SEAN BURKE, RITA BURKE, SHARON WIEZENBAUM, AMY AUSLANDER HIRSCH as Trustee of the AMY AUSLANDER HIRSCH REVOCABLE TRUST, and BARBARA C. FORD, as Trustee of the BARBARA C. FORD REVOCABLE TRUST v. TOWN OF AMHERST, BUILDING COMMISSIONER OF AMHERST, W.D. COWLS, INC. LAND COMPANY, and LANDMARK PROPERTIES.

Among other real estate holdings, defendant W.D. Cowls, Inc. Land Company (Cowls) owns a 154-acre parcel in the north of Amherst (property). In 2013, Cowls entered a purchase and sale agreement with defendant Landmark Properties (Landmark) for the sale of the property. Landmark proposed to build a development of single and two-family homes under the Town of Amherst’s cluster development zoning bylaw, which would be marketed and rented to students at the University of Massachusetts, Amherst College, and Hampshire College. Before Landmark applied for any of the required permits or approvals under the zoning bylaw, plaintiffs Sean Burke, Rita Burke, Sharon Wiezenbaum, Amy Auslander Hirsch as Trustee of the Amy Auslander Hirsch Revocable Trust, and Barbara C. Ford, as Trustee of the Barbara C. Ford Revocable Trust, all individual landowners abutting or near the property, filed this action. After the parties filed cross-motions for summary judgment, Landmark announced that it was abandoning the project for the property. After hearing, the court ordered that the claims under G.L. c. 240, § 14A, relating to the project be dismissed. Remaining in the action are the plaintiffs’ and defendant Cowls and Landmark’s claims under G.L. c. 240, § 14A, relating to the interaction of the cluster development provision of the Town’s zoning bylaw with two other provisions of the bylaw, one requiring a special permit for non-owner occupied duplexes and one requiring lots to have a building area that could contain a circle with a diameter equal to the minimum standard street frontage. The court agrees with Cowls that no special permit is required for non-owner occupied duplexes in cluster developments, but defers to the Town’s reasonable interpretation of the building area provision.

Procedural History

The plaintiffs filed their complaint on July 29, 2013, naming as defendants the Town of Amherst, the Town of Amherst Building Commissioner (together, the Town), Cowls, and Landmark. The complaint consists of three counts under G.L. c. 240, § 14A, for a determination of the application of the Town of Amherst Zoning Bylaw (bylaw) to Landmark’s proposed cluster development. Count One seeks a declaration that Landmark’s proposed project is a “fraternity or sorority building, social dormitory, or similar use related to Amherst College, Hampshire College, or the University of Massachusetts,” a use not permitted in the R-O District in which the property lies. Count Two seeks a declaration that Landmark’s proposed development does not qualify as a cluster development under § 4.3 of the bylaw. Count Three seeks a declaration that Landmark’s proposed amenities to the project are not “lawful accessory buildings” allowed in a cluster development under the bylaw.

Cowls and Landmark filed their Answer and Affirmative Defenses on October 21, 2013. The case management conference was held on November 5, 2013. The Town filed its Answer on November 18, 2013. On February 12, 2014, Cowls and Landmark, with the assent of all parties, filed their First Amended Answer. On June 5, 2014, the court allowed, without opposition, Cowls’s and Landmark’s motion to amend their answer by adding a cross-claim against the Town. Cowls and Landmark filed their cross-claim on June 9, 2014. The cross-claim seeks a declaration under G.L. c. 240, § 14A, that § 6.40 of the bylaw, requiring that lots contain a building area consisting of a circle with a diameter equal to the minimum standard street frontage, does not apply to a cluster development of the property or may be modified. On June 25, 2014, the court allowed, without opposition, the plaintiffs’ motion to amend their complaint. The first amended complaint adds a Count Four, seeking a declaration under G.L. c. 240, § 14A, that the construction of duplex townhouses at the property would require a special permit under § 3.321 of the bylaw.

On July 28, 2014, Cowls and Landmark, and the Town, each filed motions for summary judgment with supporting memoranda and affidavits. The plaintiffs filed their opposition and cross-motion for summary judgment on September 2, 2014, with the other parties filing oppositions and responses in turn. As part of this briefing, the Town disclosed that on September 5, 2014, Landmark, having moved forward with the permitting process for a cluster development at the property, had informed the Town that it now withdrew its application.

The court heard the cross-motions for summary judgment on September 24, 2014. The court allowed the motion of Cowls and Landmark to amend their cross-claim to add the claim against the Town under G.L. c. 240, § 14A, regarding special permits for duplex townhouses in cluster developments. The court then heard argument on the portion of the cross-motions directed to Count Four of the amended complaint and the cross-claim regarding the necessity for a special permit for duplex townhouses, and the cross-claim regarding the minimum lot-size requirement for a cluster development at the property, and took those portions of the cross-motions under advisement. The plaintiffs moved in open court to dismiss Counts One through Three without prejudice (Motion to Dismiss), and the Town joined the motion. Cowls and Landmark opposed the Motion to Dismiss, and moved in open court to amend their cross-claim to add the claims stated in Counts One through Three of the amended complaint as cross-claims against the Town (Motion to Amend). The plaintiffs and the Town opposed the Motion to Amend. The parties were ordered to submit memoranda of law on the Motion to Dismiss and the Motion to Amend, and Cowls and Landmark were instructed to submit an affidavit from Landmark regarding its interest with respect to the property after resolution of the plaintiffs’ claims. On October 8, 2014, Cowls and Landmark submitted their memorandum and the Affidavit of Cinda Jones, the president of Cowls. In their memorandum, Cowls and Landmark assented to the dismissal without prejudice of Count Three of the amended complaint. The plaintiffs and the Town each filed their respective memoranda on October 15, 2014. On November 14, 2014, the court issued its Order on Plaintiffs’ Cross-Motion to Dismiss and Motion of Defendants W.D. Cowls, Inc. and Landmark Properties to Amend Cross-Claim, denying the Motion to Amend and allowing the Motion to Dismiss. This Memorandum and Order on the remaining cross-motions for summary judgment follows.

