JOHN R. HANLON v. THOMAS M. CARMODY as BUILDING COMMISSIONER and ZONING OFFICER of The Town of Sheffield; ERIC BLACKBURN, ERIC CARLSON, BART ELSBACH, WRAY GUNN, and ALLISON LASSOE, as They Are Members of the SHEFFIELD ZONING BOARD OF APPEALS; and TOWN OF SHEFFIELD.

This is an action pursuant to G. L. c. 40A, §17 and G. L. c. 240, §14A. The plaintiff, John R. Hanlon, Jr. (“Hanlon”) seeks a determination that the Town of Sheffield Board of Appeals (“Board”) erred in upholding a cease and desist order of the local building official ordering Hanlon to cease using a landing strip on his property. Hanlon further seeks a determination that, to the extent that the Town of Sheffield Zoning By-laws (the “Bylaw”) purport to prohibit the use of Hanlon’s property for the takeoff and landing of aircraft, the Bylaw is invalid. Although Count I is an appeal of the Board’s decision upholding the cease and desist order with respect to his landing strip, Hanlon has moved for summary judgment on Count II, under G. L. c, 240, § 14A, on the ground that a determination of invalidity of the Bylaw will be dispositive of the entire dispute. At oral argument, Hanlon, through his counsel, agreed that a decision with respect to Count II would be dispositive of Count I as well, and that there were no triable facts with respect to whether Hanlon’s use could be justified as an accessory use under the Bylaw.

Hanlon filed a motion for summary judgment on Count II, supported by the Affidavit of John R. Hanlon; the Affidavit of Christopher J. Willenborg, the Administrator of the Aeronautics Division of the Massachusetts Department of Transportation (“DOT”); an unverified (but not disputed) copy of the Bylaw; the Defendants’ responses to Requests for Admissions; and various correspondence from DOT and the Executive Office of Transportation. Hanlon also submitted, well after the time permitted, the affidavit of Tracy Williams Klay, chief aeronautics counsel for the Aeronautics Division of DOT. The court allowed the defendants’ motion to strike the affidavit on the grounds that it was not filed in compliance with Land Court Rule 4.

The defendants, the town of Sheffield, the Board, and the building inspector/zoning enforcement officer (collectively, the “Town”), filed an opposition to the motion for summary judgment, but did not file any affidavits in support of the opposition. Where the opposing party has failed to present, by affidavit or otherwise, facts contradicting the facts presented by the moving party, the court will accept as undisputed the facts as presented by the moving party for the purposes of the summary judgment motion. See O’Rourke v. Hunter, 446 Mass. 814 , 821- 822 (2006). Although the Town did not file a cross motion for summary judgment, “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56 (c),

FACTS

The following material facts are found in the Rule 56 record and are not in dispute for the purposes of this motion:

1. Hanlon owns and resides at 118 Galvin Farm Trail, Sheffield, Massachusetts (the “Property”).

2. The Property consists of approximately thirty-eight acres of land, improved by Hanlon’s residence and an unspecified number of “outbuildings suitable for storage of small airplanes.”

3. The Property also includes a hayfield, a portion of which has been mowed into a strip eighty feet wide by 1,250 feet long, used by Hanlon for takeoff and landing of airplanes. [Note 1]

4. Hanlon flies has, at least since 2006, owned and flown several airplanes from the Property.

5. Hanlon operates aircraft from the Property as a hobby, and not for commercial purposes.

6. In 2006, Hanlon registered the Property with the Federal Aviation Administration as a helipad.

7. In 2006, pursuant to G. L. c. 90, §39B, 4th para., Hanlon registered the Property as a Private Restricted Landing Area. (“PRLA”) with the Massachusetts Aeronautics Commission, now called the Aeronautics Division of the Massachusetts Department of Transportation (the “Commission”). See G. L. c. 90, §35(m).

8. Hanlon did not at any time seek, nor was he granted, any permits by the Town for the airfield or its appurtenances.

9. From 2006, until the issuance of the cease and desist order that is at issue in this case, Hanlon used the Property for takeoffs, landings, and parking of airplanes, and used the outbuildings on the Property for the storage of airplanes and a helicopter.

10. The Property at all relevant times has been located in a Rural District under the Bylaw. Section 3.1 of the Bylaw provides as follows:

No land shall be used and no structure shall be erected or used except as set forth in the following Table of Use Regulations, including the notes to the Table, or as otherwise set forth herein, or as exempted by MGL. Any structure or use of premises not herein expressly permitted is hereby prohibited.

