Plaintiff Barbara A. Boch (Boch) seeks a determination that she may use her residential property in town of Edgartown for the landing and takeoff of helicopters as a use that is accessory to her residential use of her property. The Edgartown Inspector of Buildings issued a cease and desist order forbidding the landing of helicopters at the property. The plaintiff appealed to the defendant Edgartown Zoning Board of Appeals (the Board), which upheld the cease and desist order. This action, an appeal pursuant to G. L. c. 40A, §17, followed.
Boch has moved for summary judgment and offers two legal theories in support of her appeal. First, she argues that the use of her property as a private helicopter landing site is a valid accessory use authorized by the Edgartown Zoning By-law (the Bylaw). Second, she argues that the town of Edgartown (the Town) has no authority to prohibit the takeoff and landing of helicopters because the Towns zoning bylaw has not been approved by the Aeronautics Division (formerly the Massachusetts Aeronautics Commission) of the Massachusetts Department of Transportation (the Commission). For the reasons stated below, I find for the Board on both of these issues.
The following material facts are found in the Rule 56 record and are undisputed for the purposes of the motion for summary judgment:
1. Boch owns and resides for part of the year at 185 Katama Road, Edgartown (the Property).
2. The Property is a 15-acre rectangular waterfront parcel bounded by Vineyard Sound on the northeast and by Katama Road on the southwest.
3. The Property is improved by a single-family residence, and a majority of the Property is occupied by a relatively flat grass lawn.
4. The Property is in the R-60 Zoning District under the Bylaw.
5. Article IV, Sections 4.1 and 4.2 of the Bylaw provide that in the R-60 Zoning District, no building or premises shall be used in whole or in part for any uses except the uses listed in the section.
6. Uses listed in Section 4.1 as being allowed as a matter of right include, Accessory uses customarily incidental to a permitted use on the same premises, including by [sic] not limited to... There is no listing for aircraft landings and takeoffs.
7. Article IV, Section 4.1 and 4.2 do not list aircraft landings and takeoffs as either a use permitted by right or as a use permitted conditionally on the issuance of a special permit.
8. The Town first adopted a zoning bylaw in 1969. On two prior occasions, in 1987 and 2009, the building inspector for the Town or his predecessor issued cease and desist orders with respect to the use of private premises for helicopter takeoffs and landings. On each occasion, the building inspectors order was upheld by the Superior Court.
9. The Bylaw has not been submitted to the Commission for approval under G. L. c. 90, §39B.
10. Boch and members of her family traveled to and from the Property by helicopter on numerous (in excess of sixty) occasions from June, 2011 through August 20, 2012.
11. On these occasions, the takeoff and landing area on the Property was on the lawn between the dwelling and Katama Road.
12. By a letter dated August 21, 2012, the Inspector of Buildings ordered Boch to cease and desist from using the Property for landing of helicopters.
13. On or about September 12, 2012, Boch filed an appeal to the Board of the Inspector of Buildings cease and desist order.
14. On November 20, 2012, Boch filed an Initial Notification of a Private Restricted Landing Area, registering the Property with the Commission pursuant to G. L. c. 90, §39B. The Commission acknowledged receipt of the form by a letter dated December 5, 2012, and informed Boch that the filing was complete.
15. The Board held a hearing on Bochs administrative appeal on December 5, 2012, and issued a written decision, filed with the Town Clerk on December 17, 2012, upholding the order of the Inspector of Buildings prohibiting the use of the Property for the takeoff and landing of helicopters.
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).
Bochs argument is two-fold: (1) Even if the Bylaw prohibits the use of the Property for takeoffs and landings of helicopters, Edgartown may not regulate takeoffs and landings of helicopters at the Property because the Bylaw has not been submitted to and approved by the Commission as required by G. L. c. 90, §39B; and (2) in any event, the Bylaw, properly construed, does not prohibit the use of the Property for takeoffs and landings of helicopters. I address each of these arguments in turn.
G. L. c. 90, §39B
Boch argues that the Town is prohibited from regulating the use of the Property as a non- commercial private restricted landing area (PRLA) because the Town has never submitted the bylaw to the Commission for approval, a requirement that Boch argues is a condition precedent to any authority of the Town to regulate the use of the Property as a non-commercial PRLA. Having failed to submit the Bylaw to the Commission, Boch 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. Boch 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). Ultimately, for the reasons stated below, I find that this argument is without merit, and hold that the right of the Town to prohibit the use of the Property as a non-commercial private restricted landing area 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 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 Bochs 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 requirements for the issuance of a certificate of approval, does not apply to restricted landing areas designed for non-commercial private use (nor 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. Boch 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 restricted landing areas designed for non-commercial private use. Boch 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. The legislative history of G. L. c. 90, §39B, Boch argues, requires a conclusion that the fifth paragraph of G. L. c. 90, §39B, should be read to require Commission approval of all municipal regulation of privately owned airfields. The plain language of the statute, the statutory scheme examined as a whole, and the Commissions regulations implementing the statute, however, do not bear out this argument.
