acre unimproved lot situated in Aquinnah's Rural-Residential zoning district. A single-family home is an allowed use in the Rural-Residential zone.
2. Article III of the Aquinnah zoning bylaw is titled Siting, Dimensional, and Density Regulations.
3. Section 3.9-1 of the zoning bylaw, titled Site Plan Review, provides that: A Special Permit from the Planning Board Review Committee is required for the siting of: (1) A building, structure or dwelling on its lot including primary and accessory dwellings and or buildings, (2) An addition to any existing buildings, structures or dwellings, (3) Roads, curbcuts, driveways, vehicular paths, pedestrian paths over three feet wide and private residential parking areas, (4) Pools and tennis courts. (5) Wells, septic systems and subsurface, surface drainage or runoff systems, in the Cliffs DCPC.
4. Section 3.9-2 of the zoning bylaw, titled Siting Guidelines, provides that "Before granting a Special Permit for a new structure, addition or alterations to the land such as a driveway or roadway, the Planning Board Plan Review Committee must consider the following guidelines[,]" - which guidelines then are enumerated in six numbered paragraphs.
5. Gorda's lot also is subject to a special overlay district known as the Aquinnah District of Critical Planning Concern. Gorda's proposed single-family home is an allowed use within the overlay district.
6. The land use regulations of the Aquinnah DCPC are found in Article XIII of the zoning bylaw, titled Town of Aquinnah District of Critical Planning Concern. Portions of Article XIII seem to have been imported word-for-word from Article III of the zoning bylaw.
7. Like section 3.9-1, section 13.4-1, also titled Site Plan Review, provides that:
A Special Permit from the Planning Board Review Committee is required for the siting of:
(1) A building, structure or dwelling on its lot including primary and accessory dwellings and or buildings, (2) An addition to any existing buildings, structures or dwellings, Roads, curbcuts, driveways, vehicular paths, pedestrian paths over three feet wide and private residential parking areas. (3) Pools and tennis courts.
8. Like section 3.9-2, section 13.4-2 is also titled Siting Guidelines, and provides that "Before granting a Special Permit for a new structure, addition or alterations to the land such as a driveway or roadway, the Planning Board Plan Review Committee must consider the following guidelines[.]" Section 13.4-2 sets forth its guidelines in six lettered paragraphs, which are (other than the use of letters instead of numbers) identical to the guidelines in section 3.9-2.
9. Section 3.7 of the zoning bylaw provides "All lots shall have a minimum frontage of 200 feet on a public or private way." This represents an amendment to this provision, adopted in 2011. The previous language of the identical section read "All lots shall have a minimum frontage of 200 feet on a public way."
10. Section 13.4-10 of the bylaw also provides that "All lots shall have a minimum frontage of 200 feet on a public or private way." This section was added as part of the 2011 amendments. Prior to the 2011 amendments, the 200 foot frontage requirement appeared only in Aquinnah's zoning bylaws, and not in the DCPC regulations.
11. In 2011, the Town, for the first time, adopted an express definition of "frontage," which provides at section 7.1:
FRONTAGE: The boundary of a lot running along a private or public way, but not along a common driveway, which contains at least one point of vehicular access to the lot at a location providing safe and adequate sight distance.
12. On or about March 5, 2011, the Planning Board submitted to the Commission proposed amendments to certain sections of the Aquinnah zoning bylaw. Among these were the changes to section 3.7, the addition of section 13.4-10, and the definition of "frontage" to be placed in section 7.1.
13. Following a public hearing on April 7, 2011, the Commission voted to accept the changes as "amendments to the regulations governing the [Aquinnah DCPC.]"
14. At the annual town meeting held May 11, 2011, the Town adopted these provisions into their zoning bylaw.
15. On February 25, 2013, the office of the Attorney General disapproved amendments to section 3.7, section 7.1, and section 13.4-10 of the bylaw, pursuant to G.L. c. 40A, § 5, based on what that office determined to have been inadequate notice.
16. Section 3.8-2 (A) and section 13.4-9 (B) (1) provide that "No roads or ways may be more than twelve (12) feet wide except by Special Permit."
17. Lot 232 does not abut any public way. The nearest public way, Moshup Trail, is 1,200 feet to the southeast.
18. An existing ten-foot wide dirt road extends northeasterly from the public way, but stops short of Lot 232. The ten-foot road extends 475 feet into Lot 708 and currently serves as the sole or primary access to Lot 708, which abuts Lot 232 to the south. The ten-foot road is constructed within a forty-foot easement layout.
19. Lot 708 does not abut the public way, Moshup Trail. There are two parcels, Lot 543 and Lot 544 North, between Lot 708 and Moshup Trail. The ten-foot road runs through Lot 543 and Lot 544 North within the layout of a forty-foot easement.
20. Gorda's 2011 proposal was to extend the existing forty-foot easement along the northeasterly bound of Lot 232, which is about 325 feet. The constructed ten-foot road would be extended onto Lot 232 within the forty-foot easement, but would not run the full length of the lot. Instead, the constructed road would terminate, and a driveway would be constructed off of it.
21. Gorda asserts that it has recorded easements which allow, as a matter of property law, use of the ten-foot road to access Moshup Trail.