11. “Single-family dwelling” is listed in the Table of Use Regulations as a use allowed as a matter of right in the Rural District. “Commercial airfield” is listed as a prohibited use in the rural district, but as permitted by special permit in the General Business District. There is no listing in the Table of Use Regulations for “non-commercial” or “private” airfield, either as a principal or accessory use.

12. The Town has never submitted the Bylaw to the Commission for approval.

13. By a letter dated November 15, 2011, defendant Thomas M. Carmody, the building commissioner and zoning enforcement officer for the Town of Sheffield, ordered Hanlon to cease and desist from using the Property as a PRLA. The order was based on the commissioner’s determination that the use of land for a PRLA was not listed in the Table of Use Regulations, and was therefore a prohibited use, and that a PRLA was not a valid accessory use to the principal residential use of the Property.

14. Hanlon appealed the cease and desist order to the Board, which held hearings on January 19, 2012, January 26, 2012, February 6, 2012 and February 28, 2012. The Board issued a written decision upholding the commissioner’s cease and desist order. The Board’s decision was filed with the town clerk on March 9, 2012. This action appealing the Board’s decision followed.

DISCUSSION

“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 may be 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).

There is no dispute regarding whether the use of the Property for the takeoff, landing, and storage of aircraft is prohibited as a principal use. The Bylaw states that uses are permitted only if they are listed as such in the Table of Use Regulations. Uses that are specifically listed in the Table of Use Regulations as prohibited, or which are not listed at all in the Table of Use Regulations, are prohibited. While the Bylaw lists “commercial airfield” as a use permitted by special permit in another district, there is no provision in the Bylaw for non-commercial or private airfields in any district. Accordingly, pursuant to Section 3.1 of the Bylaw, non- commercial or private airfield facilities are prohibited.

Hanlon rightly does not argue that his use of the Property as a PRLA is authorized as an accessory use to his principal residential use, conceding (at oral argument) that such an argument could not prevail. See Harvard v. Maxant, 360 Mass. 432 (1971) and Garabedian v. Westland, 59 Mass. App. Ct. 427 (2003). [Note 2] The Bylaw defines “accessory use” as follows:

A use related, but clearly customary, incidental and subordinate to the permitted principal use of the premises, which can take place within the principal structure or building on a single lot or parcel of land, or in an accessory structure or building, either attached or detached to the principal structure on the lot, including but not limited to a home occupation on a lot containing a single-family residence, or a subordinate use on a non-residential lot. The principal use shall not be subordinated to an accessory use, or accessory uses in their aggregate.

Hanlon’s use of the Property as a private airfield does not fit this definition. Hanlon has not offered any facts from which it may be concluded that an accessory private airfield is customary and incidental to single-family homes in the town of Sheffield. In fact, no evidence is offered that there are any other such private airfields in Sheffield, let alone that private accessory airfields could be considered common enough to be considered a “customary” and incidental use. “If the usage is rare, it is not customary.” Garabedian v. Westland, supra, 59 Mass. App. Ct. at 435. Thus, Hanlon has not presented any facts from which the court could conclude that the use of the PRLA is a valid accessory use pursuant to the holdings of Harvard and Garabedian.

Rather, Hanlon argues that the Town is prohibited from regulating the use of the Property as a PRLA because the Town has never submitted the Bylaw to the Commission for approval, a requirement that Hanlon argues is a condition precedent to any authority of the Town to regulate the use of the Property as a PRLA. Having failed to submit the Bylaw to the Commission, Hanlon argues, the Town may not use the Bylaw to prohibit or regulate use as a private, non-commercial airfield at the Property, or for that matter, anywhere in the Town. Hanlon’s argument is essentially that the statutory scheme preempts local regulation except at the discretion of the Commission. Hanlon bears a heavy burden in making a preemption argument. “The legislative intent to preclude local action must be clear.” Bloom v. Worcester, 363 Mass. 136 , 155 (1973). For the reasons stated below, I find that Hanlon has not met this burden, and hold that the right of the Town to regulate the use of the Property as a PRLA is not preempted by G. L. c. 90, §39B.

Sections 35-52 of G. L. c. 90 provide the general legislative scheme for development and regulation of airports in the Commonwealth. Section 40 of G. L. c. 90 sets forth the purpose of the Commission, in relevant part, as follows:

[T]he commission, shall foster air commerce and private flying within the commonwealth and for such purpose shall: (a) encourage the establishment of airports and air navigation facilities and the development of education in aeronautics; (b) make recommendations to the governor and to the general court as to necessary legislation or action pertaining thereto; (c) consult with the civil aeronautics administration and other agencies of the federal government in carrying forward research and development in aeronautics; (d) exchange with the said civil aeronautics administration and with other state governments through existing governmental channels information pertaining to civil air navigation. . . . [And] the commission may . . . advise and co- operate with any political subdivision of this state or of any other state in all or any matters relating to aeronautics.