Bochs 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. The Commissions regulations bear out this distinction. The regulations address the difference between exempt, private non- commercial landing areas, and those that 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 Commissions 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. § 3(c). [Note 1]
Thus, Boch was required merely to file a notification with the Commission that she had established a PRLA on the Property, and the Commissions response merely confirmed that the Commission had received the notification and that the notification was complete. There was no approval process, and no attempt to regulate the use of the Property as a private heliport in any way beyond requiring it be registered. In contrast is the Commissions treatment of commercial landing areas, including both municipal and privately owned commercial airfields, which is highly regulated.
This recognition in the regulations 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, Bochs argument that regulation of a non-commercial PRLA by a municipality would interfere with the Commissions statutory authority to regulate is belied by the fact that the Commission in fact does not regulate non-commercial PRLAs. The Commission merely requires that non-commercial PRLAs be registered, and asserts no right to approve or disapprove of their operation. Significantly, the Commissions regulations make the same distinction between commercial heliports and private, non-commercial heliports, as they do for airfields for fixed-wing aircraft, imposing minimum requirements for approval in the case of the former, and requiring only that the operator inform the Commission of the existence of the heliport in the case of the latter. See 702 Code Mass. Regs. §§ 5.03(4) and 5.03(7). Thus, while Boch argues that municipal regulation of non- commercial PRLAs would interfere with the Commissions mandate as described in G. L. c. 90, §39B, in fact there is no tension between municipal regulation of non-commercial PRLAs and the Commissions mandate, because the Commissions mandate explicitly excludes regulation by the Commission of non-commercial PRLAs.
This conclusion is consistent with the plain language of the statute. Boch 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, 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 statutes 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 phrase, 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.
Boch urges the court to ignore the literal meaning of the words, this section as necessarily including all paragraphs, arguing that a literal reading of the words would conflict with the intended purpose of the enactment. In Commonwealth v. Neiman, 396 Mass. 754 (1986), the court did just that, declining to apply the words, this section in the fourth paragraph of G. L. c. 94C, §32A, a criminal sentencing statute, to all four paragraphs of the section, concluding that the legislative intent was to apply the requirements of the fourth paragraph only to the preceding third paragraph. When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute; otherwise the different sections of the same statue might be so construed as to be repugnant and the intention of the legislature might be defeated. Id. at 756, quoting Holbrook v. Holbrook, 1 Pick. 248 , 250 (1823). Unlike the result of such an examination in Neiman, however, looking to the legislative intent by examining the statutory scheme as a whole does not change the conclusion that there is no tension between the legislative intent and the application of the exemption in the fourth paragraph of G. L. c. 90, §39B to the entire section. If a literal reading of the statute does not frustrate the demonstrated legislative intent, there is no basis for disregarding the literal requirements of the statute. Compare Murphy v. Bohn, 377 Mass. 544 (1977), in which the court concluded that a literal reading of the no fault law enacted by St. 1970, c. 670 would frustrate the legislative intent by preventing a motorcyclist from recovering for pain and suffering where he did not reach certain thresholds of economic damages. Another case Boch relies upon, Sullivan v. Chief Justice for Administration and Management of the Trial Court, 448 Mass. 15 (2006), similarly allows a departure from the literal words of a statute only when a failure to use a liberal, if not literally exact, interpretation of certain words is necessary to accomplish the purpose indicated by the words as a whole, Id. at 24, quoting, Champigny v. Commonwealth, 422 Mass. 249 , 251 (1996). An examination of the legislative intent leads to the conclusion that no such departure from a literal meaning of the words of the statute is necessary to honor the legislative intent in the present case.