C. The Bridge or Open Bottom Culverts
22. The proposed extension of the ten-foot road would include a span a small wetland area and intermittent stream on Lot 708.
23. Gorda proposed to span the wetlands with either a bridge, or a system of open-bottom culverts, composed of either precast concrete or metal.
24. The bridge would consist of two headwalls, fifty feet apart, rising three feet above the ground surface, with footings two feet below the ground. Steel beams would span the intervening distance, and the traveled surface would be wooden planks laid atop the beams. The finished height of the bridge would be approximately five feet above grade.
25. The alternative open bottom culverts would consist of concrete footings upon which the culverts would lie. Fill would be applied to the top of the culverts, resulting in a travel surface similar to the surrounding dirt road. The concrete culvert span would finish out approximately five feet above grade; the metal culverts six feet above grade.
26. Section 3.5 and section 13.4-6 provides: "all structures shall be set back at least: (1) Thirty (30) feet from any lot line, (2) One hundred and fifty (150) feet from Moshup Trail, Forty (40) feet measured from the centerline from all other roads and public ways."
27. The term "structure" is defined in section 7.1 of the bylaw as: "STRUCTURE: A combination of materials assembled at a fixed location to give support or shelter. A structure includes any building. A fence or wall over 6 feet high is considered a structure."
A. Summary Judgment Standard
"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 , 643-44 (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 Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 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. When appropriate, summary judgment maybe entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
B. Scope of Review by Court
The municipal parties argue that Gorda is not able to challenge the validity of Article XIII because the statute of limitations has run since the original DCPC designation in 1999, the April 2000 determination of conformance by the Commission, and the Town's adoption of DCPC regulations on May 23, 2000. [Note 12] The Commission, for its part, makes the same arguments regarding statutes of limitation, adding that such challenges also are barred by principles of res judicata as a consequence of the earlier adjudication resulting in the decision of our Supreme Judicial Court, Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 (2009).
The Supreme Judicial Court ruled that there is no right of a landowner to appeal from a designation of a DCPC by the Commission. Kitras, 453 Mass. at 256. The Kitras court specifically rejected the idea that G.L. c. 240, § 14A was available to "challenge the designation of a DCPC." Kitras, 453 Mass. at 257-58. Instead, the SJC offered that an action in the nature of certiorari, G.L. c. 249, § 4, may be filed. Id. at 256. Following Kitras, the Land Court, in an unappealed decision, ruled that G.L. c. 240, § 14A was not available to challenge a regulation enacted to a DCPC. See Bullen v. Velarde, 17 LCR 403 , 405 (2009) (Piper, J.), 2009 WL 1843616 at *5 ("Using G.L. c. 240, § 14A to review a regulation adopted pursuant to a DCPC suffers the same problems as reviewing the designation itself: it requires the application of a statute designed for by-laws of local impact to a regulation of regional or Statewide impact.").
Accordingly, without resort to the theory of res judicata, the court concludes that the plaintiffs have not advanced any viable count to challenge the quasi-legislative actions of either DCPC designation, or adoption by the Town of DCPC regulations. [Note 13] Instead, this case requires review, under the familiar standards in G.L. c. 40A, § 17, of a decision of the Plan Review Committee denying Gorda its requested permits. The Town concedes that "an aggrieved applicant is [not] foreclosed from challenging the Town's interpretation of a particular DCPC in the context of a permitting appeal[.]" The court is aware of no appellate case law that requires any other conclusion. In other words, access to the courts for persons aggrieved by a decision of a local permit granting authority is not cut off under G.L. c. 40A, § 17 simply because the local authority acted pursuant to a provision in its bylaw adopted pursuant to a DCPC. [Note 14]
Judicial review under G.L. c. 40A, § 17 involves the "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954)). The court must review the factual record without deference to the board's findings. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953); Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). This review is, however, circumscribed by the requirement to defer to the judgment of the local authority. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Gervk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co.. Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with "the validity but not the wisdom of the board's action." Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing an appeal under section 17 of G.L. c. 40A is not authorized to make administrative decisions. See Pendergast, 331 Mass. at 557-58; Gervk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board's judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).
It follows from these foundational principles that the court may overturn a decision of a local board only if the decision is "based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt.. Inc., 40 Mass. App. Ct. at 246. Moreover, where the court's findings of fact support any rational basis for the municipal board's decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.
C. Site Plan Review Under Section 3.9
Section 3.9 of the Aquinnah bylaw is adopted pursuant to the zoning act, and not a product resulting from procedures related to a DCPC. Section 3.9-1, titled "Site Plan Review" purports to require a "special permit" for, essentially, all construction. This section is not unlawful under SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984) because the "special permit" required is a non-discretionary site plan approval, not a discretionary special permit under G.L. c. 40A, § 9.
"[G.L. c. 40A,] § 4 does not contemplate, once a [zoning] district is established and uses within it authorized as of right, conferral on local zoning boards of a roving and virtually unlimited power to discriminate as to uses between landowners similarly situated." SCIT, Inc., 19 Mass. App. Ct. at 108. In Aquinnah's Rural-Residential district, single family homes are allowed as of right. To require a discretionary special permit for a use allowed of right violates the rule announced in SCIT, Inc., supra. However, in this case, the court's construction of Section 3.9 is that it does not authorize a fully discretionary special permit regime which would vest in the local board a broad discretionary power of denial. The court's conclusion is that the site plan review process in section 3.9 is of the non-discretionary type. See Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 138-39 (2000).