Section 39B establishes a procedure for approval by the Commission of the establishment, construction, enlargement or improvement of airports or restricted landing areas by cities and towns, and provides generally that no such activity shall take place without a certificate of approval of the site by the Commission. G. L. c. 90, §39B, para. 1.

Paragraphs 4 and 5 of Section 39B provide as follows:

This section shall not apply to restricted landing areas designed for non-commercial private use, nor to any airport, restricted landing area or other air navigation facility owned or operated within the commonwealth by the federal government; provided, that each person constructing or maintaining a restricted landing area for non-commercial private use shall so inform the commission in writing; and provided, further, that such person shall construct and maintain said restricted landing area in such manner as shall not endanger the public safety.

A city or town in which is situated the whole or any portion of an airport or restricted landing area owned by a person may, as to so much thereof as is located within its boundaries, make and enforce rules and regulations relative to the use and operation of aircraft on said airport or restricted landing area. Such rules and regulations, ordinances or by-laws shall be submitted to the commission and shall not take effect until approved by the commission.

Section 39B, which did not originally include the present second or fifth paragraphs, was added in 1946 by St. 1946, c. 607. The second paragraph, not relevant here, was added in 1948. The fifth paragraph, which is central to Hanlon’s argument, was added in 1985 by St. 1985, c. 30.

“Airport” is defined in G. L. c. 90, §35, as “any area of land or water other than a restricted landing area, which is used, or intended for use, for the landing and take-off of aircraft, and any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon.” “Restricted landing area” is defined in the same section as, “any area of land or water other than an airport which is used, or is made available, for the landing and take-off of aircraft; provided, that the use of such an area may be restricted from time to time by the commission.” G. L. c. 90, §35.

Under the exemption provisions of the fourth paragraph of Section 39B, “this section,” including the requirement for the issuance of a certificate of approval, does not apply to “restricted landing areas designed for non-commercial private use” (nor does it apply to facilities owned or operated by the federal government). The fifth paragraph provides that a city or town may regulate “an airport or restricted landing area owned by a person,” only if its bylaw or other regulation is approved by the Commission. Hanlon argues that the exemption in paragraph 4 should not be read to eliminate the requirement for Commission approval of municipal bylaws or regulations intended to regulate PRLAs. Hanlon argues that the exemption for private, non- commercial restricted landing areas in the fourth paragraph is inconsistent with the requirement for approval of bylaws regulating “restricted landing area(s) owned by a person” in the fifth paragraph.

Hanlon’s argument depends on there being no distinction between commercial private restricted landing areas, which the Commission does approve and regulate, and non-commercial PRLAs, which the Commission neither approves nor regulates. This argument is not supported by the Commission’s own regulations, which address the difference between exempt, private, non-commercial landing areas and those which are subject to approval by the Commission. The term “restricted landing area designed for non-commercial or private use” is not defined in the statute, but I take judicial notice of the Commission’s own regulations, which refer to “restricted landing area designed for non-commercial or private use.” While the Commission regulates minimum requirements for airports and other restricted landing areas, it does not do so for restricted landing areas that are private and non-commercial:

Restricted Landing Area --Non-Commercial Private Use. Landing areas which are used solely for non-commercial, private use do not require an approval from the Commission but must be registered annually on forms provided therefor by the Commission. Landing areas used exclusively by rotary-wing aircraft which are owned and used by an individual or corporation for his or its own business purposes will be considered in this same category.

702 Code Mass. Regs. § 5.03(c). [Note 3]

Thus, Hanlon was required merely to file a notification with the Commission that he had established a PRLA on the Property. There was no approval process, and no attempt to regulate the use of the Property as a private airfield in any way beyond requiring it be registered. In contrast is the Commission’s treatment of commercial landing areas, including both municipal and privately owned commercial airfields, which is highly regulated.

This recognition of a distinction between commercial and non-commercial restricted landing areas is consistent with the statutory exemption in G. L. c. 90, §39B, para. 4, pursuant to which the Commission does not regulate or approve such private, non-commercial restricted landing areas, but merely requires that they be registered. This is because the Commission does exercise its right of approval over all other airports and restricted landing areas (except for those owned by the federal government). In this regard, Hanlon’s argument that regulation of a non- commercial PRLA by a municipality would interfere with the Commission’s statutory authority to regulate is belied by the fact that the Commission in fact does not regulate PRLAs. The Commission merely requires that PRLAs be registered, and asserts no right to approve or disapprove of their operation. [Note 4]