The statute as a whole reveals that the intent of the Legislature in adopting G. L. c. 90, §§35-52, was to require approval by the Commission of airports, and of 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 regulation of the use of land for private, non-commercial restricted landing areas. The Legislative Recommendations of the Massachusetts Aeronautics Commission, cited by Boch as part of the legislative history of the statute, are not inconsistent with this conclusion. The recommendations, titled, An Act Regulating The Use Of Private Aircraft Landing Areas, explain the proposed fifth paragraph, which imposes the requirement of Commission review of local bylaws, as a measure that provides fair treatment of the conflicting interests involved while avoiding entanglement in the issues of federal preemption. The court reads the statute that resulted from the recommendations as quite sensibly instituting a system allowing unfettered municipal regulation of the use of land for presumably small, non-commercial private restricted landing areas, and a requirement for Commission approval of commercial private facilities or those owned by municipalities. Ironically, Boch argues that such a reading renders the fifth paragraph superfluous, and is therefore an incorrect interpretation, but in fact it is Bochs interpretation that would render the fourth paragraph essentially superfluous. Under the interpretation offered by Boch, no local bylaw or regulation could be effective with respect to any private restricted landing area designed for non-commercial use absent approval by the Commission, despite the explicit exemption in the fourth paragraph from regulation by the Commission for such landing areas.
Nor is there any validity to the claim by Boch that the Edgartown prohibition on the landing of aircraft in residential neighborhoods interferes with the Commissions jurisdiction over the regulation of flight. There is a difference between regulating land use and regulating flight operations at airports and other facilities. The Bylaw makes no attempt to regulate flight operations of aircraft. This distinction has been recognized by the federal courts in considering similar disputes concerning allegations of federal preemption of local land use regulation of airfields. In Condor Corporation v. City of St. Paul, 912 F.2d 215 (8th Cir. 1990), the court considered whether a local land use decision denying a permit for operation of a heliport was preempted by the federal law regulating aviation. The court held, [w]e see no conflict between a citys regulatory power over land use, and the federal regulation of airspace, and have found no case recognizing a conflict. Id. at 219. Similarly, in Hoagland v. Town of Clear Lake, Indiana, 415 F.3d 693 (7th Cir. 2005), the court considered whether a local zoning ordinance prohibiting landing areas was preempted by the Federal Aviation Act, 49 U.S.C. §40101, et seq. The court held that the zoning ordinance was not preempted. We are not convinced that Congress meant to take the siting of air fields out of the hands of local officials. The siting of an airfield so long as it does not interfere with existing traffic patterns, etc. remains an issue for local control. Id. at 697. The Hoagland court distinguished City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), relied on by Boch, in which the Supreme Court determined that local noise regulations were preempted by a pervasive federal scheme of federal regulation of noise at airports. Id. Thus, the courts have recognized a distinction between regulation of flight operations, and control of land use, which is left to local officials. See also, Gustafson v. City of Lake Angeles, 76 F.3d 778, 783 (6th Cir. 1996) (United States sovereign regulation of the airspace over the United States and the regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land use.).
Boch cites two cases in support of her argument that the Town is foreclosed from regulating the use of land for a 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.
Boch 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. There is, however, no discussion in that case 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.
Boch argues that, in the event the zoning bylaw may regulate in this area, then the Bylaw should either be construed to allow private helipads as a customary accessory use to residential property, or that the Towns enforcement attempts should be construed as arbitrarily and capriciously singling out helicopter travel while not regulating other means of vehicular ingress and egress to residential property. Neither of these arguments can succeed.
The Bylaw is a prohibitive bylaw, whereby uses that are not expressly permitted are deemed prohibited. The Bylaw provides that, in the zoning district in which the Property is located, no building or premises shall be used in whole or in part for any uses except the uses listed in Article IV, Sections 4.1 and 4.2. Airfields of any type are not listed, and so they are prohibited as a principal use in the district. The provision for accessory uses is more open-ended, allowing all accessory uses that are customarily incidental to a permitted use on the same premises[.] [Note 2]
I first address Bochs latter argument that the Bylaw should not be construed to prohibit her helicopter takeoff and landing area on the Property because the Bylaw should not be construed to allow regulation of ingress and egress to property as a use of land. This plainly is not the case. Were this argument to be accepted, the regulation of driveways and parking spaces would be prohibited. It is without question that the extent to which land may be used to accommodate various modes of transportation is a valid object of land use regulation in zoning bylaws and ordinances. See, e. g., Texstar Construction Corp. v. Board of Appeals of Dedham, 26 Mass. App. Ct. 977 (1988) (town properly denied application to park tractor trailers on property as accessory use); Y.D. Dugout v. Board of Appeals of Canton, 357 Mass. 25 , 33 (1970) (zoning board could require additional off-site parking spaces as part of site plan approval in congested area); Brackett v. Board of Appeal, 311 Mass. 52 (1942) (zoning ordinance prohibited accessory parking for hotel in abutting single-family district). The right of towns to regulate use of land with respect to the types of vehicles that can be used for ingress and egress includes the right to regulate the accessory use of land for takeoff and landing of aircraft. Harvard v. Maxant, 360 Mass. 432 (1971) (private airfield did not qualify as customary and incidental accessory use to primary use as single-family residence); Garabedian v. Westland, 59 Mass. App. Ct. 427 (2003) (private airfield and hangars not valid as customary and incidental accessory use to single-family residence). Accordingly, I do not credit the argument that ingress and egress to property is not a use of property that may be regulated. Virtually every zoning bylaw and ordinance in Massachusetts regulates the ingress to and egress from land by regulating the manner in which that ingress and egress can take place, the type of vehicles that can be used for such access or stored on property, or the manner in which vehicles must be stored. These are valid regulations of land in general.
