SIDNEY BOURNE and RITA BOURNE v. ELIZABETH QUIRK, JONATHAN GOSSELS, JONATHAN O'BRIEN, STEPHEN GARANIN and JEFFREY KLOFFT as members of the Sudbury Zoning Board of Appeals. WILLIAM KELLER JR., LAWRENCE O'BRIEN and JOHN DROBINSKI as members of the Sudbury Board of Selectmen, NORTHWOOD AT SUDBURY CONDOMINIUM TRUST, NORTHWOOD PROPERTIES LLC, FIRST COLONY DEVELOPMENT CORPORATION, FIRST COLONY NORTHWOOD LLC, and JON PRISCOLI individually and as President of First Colony Development Corporation and Manager of First Colony Northwood LLC.

Introduction

The above-captioned cases involve the Northwood at Sudbury Condominium (hereafter, “Northwood”) and, at this stage in the litigation (after the remand directed by my July 8, 2014 Decision), the question of precisely what facilities and services Northwood must provide to qualify as a “Residential Care Facility” under the Sudbury zoning bylaw, and thus be an allowable use in its zoning district (the Research District). The history of these cases is a long one, having occasioned two appeals to the Sudbury ZBA (and from there to this court), numerous decisions of the Sudbury Board of Selectmen and Sudbury building inspector, and a prior decision of this court determining certain issues and remanding to the ZBA the question of what the bylaw requires of a Residential Care Facility -- a term that is defined in the bylaw, but only with reference to terms that are not themselves specifically defined (here, “independent living arrangements”). [Note 1]

On remand, the ZBA determined that the bylaw required the facilities and services set forth in the Board of Selectmen’s 1997 site plan approval of the Northwood development, with two exceptions. These exceptions were: (1) the ZBA’s determination that the bylaw did not require provision of an indoor swimming pool, and (2) its modification of the requirements as to transportation and in-home cleaning services for residents. After the ZBA issued its remand decision, the plaintiffs amended their pleadings to appeal that decision, objecting to the exceptions applied by the ZBA and arguing that the bylaw also had certain additional requirements suggested by their expert witness (Christopher Wise) at trial that had not previously been imposed by the Selectmen’s 1997 site plan approval.

At a November 18, 2014 status conference, the parties agreed that these issues should be determined solely on the basis of the evidence from the initial trial, their post-remand memoranda, and oral arguments, with no further testimony needed. Having considered those memoranda and arguments, as well as the evidence previously admitted at trial, for the reasons set forth below, the ZBA’s remand decision is hereby AFFIRMED in all respects.

Facts

In 1997, the Conant-Welch Group (the original developer of the Northwood development) applied to the Sudbury Board of Selectmen for site plan approval to construct Northwood as a “Residential Care Facility”. [Note 2] By decision dated November 14, 1997, the Selectmen granted site plan approval for Northwood, conditioned on 100% occupancy by persons aged fifty-five and older (excepting spouses), as well as the construction and maintenance of numerous specified on-site facilities, and the continuing provision of numerous specified residential care services. In relevant part, these conditions were as follows:

Condition 22B. The following language shall be inserted in the Condominium Master Deed:

Residential Care Facility. Northwood at Sudbury is a residential care facility and shall provide a continuum of home health services and residential care to any Qualified Resident to enable such a resident to remain in his or her Unit for as long as possible without having to move to another facility in order to obtain a required level of care.

A continuum of residential care services will be provided by contract with recognized care providers, which will be designated as preferred providers, and which, by contract commitment, will be required to provide on an as-needed and as-requested basis, to Qualified Residents:

A) home health services for independent Qualified Residents,

B) skilled services for Qualified Residents requiring temporary respite care, and

C) specialized on-going services to the more medically fragile Qualified Residents.