This conclusion is not hard to reach. The "siting guidelines" and "design guidelines" of section 3.9 are not even phrased as requirements; rather, the precatory word "should" is used, e.g., "the profile of development should be as unobtrusive as possible" (section 3.9-2 (A) (1)), "Driveways and roads should be winding, not straight" (section 3.9-2 (A) (5)). Elsewhere, certain practices are not required or prohibited, but instead are "encouraged" or "discouraged," e.g., "use of glass walls is discouraged" (section 3.9-3 (A) (3)), and "Design consistent with the rural and historical nature of the Town of Aquinnah is encouraged" (section 3.9-3 (A) (5)). [Note 15]
Nonetheless, a local board conducting generally non-discretionary site plan review is privileged, if not required, to deny the application based on intractable problems. See Y.D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 , 31 (1970)(site plan review "imposes regulation of a use rather than its prohibition."); see also Prudential Ins. Co. v. Westwood Bd. of Appeal, 23 Mass. App. Ct. 278 , 283 (1986). ("The judge was essentially to examine the proposal to see if the... problem was so intractable that it could admit of no reasonable solution."). Anything short of intractable, and the Plan Review Committee would have "improperly forbidden a permitted use." Id.
The question is whether the limited power to deny site plan approval for intractable problems exists when those problems are not, strictly speaking, as to matters of site planning enumerated in the bylaw's site planning provisions, but instead are zoning dimensional shortcomings which violate the other provisions of the bylaw. Here, the Plan Review Committee determined that Lot 232 lacked adequate frontage under zoning, and that development of Lot 232 would require "structures" within a zoning setback area-the bridge or culverts to be installed under the access across Lot 708 and its intermittent stream. Patent zoning violations are the kind of intractable problems that privilege (or, indeed, require) a board conducting site plan review to issue a denial. This is because a site plan approval only is available in the first place as to a use that is allowed as of right in the underlying district. It makes little sense for a local site planning board to engage in the mandated dynamic intercourse with an applicant--identifying and setting out to find ways to fix site planning concerns of an ordinary and resolvable character--when the board also takes note of an objectively obvious zoning dimensional failing that will doom the project. To require that protracted dialog between the applicant and the board when (if the board is correct about the insurmountable zoning barrier to construction) there is no realistic chance of that project going forward, would be to insist on wasteful and non-productive proceedings in the municipality. The likelihood is high that if an applicant is able to change the project to resolve an objective zoning dimensional failing, the revised project then will present itself differently for site planning purposes. The same is true if the applicant obtains a variance or other approval to address the dimensional problem; that approval may well come with conditions that require consideration, for site planning purposes, of a markedly different plan. It only makes sense for the local site planning board to require the process to unfold in this order, and to deny the application afflicted with the objective zoning defect, without prejudice to reapplying for site plan approval once that problem has been solved. [Note 16], [Note 17]
This analysis assumes, of course, that the issues identified by the Plan Review Committee-the setback violations posed by the stream spanning work and the lack of frontage-in fact do exist. The court now decides those pivotal questions.
The court concludes that the bridge or open bottom culverts, proposed by Gorda to get vehicles across the intermittent stream on Lot 708, are not "structures" subject to a thirty-foot setback, and that, in finding there would be an invasion (by a drive running over such a bridge or culverts) of the zoning bylaw's required setbacks, the Plan Review Committee relied upon an improper basis to deny Gorda's special permit application.
The term "structure" is defined in section 7.1 of the bylaw as: "STRUCTURE: A combination of materials assembled at a fixed location to give support or shelter. A structure includes any building. A fence or wall over 6 feet high is considered a structure."
Decisional law guides the court in interpreting the meaning of a local zoning enactment. The tools are the familiar ones of statutory construction.
"'We interpret a statute according to the intent of the Legislature,' Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123 , 124 (2006), looking first to the statutory language because it 'is the principal source of insight into legislative purpose.' O'Sullivan v. Secretary of Human Servs., 402 Mass. 190 , 194 (1988), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701 , 704 (1984). We will not expand or limit the meaning of a statute unless such is required by the 'object and plain meaning' of the statute. Canton v. Commissioner of the Mass. Highway Dep't, 455 Mass. 783 , 789 (2010), quoting Rambert v. Commonwealth, 389 Mass. 771 .773 (1983)." Norfolk & Dedham Mut'l Fire Ins. Co. v. Morrison, 456 Mass. 463 , 468 (2010).
Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning "without regard to . . . [the court's] own conceptions of expediency." Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960), quoting from Commonwealth v. S.S. Kresge Co., 267 Mass. 145 , 148 (1929). "We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). "When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose." Id.
The first sentence of the bylaw's definition of "structure" could be read as encompassing the culverts. They are made up of "materials," including metal or concrete, and do, in a strict sense, provide support for dirt and similar material over which a drive would be located and on which vehicles would pass. But such a reading would be so open-ended as to render the definition nearly unbounded-it would expand the meaning of "structure" to encompass almost anything.