Bochs main argument is that the use of the Property for the takeoff and landing of helicopters is permitted as a use accessory to her use of the property as a single-family residence. She argues that what is customary and incidental for accessory ingress to and egress from residential properties in Edgartown has evolved over the years, to the point that accessing a residence by such recent transportation modalities as jet ski, kiteboard, and Segway personal transporters, is now customary and incidental. Thus, argues Boch, access by private helicopter fits within the evolving concept of personal transportation. Boch is correct that what may be considered a customary and incidental accessory use may change as customs change. The court in Maxant recognized this. In holding that a private airstrip was not a valid accessory use, the court cautioned that, we intend no suggestion that a private landing strip may not some day become customary and incidental to a residential use. Harvard v. Maxant, 360 Mass. supra at 440. Nothing in the record, however, suggests that day has arrived in Edgartown.
Boch offers by affidavit the observation that her son has observed people on jet skis going to and from other Edgartown residential properties, that he has observed people using kiteboards in the harbor next to residential properties[,] and that he has seen people riding by his mothers house on Segway personal transporters. None of this supports a reasonable inference that jet skis, kiteboards, or Segways are actually used for ingress to and egress from residential properties. The affidavit offers that Bochs son has seen people use jet skis in the past twenty years or so to enter and leave Edgartown residential properties, but he does not offer any information from which it could reasonably be inferred that such activity was anything more than sporadic, or that such activity was for ingress and egress rather than for recreational purposes. With respect to kiteboards, he does not claim that kiteboards were observed entering or leaving residential properties, but asserts that it is reasonable to infer that some or all of those people entered and/or departed from Edgartown residences. Such an inference, even if drawn, is consistent with the fact that kiteboard activity in Edgartown harbor is more likely purely recreational, and nothing in the affidavit supports any inference at all that kiteboarding has become an actual mode of transportation. Likewise, Bochs son does not claim actually to have observed Segway riders using these vehicles to enter or leave residential properties, but instead infers that these vehicles were used to enter or leave Edgartown residences, because they are being used in Edgartown. This inference is not supported by any facts offered in the affidavit or otherwise. Even leaving aside for the moment the fact that the affidavit does not actually claim to have observed the use of these vehicles on any regular basis for ingress and egress to residential properties, these modes of transportation, even if used as asserted, do not justify a conclusion that landing a helicopter has become a valid, customary and incidental accessory use in Edgartown. A Segway is not a helicopter. As Justice Kass observed, landing aircraft is a very large scale activity. Keeping elephants is different than keeping a dog, and it toys with the language to say maintaining a landing strip and hangars is incidental to a single family house. Garabedian v. Westland, supra at 436.
Finally, Boch offers her own frequent landings and takeoffs by helicopter to buttress her argument that the use of property for helicopter landings and takeoffs has become customary and incidental so as to become a valid accessory use. This is not enough. To become customary and incidental, a use must be shown to have achieved some level of prominence on other properties in the town, and the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties. Harvard v. Maxant, supra at 439. The Garabedian court found that three airstrips in a town of 14.1 square miles was not sufficient to make such uses common enough to be considered customary and incidental. Garbedian v. Westland, supra at 436. Certainly, if three is not enough, one will not be enough.
I find and rule that the Boards decision affirming the cease and desist order of the Inspector of Buildings was neither arbitrary nor capricious, and the Board did not exceed its authority in making its decision. Bochs motion for summary judgment is DENIED, and summary judgment is GRANTED for the Board.
[Note 1] I take judicial notice of the Commissions regulations pursuant to G. L. c. 30A, §6. See also, Massachusetts Guide to Evidence, §202(a).
[Note 2] The Bylaw includes a small list of uses that are considered customarily incidental in the residential restricts, such as a home office. The list is introduced with the caveat that permitted accessory uses include those on the list, but are not limited by them.