D) provide for in-house Health Care Coordinator

To this end, Northwood at Sudbury shall at all times provide to Qualified Residents the following:

A. As part of the Common Area and Maintenance Fees of the Condominium:

1) Each Unit in Northwood at Sudbury a) shall be equipped for installation of grab bars which shall be installed (and removed) on an as-needed and as-requested basis for a Qualified Resident and b) shall have doorway dimensions large enough to accommodate wheelchairs and walkers;

2) An activities building which will contain the following:

Exercise and Fitness Room

Swimming Pool

Greenhouse and Garden Area

Kitchen and Dining Areas

Library and Lounge

Convenience Store

Meeting and Craft Rooms

Administrative Offices

Nurses Offices and Wellness Clinic

3) An Emergency Response System installed and operating in each Unit in the Condominium together with a 24 hour a day, 7 days a week monitoring of the Emergency Response System;

4) Local transportation of Qualified Residents and their Guests for shopping, for doctor’s appointments, and for attendance at social, charitable, and religious gatherings; and

5) Weekly housekeeping services.

B. As an addition to and not included in the Common Area Maintenance Fees of the Condominium:

1) An arrangement with a preferred, independent living, health-care provider (initially expected to be Parmenter Health Services, Inc.) having a contract commitment to staff delivery, on site and on an as-needed and as-requested basis, to Qualified Residents, of a) independent living services (such as, but not limited to, fitness programs, wellness clinics, and homemaker services), b) assisted living services (such as, but not limited to, personal care attendants, companion service, and meal preparation), and c) skilled services (such as, but not limited to, nursing, physical, therapy, and home health aid services), all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.

2) An arrangement with a preferred, assisted living, health-care provider (initially expected to be New Horizons at Madonna Hall, Marlborough), having a contract commitment to accept, on an as-needed and as-requested basis, Qualified Residents for off site assisted living services and Alzheimer’s care, and through such provider’s preferred provider (initially expected to be Wingate at Sudbury) or by separate contract with another provider, a contract commitment to accept, on an as-needed and as-requested basis, Qualified Residents for off site skilled nursing services, all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.

Amendment. The provisions of this section shall not be amended or revoked unless any amendment or renovation has been approved in a writing executed by the majority of the Board of Selectmen of the Town of Sudbury [or,] without any such approval by the Town of Sudbury, these provisions may be amended by the Unit Owners, as otherwise provided herein, to mandate that Northwood at Sudbury provide additional facilities, services or arrangements to increase the number of services and facilities provided as a residential care facility or to arrange to have such existing or expanded services performed or provided for directly by the Condominium rather than by contract with preferred providers.

Sudbury Bd. of Selectmen, Site Plan Decision (Nov. 14, 1997) (hereafter, “1997 Site Plan Decision”) at 18-19. No appeal [Note 3] was taken from this decision, and the conditions imposed were inserted into Northwood’s master deed at Section 6(B)1-3. Plaintiffs Sidney and Rita Bourne purchased their unit soon after.

Years later, after the project’s development rights had changed hands, the new developer (Castagna Construction Corp.) and the condominium trustees sought to modify those conditions by, among other things, (1) eliminating the requirement that all units be occupied by persons aged fifty-five and above, and (2) substantially modifying the conditions as to mandatory on-site facility and care requirements, leaving it to the condominium’s board of trustees to determine what facilities and care would be provided. [Note 4] The Selectmen approved these modifications. With respect to required services and amenities, the Selectmen gave no guidance as to what the bylaw’s definition of “Residential Care Facility” required, except for the suggestion that: (1) mere “coordination” of services might suffice (without explaining how that should take place, or requiring any aspect of that coordination, or any of the services themselves, to be on-site), and (2) the non-exclusive designation of one room in the entire complex as available for visiting nurses, therapists and other medical personnel to examine and consult with unit owners, might be the only on-site space necessary for the development to qualify as a Residential Care Facility. See generally Sudbury Bd. of Selectmen, Site Plan Modification Notice of Decision (Mar. 25, 2010). The Bournes and other residents appealed that decision to the ZBA, which affirmed the Selectmen. See generally Sudbury Zoning Bd. of App., Notice of Decision (Jul. 2, 2010). The Bournes then appealed that affirmance to this court (Case No. 10 MISC. 434334 (KCL)). [Note 5]