There is no express exception in the definition of "structure" which excludes from it roads, drives, and ways. A road or driveway, however, also fits, at least facially, within the expansive reading of the word "structure" for which the Town advocates. Even the simplest dirt road is a combination of materials-various types of earth, sand and gravel, for example-which are assembled at a fixed location. A dirt road provides support for the passage of vehicles and foot traffic. The definition of "structure," however, cannot be read so broadly as to encompass a drive or way. It would yield an absurd result for the court to rely on the absence, from the definition of "structure," of any exception for roads and ways, to read the bylaw to prohibit a road or driveway within thirty feet of a lot line. Such a reading would make it impossible for roads or driveways to go anywhere useful; they would need to be kept thirty feet clear of roads adjoining the lot, even though the obvious function of such a road or drive is to allow passage to and from those adjoining roads. Such a result cannot be the contemplation the bylaw.
And if the definition of "structure" was not intended by the Town's legislative body to include roads and drives which afford vehicular access to the buildings on the lot, the court needs to consider whether the same road, underlaid with a concrete or metal culvert, was intended to constitute a "structure." The court concludes that the presence of an underground culvert beneath an interior drive or way does not render it a "structure" within the meaning of the bylaw, and does not subject the drive to the zoning bylaw's setback requirements.
The court finds guidance in the exclusion, from the definition of structure, of walls and fences less than six feet tall. The inclusion of walls and fences over six feet tall speaks to an important purpose underlying a setback requirement, namely, to create distance between things that have height, are as a result visible, and which may rise above or even loom over a property. These concerns are not implicated in a subsurface pipe, culvert, or other drainage facility. Here, the culverts underlying the road would be largely invisible, hidden beneath its earthen surface. They would not loom over the neighboring property, as would a six-foot high fence or wall.
The same analysis readily applies to the alternative proposal to use a bridge, rather than culverts, to address the intermittent stream and let a driveway get across it. The record shows adequately enough that, like the culverts, the elements of the rude "bridge" envisioned here would be to a great degree contained within fill material, and concealed from visibility from any distance. The bridge would have minor height and bulk, and would appear, once the work is done, as a surface level driveway system.
Indeed, the culverts and the bridge are best understood as elements of the road or driveway used to serve the house, integrated into, and forming an essential part of, the driveway itself. Gorda's purpose is only to employ the culvert or bridge to facilitate a legal and usable driveway to get vehicles at surface level into and out of the planned house lot. The culverts or the bridge are part of the driveway, they have no meaningful independent use apart from the driveway, and their inclusion in a road design should not trigger the application of the thirty-foot setback where it otherwise would not apply.
This is not to say that a bridge or culvert system could never be considered a structure under the bylaw. The court can easily imagine a bridge with a looming superstructure rising above the surrounding elevation, or some decorative bridge not integrated into a road design, and not kept at or close to the level of the surrounding terrain, which would properly fit the bylaw's definition of a structure. The systems in this case, however, do not implicate such concerns, and do not fall within that definition.
The court concludes that Lot 232 lacks frontage for zoning purposes. The court need not resolve at great length the question whether, and under what authority, the 2011 purported regulation of frontage (and new definition of "frontage" in section 7.1) have been added to the zoning bylaw or DCPC regulations, because, either way, under any reasonable use of the term in the zoning context under the bylaw, Gorda's plan for Lot 232 is lacking. Said another way, leaving out of the analysis the frontage definition added into Section 7.1 in 2011, and the revision to Sections 3.7 and 13.4-10 to allow private ways to supply frontage (all amendments disapproved by the Attorney General), and resorting simply to the previous iteration of the frontage requirement, set out in the pre-amendment version of Section 3.7, what Gorda proposes to do does not satisfy that requirement. The same result would obtain even had those amendments been validly enacted. Given that the validity or not of the 2011 amendments would not alter the court's decision, the resolution of that question is not essential to the court's rulings in this Order and need not be reached in it by the court in a binding way.
Section 3.7, as in place prior to the 2011 bylaw changes, mandates that "[a]ll lots shall have a minimum frontage of 200 feet on a public way." The disapproved 2011 bylaw amendment of this section would have added an alternative also allowing the requisite 200 feet to be on a private way, and implementing a parallel change in the DCPC section, 13.4-10. Additionally, the 2011 amendments would have inserted a Section 7.1 definition of frontage: "The boundary of a lot running along a private or public way, but not along a common driveway, which contains at least one point of vehicular access to the lot at a location providing safe and adequate sight distance."
There can be no question that, without the addition of the 2011 amendments, the single bylaw frontage regulation set out in Section 3.7 cannot be met by the Gorda project. There is no reasonable view of the record that would support a conclusion that Lot 232 has frontage along a public way. The nearest public way is far off in the distance-Moshup Trail. But even if the 2011 amendments somehow entered the calculus, and the bylaw's frontage requirement could be satisfied by a lot fronting on a private way, Gorda's plans still come up short. This is so because the meaning and purpose of the frontage requirement of the bylaw is not in any reasonable way served by the layout set out in Gorda's plans.