Hanlon’s argument is not helped by the apparent belief of the Commission, as asserted in the affidavit of Christopher J. Willenborg, administrator of the Commission, and in correspondence of the Commission submitted by Hanlon, that it retains the right to approve local bylaws and regulations notwithstanding the exemption provisions of the fourth paragraph of G. L. c. 90, §39B. An administrative agency’s interpretation of its authorizing statute is entitled to some deference when the legislative policy is only broadly stated in the statute. See Consolidated Cigar Corporation v. Department of Public Health, 372 Mass. 844 , 850 (1977). Such deference is not due when the statute, and thus the legislative intent, is clear, and especially where, as here, the administrative agency’s own regulations contradict its interpretation of the statute. An administrative agency is entitled to interpret its authorizing statute, but not to ignore it. See Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 605 (2011).

Thus, while Hanlon argues that municipal regulation of non-commercial PRLAs would interfere with the Commission’s mandate as described in G. L. c. 90, §39B, in fact there is no tension between the idea of municipal regulation of non-commercial PRLAs and the Commission’s mandate, because the Commission’s mandate explicitly excludes regulation by the Commission of non-commercial PRLAs.

This conclusion is consistent with the plain language of the statute. Hanlon argues that the exemption in the fourth paragraph of G. L. c. 90, §39B from “this section” should be construed not to apply to the fifth paragraph of the section, which was added to the statute in 1985, many years after the 1946 approval of the bulk of the statute. This argument ignores the plain language of the statute. “When a statute’s language is plain and unambiguous, we afford it its ordinary meaning.” Commonwealth v. Keefner, 461 Mass. 507 , 511 (2012). “Where…the language of a statute is clear and unambiguous, it is conclusive as to the intent of the Legislature.” Welch v. Sudbury Youth Soccer Association, Inc., 453 Mass. 352 , 355 (2009). The text of the fourth paragraph of Section 39B states, “This section shall not apply” to private, non- commercial restricted landing areas. The word “section” must be given its ordinary and usual meaning, which includes all the paragraphs comprising section 39B. In this context, there is no indication that the Legislature intended the language, “This section shall not apply” to exclude the fifth paragraph from the scope of the exemption it created. This is so even though the fifth paragraph was added after the fourth paragraph. The Legislature must be presumed to have known that the exemption of the fourth paragraph was in the statute when it added the fifth paragraph to the section.

The evident intent of the Legislature in adopting G. L. c. 90, §§35-52, was to require approval by the Commission of airports and restricted landing areas other than those that remain private and non-commercial, and to require Commission approval of municipal bylaws and regulations with respect to such facilities, but to cede to municipalities, without prior approval by the Commission, regulation of the use of land for private, non-commercial restricted landing areas.

Hanlon cites two cases in support of his argument that the Town is foreclosed from regulating the use of land for a private, non-commercial PRLA by its failure to submit the Bylaw to the Commission. In Pearson v. Town of Plymouth, 44 Mass. 741 (1998), the Appeals Court held that the town of Plymouth could not prohibit the use of a great pond for takeoff and landing of float planes unless its bylaw had been approved by the Commission. This result was based on the interpretation of an entirely different statute, the Great Pond statute, G. L. c. 131, §45, which provides for approval by the Commission of town bylaws and regulations purporting to regulate the use of great ponds by aircraft, without exception. The town of Plymouth, having failed to gain such approval, was without authority to prohibit the plaintiff from using Long Pond in Plymouth for takeoffs and landing of a float plane. There is no exemption in G. L. c. 131, §45 with respect to a PRLA or any other type of facility.

Hanlon also cites a decision of the Western Division of the Housing Court, Croteau v. Town of Monson, No. 08-CV-1302 (June 30, 2009). In that case, the Housing Court concluded that the town of Monson was foreclosed from regulating a private helipad because it had failed to submit its zoning bylaw to the Commission for approval under G. L. c. 90, §39B. However, there is no discussion, or even mention, of the interplay of the exemption in paragraph 4 of Section 39B with the bylaw approval requirements of paragraph 5. It appears that the issue may not have been raised to the judge in that case, and therefore it was not addressed.

CONCLUSION

I find and rule that the prohibition in the Bylaw against the use of the Property for the take-off, landing and storage of aircraft, including fixed-wing aircraft and helicopters, applies to the Property, notwithstanding the failure of the Town to submit the Bylaw to the Commission for approval. Hanlon’s motion for summary judgment is DENIED, and summary judgment is GRANTED for the town of Sheffield on Count II of the Complaint, with judgment to enter accordingly. Further, the parties having agreed that the court’s decision with respect to Count II is dispositive of the entire case, judgment shall also enter GRANTING summary judgment for the municipal defendants on Count I of the Complaint.

Judgment accordingly.