By Decision and Judgment dated July 8, 2014, I vacated the portion of the ZBA’s July 2, 2010 decision (appealed in Case No. 10 MISC. 434334 (KCL)) that purported to reduce the requirement that the Northwood condominium project be limited to residents aged fifty-five and above (excepting residents’ spouses) and remanded the cases to the ZBA for a determination of what facilities and/or services must be provided at the Northwood development in order for it to qualify as a Residential Care Facility under Section 7000 of the bylaw. See Decision (July 8, 2014) (10 MISC 434334 (KCL) & 12 MISC 465978 (KCL)) at 25. [Note 6]

On remand, the ZBA held a public hearing on these cases, after which it issued a decision dated October 29, 2014, ruling unanimously as follows:

MOTION: The minimum services and on-site facilities necessary for independent living arrangements at the residential care facility known and operated as the Northwood at Sudbury, as defined by the Sudbury Board of Selectmen in a Site Plan decision dated November 14, 1997 [the 1997 Site Plan Decision], are hereby reaffirmed and shall apply to the Northwood at Sudbury with the following amendments:

1) The requirement that a swimming pool be constructed and maintained on the premises shall be deleted as a minimum on-site facility;

2) Transportation shall be a required service on a fully subsidized basis, to be provided by standing, written arrangement with a local livery, transport, taxi or other service for local transportation, for a minimum of two (2) hours per day, Monday through Friday, with the exception of Federal and State holidays; and

3) Housekeeping services shall be offered as an on-site service, on an opt-in pay for services basis only.

Bd. of App. of the Town of Sudbury, Notice of Decision (Oct. 29, 2014) (hereafter, “ZBA Decision”) at 1. [Note 7] As the ZBA explained in its statement of reasons:

In reaching its decisions as set forth above, the Board determined that the conditions set forth in the [1997 Site Plan Decision] generally constituted an appropriate definition of minimum care requirements under the applicable bylaw, with the exception of the swimming pool. The Board noted with approval the Land Court’s generally positive reference to the [1997 Site Plan Decision], as well as the fact that the [1997 Site Plan Decision] contained all the material elements of the Northwood project as described to prospective buyers, including but not limited to Mr. Sidney Bourne. The Board was cognizant of the tremendous amount of work and deliberation which went had gone [sic] into the [1997 Site Plan Decision]. The Board was also mindful of wanting to adopt a definition of minimum care requirements which fairly and fully meets the original intent and purpose of the bylaw, and the legitimate expectations of purchasers such as Mr. Bourne, while also (hopefully) allowing the Northwood development to finally complete development and move forward towards the long term financial stability which all parties, residents, and citizens want and deserve.

Id. at 9. With the exception of the swimming pool, [Note 8] transportation services, [Note 9] and in-home cleaning services [Note 10] (as to each of which the ZBA issued specific statements of reasons), the ZBA found that “[t]he remainder of the minimum care requirements as set forth in the [1997 Site Plan Decision] . . . constitute minimum care requirements within the meaning of the bylaw.” Id.

Discussion

In these G.L. c. 40A, § 17 appeals, the only remaining issue for adjudication is whether the ZBA correctly interpreted Bylaw §7000 in terms of what facilities and services must be provided for a development to qualify as a “Residential Care Facility” under that section. While an incorrect interpretation must be disregarded by the court, deference is given to the local board’s reasonable interpretation of its own zoning bylaw based upon its “special knowledge of the history and purpose of its town's zoning by-law.” Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of App. of Billerica, 454 Mass. 374 , 381 (2009) (internal quotation omitted); see also Shirley Wayside Ltd. P’ship v. Bd. of App. of Shirley, 461 Mass. 469 , 475 (2012); Britton v. Zoning Bd. of App. of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (the court owes a “highly deferential bow to local control”).