"[T]he purpose of a frontage requirement is to make certain that each lot may be reached by the fire department, police department, and other agencies charged with the responsibility of protecting the public peace, safety and welfare." Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 808 (1978). In Shea v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519 (1993), further appellate review denied, 416 Mass. 1109 (1993), the Appeals Court upheld the decision of the building commissioner to deny a building permit for a lot shown on an ANR plan as having frontage on a way, called Rockville Avenue, which was never constructed and existed only as a path "not suitable . . . for vehicle travel." 35 Mass. App. Ct. at 522. The Shea court held that "[a] zoning by-law which requires frontage on a way shown on an approved plan must be understood, if the purpose of the by-law is not to be undermined, to require an actual way, constructed on the ground, not just a depiction of a way on a plan," reasoning that "[a] fire truck cannot drive on a plan." 35 Mass. App. Ct. at 524 (emphasis in original). The subject way, Rockville Avenue, was depicted on the ANR plan as being forty-feet wide. Id.
Here, Gorda's proposed satisfaction of the frontage requirement is no less unsatisfying. All that exists for frontage is a line on a plan. The forty-foot wide strip relied upon by Gorda to supply its "frontage" is a purely internal concoction. It is not even a laid-out easement, because this strip lies on land the fee ownership of which is in Gorda alone, and the strip serves and benefits only Gorda's land. See Cheever v. Graves, 32 Mass. App. Ct. 601 , 606 (1992): "An owner cannot [create] an easement in its own estate in fee." The claimed frontage does not exist in fact as a traveled way, and does not link up with any road network providing actual access to other property.
Although shown on Gorda's 2011 plan as "40 foot wide private way," it is not that. [Note 18] Under any reasonable interpretation, Gorda's proposed way is a "driveway." A driveway is a "private road that connects a house, garage, or other building with the street." American Heritage College Dictionary (4th ed. 2002); see also Oxford English Dictionary, (2d ed. 1989) ("private carriageway for a motor vehicle alongside, in front of, or leading to a house, garage, or other building"). The only genuine use for Gorda's "way" is allow vehicular movement within the interior of Lot 232. The way does not go anywhere else, and would not be used by anyone other than the occupants of Lot 232 and their guests. See Royer v. Zoning Bd. of Appeals of Middleton, 18 LCR 202 , 204-205 (2010)(Piper, J.). Gorda itself characterized its proposal as for construction of a "10 ft wide driveway" over the currently unconstructed length of the easement area coming up to Gorda's land. If that stretch is concededly a "driveway," the only reasonable inference is that the continuation of that route in, once it enters and travels around the interior of Gorda's own land, is nothing but a driveway.
Viewed for what it really is, the "frontage" on which Gorda's project depends does not qualify as frontage. The only reasonable inference is that Gorda has carved into its land, Lot 232, a depiction of a strip which it drew with length sufficient to reach the bylaw's 200 foot minimum. But although this on paper shows 200 feet, it is not 200 feet of frontage. Gorda's approach satisfies the frontage requirement only in a technical sense, while Gorda contends that the purpose of the requirement is met. "The court is unable to adopt this view. The plaintiff[s'] argument presumes that frontage along a street is nothing but a mere metric-the arithmetic count of feet and inches a given lot has along the side of a street. This is too simplistic an analysis. The court is convinced that the ... Town Meeting, in changing the municipal zoning law to insist that each lot have an actual frontage on a street, was concerned about more than measurement." Bosworth v. Milton Planning Bd., 16 LCR 686 , 689 (2008)(Piper, J.).
If the plan Gorda developed were found to meet the zoning law's frontage requirement, that would mean that many landowners, with lots which simply do not have 200 feet alongside a way, would be able nevertheless to earn building permits, by snaking internal driveways within the interior of their lots, conveniently calling them "ways," either public or private. That result would rewrite the bylaw's frontage requirement into meaninglessness.
Gorda's insurmountable problem is that without the challenged 2011 amendments, the requirement for frontage has to be met with frontage along a public way, something impossible to achieve. Even if the 2011 amendments were considered, they bring with them the new definition of "frontage," which makes plain that driveways fail to supply legal frontage, leaving the Gorda approach, which at best employs a driveway, lacking for that reason. [Note 19], [Note 20]
Gorda's argument that the same "frontage" the Town rejects for Lot 232 has been deemed adequate for neighboring lots does have some surface appeal. Examination of the record materials regarding these other lots, however, does not support an interpretation of "frontage" that would help Gorda. Instead, it suggests that the prior approvals by local boards or officials may have been given improvidently. The court cannot order the Town to allow Gorda to build its proposed house on Lot 232 because, earlier in time, others successfully got permission to build using the same or similar arrangements to meet, unjustifiably, the bylaw's frontage requirements. The fact that one house got built when it should not have, does not authorize all who later request the same opportunity to build to do so. If that were not true, a municipality, having once blundered, would not again be able to insist that its zoning law be followed.