As noted above, Bylaw §7000 defines a Residential Care Facility as one providing “assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings.” Id. (emphasis added). What this means is determined according to ordinary principles of statutory construction. See Shirley Wayside, 461 Mass. at 477. Thus, I look to the statutory language of this bylaw as the principal source of insight into legislative intent and, if its meaning is plain and unambiguous, I will enforce it “according to its plain wording unless a literal construction would yield an absurd or unworkable result[,] . . . giv[ing] effect to all its provisions so that no part will be inoperative or superfluous.” Id. (internal citations omitted).

The plain language of the bylaw makes two things clear at the outset: (1) Residential Care Facilities must have dedicated spaces, on-site, that distinguish them from ordinary condominiums (making them residential care facilities), and (2) the care services required by the bylaw to enable true “independent living” by senior residents must be provided, at least in part, in one or more buildings in that facility. [Note 11] The question that remains is what facilities and services are required for “independent living arrangements,” and how they must be provided. [Note 12] The ZBA has ruled on these questions on remand. That bylaw interpretation is now before me for review.

As discussed above, in its remand decision, the ZBA determined that the conditions previously imposed by the Selectmen in the 1997 Site Plan Decision “generally constituted an appropriate definition of minimum care requirements under the applicable bylaw” (ZBA Decision at 9), subject to three modifications: (1) elimination of the swimming pool, (2) specification of the minimum hours during which transportation services for services are to be provided, and (3) clarification that in-unit cleaning services would be provided on an opt-in, owner-paid basis, rather than being provided for all residents and included in monthly condominium fees. See id.

I find and rule that the conditions imposed by the Selectmen represent a well-reasoned, thorough set of requirements intended to ensure that Residential Care Facilities providing independent living solutions for seniors have the necessary services and facilities on site to enable residents to maintain their independence, while at the same time ensuring that the necessary support (be it social, medical, recreational, transportational, etc.) for residents is provided. It is thus a reasonable interpretation of the bylaw, and is well within the measure of deference the ZBA is due. See Wendy's, 454 Mass. at 381 (local zoning board has special knowledge of the history and purpose of its bylaw). The services and facilities required satisfy the reasonable needs of senior residents, and the Selectmen’s requirements further allow for amendments to required conditions, which affords a much-needed element of flexibility to adapt to changing times and needs. This power to amend is not without limits, as it specifically requires approval by the Selectmen for any change that would reduce the level of services.

As noted above, the plaintiffs bought their unit at the time the Selectmen’s 1997 Site Plan Decision was in place. They did so in reliance on the conditions imposed by that decision, and now urge that each of those conditions be re-imposed with additional conditions added. But it also must be said that the plaintiffs also had full knowledge and awareness that the conditions set forth in the 1997 Site Plan Decision were subject to the possibility of amendment, as set forth both in the 1997 Site Plan Decision and the Northwood master deed. As such, they could only reasonably rely on the bylaw’s minimum requirements. [Note 13] Moreover many of the things they request are beyond even what their own witness, Mr. Wise, recommended in his testimony.

First, with respect to the indoor swimming pool, Mr. Wise specifically testified that, in his opinion, a swimming pool was “[a] bonus”, not an essential part of a Residential Care Facility. See Trial Tr. at 126-127. I agree, and I find the ZBA’s discussion on this point to be eminently reasonable. It is true that “a pool may have been a nice feature”. ZBA Decision at 9. However, the ZBA’s primary task was to determine minimum requirements for Residential Care Facilities, and a pool simply does not “go to the core of independent senior living within the original meaning and intent of the bylaw.” Id. Further, maintaining a pool would represent “a significant expense”, which “was seriously out of favor with a majority of Northwood residents”. Id.

Next, with respect to transportation services, the ZBA merely applied a reasonable qualification to an otherwise unspecific requirement. The 1997 Site Plan Decision stated only as follows: “Local transportation of Qualified Residents and their Guests for shopping, for doctor’s appointments, and for attendance at social, charitable, and religious gatherings”. 1997 Site Plan Decision at 19. Here, not only has the ZBA applied a minimum standard to ensure that services do not drop below a specified level, it allows for Residential Care Facilities to actually provide more transportation services than the bare minimum. This, complemented by the ability to amend the Northwood master deed, ensures a minimum level of transportation services while at the same time providing flexibility to adapt to changing needs. Moreover, the discussion by the ZBA reaffirms the essential nature of this service, especially given the Northwood’s suburban location “with somewhat limited available public transportation services.” ZBA Decision at 9. [Note 14]

Finally, with respect to the provision of in-home cleaning services, as with transportation, all the ZBA did was to clarify an otherwise vague condition. The 1997 Site Plan Decision’s treatment of this condition is even vaguer than that of transportation services, stating only “Weekly housekeeping services”. 1997 Site Plan Decision at 19. Here, the ZBA appears to have gone farther than even Mr. Wise thought was necessary. Whereas Mr. Wise testified that only cleaning of common spaces was necessary (implying that “elect[ing]” to use in-home cleaning services was a mere convenience) (see Trial Tr. at 130), the ZBA found that “access to housekeeping services on an opt-in fee for services basis, in the event a resident does not have alternative solutions, appeared to the Board to be a minimum care requirement of healthy and enjoyable independent senior living.” 1997 Site Plan Decision at 19. I concur.

The ZBA’s reference here to a lack of “alternative solutions” speaks directly to the particular needs of residents of Residential Care Facilities, especially those catering to independent living solutions. Providing options in the face of such a lack of alternatives would seem to be exactly what is needed in order to enable seniors to enjoy independent living. Yet, specifying that such services would be an opt-in, fee-for-services option ensures that residents of differing abilities can elect to use those services only if needed and wanted, thus allowing the facility to keep costs down by not requiring that such services be available even to residents who, if given the choice, would prefer not to have them.

Turning lastly to the plaintiffs’ claim that the ZBA should have directed additional conditions that were not previously set forth in the 1997 Site Plan Decision, I find that this objection has no merit. As noted above, the Bournes purchased their unit with full knowledge of what was required of the Northwood development and what was not. They therefore had no reasonable expectation that an on-site resident assistant -- or anything else beyond the bylaw’s requirements (as now defined) -- would necessarily be provided. In any event, all that matters is that the required minimum services be provided. Nothing in the 1997 Site Plan Decision or the Northwood master deed prevents the creation of this position should it turn out to be logistically necessary. Likewise, nothing stops condominium residents from amending the master deed to specifically add a requirement that an on-site resident assistant position be created. This arrangement optimally ensures that Residential Care Facilities can adapt their specific arrangements for the provision of on-site services based on what works best for them. In all events, however, residents’ rights are protected by the bylaw-required minimum that, whether or not an on-site assistant is present, the services must be provided.

Conclusion

For the foregoing reasons, I find and rule that the ZBA Decision has covered all issues remanded, and that the ZBA’s interpretation of the bylaw’s requirements for Residential Care Facilities is both reasonable and well-articulated. Accordingly, I defer to that interpretation. See Wendy's, 454 Mass. at 381; Shirley Wayside, 461 Mass. at 475; Britton, 59 Mass. App. Ct. at 73. In the opinion of this court, the ZBA, on remand, adequately considered both the general services and amenities requirements that should apply to Residential Care Facilities under Section 7000 of the Sudbury bylaw, as well as how those requirements should be applied in this particular instance. To the extent the ZBA modified the previously-imposed requirements, those modifications were limited and well-reasoned. Accordingly, the ZBA’s remand decision is hereby AFFIRMED in all respects.

Judgment shall enter accordingly.

SO ORDERED.