On the issue of "frontage," this is not a case where the bylaw suffers from inscrutability, and lends itself, as a legal matter, to multiple plausible interpretations. If this were that kind of case, then proof of a pattern, by the boards and other officials in the town, of following one of the possible interpretations would be proper, and a litigant could show why their interpretation jived with what the town long had done when applying the contested provision. Where, however, as here, the bylaw as a legal matter simply does not support an interpretation for which a party advocates, no volume of practice in the municipality consistent with that interpretation can give it the force of law.
The court concludes, as matter of law and without there being any material fact in dispute, that the plan Gorda presented did not show a lot with the frontage required by the municipal zoning law. Faced with this substantial and intractable deficiency, the Plan Review Committee's decision to deny the requested special permit was the right one, and the court will uphold it.
3. Validity of Article XIII
The remaining issue argued in the plaintiffs' motion for summary judgment is that the DCPC regulations appearing in Article XIII of the zoning bylaw are not valid. By this, the court understands Gorda to be pressing not an independent facial attack on the validity of Article XIII, but instead, a challenge to a specific decision made by the Plan Review Committee denying Gorda a special permit. The nature of that denial is very much in dispute. The municipal parties and the Commission contend that, unlike those in Section 3.9 of the zoning bylaw, the special permits required by Section 13.4 are discretionary. In other words, the defendants' position is that, because Article XIII is an enactment implemented at the direction of the Martha's Vineyard Commission, Section 13.4 vests the Plan Review Committee with a discretionary power of denial over any development in the Town, something that, as above discussed, could not be accomplished lawfully under conventional zoning. Having concluded, however, that the Section 3.9 special permit was properly denied based on the inadequate frontage presented by the Gorda plan, the court need not reach the interpretive question whether Section 13.4 in fact means what the defendants say it means, or the legal question whether the enactment of such a town-wide discretionary special permit regulation exceeds even the Commission's broad authority. The court has gone far enough to direct the entry of a judgment upholding the challenged decision of the Plan Review Committee.
ORDERED that, partial summary judgment having been granted on this issue, the judgment that will enter in these cases will adjudicate that the proposed bridge or culvert system is a not a "structure" subject to the thirty-foot setback requirements of the zoning bylaw. It is further
ORDERED that, partial summary judgment having been granted on this issue, the judgment that will enter in these cases will adjudicate that the plan accompanying plaintiffs' July 22, 2011 application for a special permit does not depict adequate frontage under the Aquinnah zoning bylaws, and for that reason, the decision of the Aquinnah Plan Review Committee dated December 6, 2011 and filed the next day with the Town Clerk is to be affirmed. It is further
ORDERED that, partial summary judgment having been granted on this issue, the judgment that will enter in these cases will adjudicate that Section 3.9 of the Aquinnah zoning bylaw is not unlawful under G.L. c. 40A, § 4 and SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984), because the "special permit" required is a non-discretionary site plan approval, not a discretionary special permit under G.L. c. 40A, § 9. It is further
ORDERED that, partial summary judgment having been granted on this issue, the judgment that will enter in these cases will adjudicate that plaintiff may not seek review of the 1999 designation by the Martha's Vineyard Commission of the Aquinnah DCPC, the April 2000 determination of conformance by the Commission, or the Town's adoption of DCPC regulations on May 23, 2000; these claims are foreclosed as a matter of law. It is further
ORDERED that the court makes no ruling on the remaining issues as to which the parties may have requested summary judgment, the court having determined they are not essential to deciding the issues, and rendering judgment, in these cases. It is further
ORDERED that the parties by their counsel are to confer, and by November 3, 2013, are to file with the court, jointly or severally, written statements of their collective or respective positions on what issues, if any, that were by stipulation reserved until after the court's rulings in this Order, remain for resolution by the court in cases 12 MISC 471266, and 12 MISC 473899, and the manner in which the court ought proceed to resolve those issues, if necessary, and to dispose of these cases.
[Note 1] Excluding "the Indian Common Lands (generally known as the Cranberry Bogs, the Clay Cliffs and Herring Creek) and [Massachusetts Indian Land Claim] Settlement Lands."
[Note 2] As originally pleaded, the December 21 complaint contained the following counts: (I) an appeal of a decision of the Aquinnah Plan Review Committee pursuant to G.L. c. 40A, § 17; (II) a request for declaration under G.L. c. 231A whether certain drainage culverts are "structures" under Aquinnah zoning; (III) a request for declaration under G.L. c. 231A whether the Gorda lot satisfies the frontage requirements of the Aquinnah zoning bylaw; (IV) a request for declaration under G.L. c. 231A that section 13 of the Aquinnah zoning bylaw is invalid; (V) certiorari review (G.L. c. 249, § 4) of the adoption and implementation of section 13 of the zoning bylaw; (VI) that a taking had occurred in violation of article 10 of the Massachusetts Declaration of Rights, and the Fifth and Fourteenth Amendments to the United States Constitution; (VII) damages for a taking pursuant to G.L. c. 79; and (VIII) damages pursuant to 42 U.S.C. § 1983.
[Note 3] See Miller v. Kitras, Land Court Miscellaneous Case No. 12 MISC 459809 (GHP) (filed Feb. 27, 2012), which case has been stayed pending the outcome of the instant litigation.
[Note 4] The court's ruling, as reflected on the docket, reads: "After Argument, For the Reasons Expressed from the Bench, the Court Rules as Follows: (1) Land Court Lacks Subject MatterJurisdiction Over Those Counts in Verified Complaint Seeking Damages Pursuant to G.L. c. 79 (Count VII), and Damages Pursuant to 42 U.S.C. § 1983 (Count VIII); Accordingly Count VII and Count VIII Are DISMISSED Without Prejudice to Filing an Action in Court of Competent Jurisdiction. (2) To Extent Court Is Required, In Reviewing Decision of Local Plan Review Committee, to Consider Whether Decision Proceeded on Legally Untenable Ground by Basing Decision on an Invalid Regulation, Court Concludes That Lies Within Land Court Jurisdiction Pursuant to G.L. c. 40A, § 17, Notwithstanding Such Regulation Was Adopted by Municipality Pursuant to Martha's Vineyard Commission Act, Not Zoning Act. (3) Nevertheless, to Dispel Any Concern, Court Would Support Designation by Chief Justice for Administration and Management of Land Court Justice to Whom this Case Is Assigned (Piper, J.) to Sit as Superior Court Justice for Limited Purpose of Making Determinations About Any Regulations Promulgated by Municipality Pursuant to Martha's Vineyard Commission Act. Court Would Not Support Designation as to Other Counts, Including Those Dismissed Under Mass. R. Civ. P. 12 (b) (1) Because That Would Expand Greatly Issues In and Complexity of Case, and Might Lead to Case Triable by Jury. (4) Court DENIED Motion to Amend Complaint to Add Count Seeking Declaration Under G.L. c. 240, § 14A. While There Is, as Here, a Pending G.L. c. 40A, § 17 Appeal that Depends for its Success on Determining Validity of Bylaw, a Parallel Count Under G.L. c. 240, § 14A Is Not Appropriate. See Whitinsville Retirement Soc'y v. Town of Northbridge, 394 Mass. 757 , 763 (1985). Section 17 of G.L. c. 40A Provides a Complete and Exclusive Remedy. As Additional Ground for Denying Motion to Amend, G.L. c. 240, § 14A May Not Be Used to Challenge Regulation of Martha's Vineyard Commission Because Commission Acts to Preserve Statewide Interests and G.L. c. 240, § 14A Is Exclusively a Mechanism to Challenge Local Bylaws and Ordinances. See Bullen v. Velarde, 17 LCR 403 , 405 (2009) (Misc. Case No. 356078) (Piper, J.), 2009 WL 1843616, at *5. (5) Court Is Persuaded Martha's Vineyard Commission Is Necessary Party to this Action. Commission Has Stake in Outcome of this Case Because Plaintiffs' Success in this Litigation Depends In Large Part on Court Determining Regulations Enacted by Municipality Pursuant to Commission's District of Critical Planning Concern Are Invalid. Plaintiff Directed to Amend Complaint by April 9, 2012, to Add Martha's Vineyard Commission as Party Defendant, and to Serve Amended Complaint on All Defendants."
[Note 5] The amended complaint contained the following counts: (I) an appeal of a decision of the Aquinnah Plan Review Committee pursuant to G.L. c. 40A, § 17; (II) a request for declaration under G.L. c. 231A whether certain drainage culverts are "structures" under Aquinnah zoning; (III) a request for declaration under G.L. c. 231A whether the Gorda lot satisfies the frontage requirements of the Aquinnah zoning bylaw; (IV) a request for declaration under G.L. c. 231A that section 13 of the zoning bylaw is invalid; and (V) certiorari review (G.L. c. 249, § 4) of the town's adoption of section 13, and of the Commission's determination that section 13 conformed with its DCPC.
[Note 6] Counts IV and V of the amended complaint were transferred to the Dukes County Superior Court Department by Order of Assignment issued by the Chief Justice for Administration and Management on April 23, 2012. Gorda commenced an action in the Dukes County Superior Court Department on April 24, 2012, which was consolidated with the then-pending Land Court case. The Order of Assignment further authorized the Land Court Justice to whom this case had been assigned to sit simultaneously as a Justice of the Superior Court Department for the purpose of hearing all counts in both consolidated cases.
[Note 7] The court offered the parties, but did not require, the opportunity to submit supplemental legal memoranda addressing (1) whether a local board reviewing a site plan is privileged or required to turn down a plan based on an objective failure to comply with some aspect of the zoning laws, and (2) whether certain 2011 amendments to the frontage requirements were adopted by the Town pursuant to G.L. c. 40A, § 5, or enacted under the authority of the Martha's Vineyard Commission. The municipal parties and Gorda both opted to file supplemental memoranda.
[Note 8] Kitras v. Zoning Bd. of Appeals of Aquinnah, Land Court Miscellaneous Case No. 12 MISC 471266 (GHP).
[Note 9] The court's approval read: "Upon review of the Stipulation filed November 28, 2012 in Case No. 12 MISC 471266, the Stipulation is APPROVED; this case is now CONSOLIDATED with Land Court Case No. 11 MISC. 457158 (GHP), and Civil Action No. DUCV2012-00029 (GHP). Consistent with the terms of the Stipulation, Plaintiffs promptly to file amended complaint, and to commence in the Superior Court for the County of Dukes County, an action for the purpose of adjudicating claims against the Martha's Vineyard Commission. Once commenced, parties to request of the Chief Justice of the Trial Court a transfer of that case to Land Court Department, and designation of the Land Court Justice to whom the instant case is assigned (Piper, J.) to sit as Justice of the Superior Court, see G. L. c. 211B, § 9, for purposes of hearing the newly filed action."
[Note 10] Kitras v. Planning Bd. of Aquinnah, Land Court Miscellaneous Case No. 12 MISC 473899 (GHP).
[Note 11] All other issues in these cases have been preserved or dismissed pursuant to the parties' February 1, 2013 stipulation.
[Note 12] The municipal parties' claim in its cross motion for summary judgment that Gorda may not challenge the validity of the 2011 amendments appears to be moot in light of the disapproval by the Attorney General's office.
[Note 13] Similarly, it would seem anomalous if a request for declaratory judgment under G.L. c. 231A would be allowed to circumvent the legislature's choice to provide no right of judicial review from a DCPC designation, particularly in light of the unavailability of G. L. c. 240, § 14A, a statute which is both more narrowly tailored to reviewing land use regulations, and more open to judicial review even in the absence of firm development plans.
[Note 14] The Land Court's decision in Bullen v. Velarde, supra, does not contain any contrary holding. The decision in Bullen v. Velarde was an appeal following administrative review, pursuant to G.L. c. 40A, § 8, by the zoning board of the building inspector's refusal to revoke a building permit. 17 LCR at 403, 2009 WL 1843616 at *1. The building inspector's determination involved a board of health permit, where the board of health acted exclusively pursuant to a DCPC regulation of the Martha's Vineyard Commission inserted into the local zoning bylaw. Id. at 405, *5. The court held that there is no right to use G.L. c. 40A, § 8-and thus, following review by the local zoning board, G.L. c. 40A, § 17-to seek judicial review of a building inspector's actions when he or she is not acting pursuant to any local zoning law. 17 LCR at 405-06, 2009 WL 1843616 at *5-6. In contrast, the instant case involves the straight application of special permit or site plan criteria by a local permit granting authority which has turned down a requested permit.
[Note 15] The exceptions are section 3.9-2 (A)(3), which reads: "In open/highly visible areas, if the slope of the natural grade allows a basement to be exposed above finished grade the project must be designed or landscaped so that the basement level is not visible from public places[,]" and section 3.9-3 (A) (2): "Roofing materials shall be neutral asphalt, aggregate or cedar shingles." Emphasis supplied.
[Note 16] As an alternative, the site planning authority might issue its approval conditioned on obtaining a zoning variance or other approval to solve the problem, particularly if the site planning review board thought getting that approval was a perfunctory (or at least likely) matter. It is evident in the case now before this court, however, that the Plan Review Committee, saw little if any prospect of solving the frontage and setback difficulties they identified in Gorda's plan.
[Note 17] The court is mindful that ordinarily, local board decisions on non-discretionary site plan applications are not directly reviewable in the courts, see Dufault, supra, 49 Mass. App. Ct. 137 , 140-142. But here, those sequencing concerns are addressed adequately. The court has before it a set of matryoshka doll lawsuits, nesting within each other, with further litigation commenced (among many other reasons) to resolve the concern that the judicial appeal directly from the Plan Review Committee's decision denying what is a site planning special permit, might not have been ripe when brought. Gorda's unsuccessful approach to the building inspector after the site planning decision, followed by Gorda's administrative appeal to the local zoning board (resulting in its upholding the inspector), and the ensuing judicial appeal to this court, remove any ripeness issue.
[Note 18] The Town aptly adds that Gorda does not have the necessary special permit to construct a "private way" on Lot 232. Section 3.9-1 (A) (2) requires site plan approval for all "[r]oads, curbcuts, driveways, [and] vehicular paths[.]" Section 13.4-1 (A) (2) requires a special permit for "[r]oads, curbcuts, driveways, [and] vehicular paths[.]"
[Note 19] It is true that the Section 7.1 frontage definition of the challenged 2011 amendments say that "frontage" is the "boundary" of a lot "running along" a way, public or private. Gorda seizes on these definitional refinements, sought to be added to the bylaw, to ask the court to infer that, without those new words added to it, the bylaw contemplates that frontage may be supplied elsewhere on a lot than at its boundary, and without running along a way. That requested reading, as the court explains in this section of this Order, is one antithetical to the very concept of frontage in land use regulations. The reading sought by Gorda, that zoning frontage might exist by virtue of a route, drawn by an owner, meandering through its own land, is not a tenable one, even under the bylaw as it exists without the 2011 Section 7.1 amendment language.
[Note 20] The new definition of frontage attempted to be added in 2011 expressly excludes "a common driveway" as something being capable of supplying frontage. It is far from clear whether this addition, had it taken effect, and had it applied to the frontage requirements imposed by amendments to the DCPC regulations, would have come with the so-called "grandfathering" protections of G.L. c. 40A, § 6, which do not apply to limit regulations adopted pursuant to a DCPC, see Island Properties, Inc. v. Martha's Vineyard Comm'n, 372 Mass. 216 (1977).