Discussion

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis College, 462 Mass. at 291-292.

Section 14A provides that the “owner of a freehold estate in possession in land may bring a petition in the land court against a . . . town wherein such land is situated . . . for determination of the extent to which any . . . by-law . . . affects a proposed use, enjoyment, improvement or development of such land.” G.L. c. 240, §14A. The right to bring such a petition “shall not be affected by the fact that no permit or license to erect structures . . . has been applied for.” Id. It is undisputed that Cowls and each of the plaintiffs are owners of land in the Town and that the property is in the R-O zoning district under the bylaw. The remaining claims under § 14A are ripe for decision.

The parties’ § 14A claims require the interpretation of the bylaw, using “the ordinary principles of statutory construction.” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012), quoting Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). The claims at issue concern the interaction of § 4.3 of the bylaw, providing for cluster developments, and Table 3 of the bylaw, providing the frontage requirements for cluster developments, with two other provisions of the bylaw: § 3.3211, which requires a special permit for non-owner occupied duplexes, and § 6.40, which sets forth a minimum building area on a lot consisting of a circle whose diameter is equal to the minimum frontage requirement of the zoning district. Section 4.30 of the bylaw defines a “Cluster Development” as “a residential development in which the building and accessory uses are clustered together with reduced lot sizes, into one or more groups. The land not included in the building lots shall be permanently preserved as open space.” Bylaw § 4.30. The bylaw allows for the construction of one-family detached dwellings, zero lot line single family dwellings, two- family detached dwellings or duplexes, or attached dwellings, on lots that may “have less area, frontage, and/or rear and side yard dimensions than normally required.” Id. at § 4.320. Approval of a cluster development is “by Site Plan Review by the Planning Board.” Id. at § 4.360. Cluster developments are allowed in the R-O zoning district in which the property lies. Id. at § 4.0.

I. Non-Owner Occupied Duplex Special Permit Requirement

Section 3.32 of the bylaw is the use table for residential uses. Section 3.321 addresses the “[t]wo family detached dwelling (duplex).” Id. at § 3.321. Subsection 3.3211 specifically addresses the “[n]on-owner occupied duplex. Id. at § 3.3211. That subsection defines a “non-owner occupied duplex” as one in which “one (1) or both dwelling units are rented and neither unit serves as the principal residence of one or more owner(s) of the property.” Id. It provides that in the R-O zoning district, non-owner occupied duplexes require a special permit. Id. The subsection mandates that the special permit granting authority “require the ongoing services of a qualified professional management company, the presence of an on-site manager, or similar provisions for proper management of the rental use as a condition of approval” and that names and contact information for the owner, management company, and at least one resident be provided and that a management plan and a response plan be part of any application. Id.

Cowls argues that the special permit requirement of § 3.3211 does not apply to non-owner occupied duplexes in a cluster development. The court agrees. When interpreting a bylaw the place to begin is always with the plain language of the bylaw. If that language is unambiguous, the bylaw is enforced according to its plain wording. Libertarian Ass’n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538 , 550 (2012); Shirley Wayside Ltd. Partnership, 461 Mass. at 477. The bylaw should be construed to give effect to all its provisions, in harmony with common sense, to carry out the intent of the bylaw. Wolfe v. Gormally, 440 Mass. 699 , 704 (2004). The special permit requirement for non-owner occupied duplexes is found in a subsection of § 3.32 of the bylaw, which regulates residential uses. Section 3.32 states at the beginning of its use table: “See Article 4 for Cluster Development, Planned Unit Residential Development and Open Space Community Development.” Bylaw § 3.32. This statement indicates an intent that the residential use provisions of § 3.32, including the special permit requirement of non-owner occupied duplexes, do not apply to cluster developments. Instead, the use requirements for cluster developments are set forth in Article 4 of the bylaw, under § 4.3. That provision allows for cluster developments with duplexes, id. at § 4.32, and provides that approval of cluster developments is not by special permit, but rather by site plan review by the Planning Board. Id. at § 4.360. Reading § 3.32 and Article 4 together, giving effect to all their provisions, the intent of the bylaw is unambiguous. The special permit requirement for non-owner occupied duplexes applies to duplexes proposed to be built in the applicable use districts in § 3.3211. Cluster developments, however, are not subject to any of the requirements of § 3.32, including § 3.3211. Cluster developments are to be reviewed and approved according to the provisions of Article 4, with a combination of single-family, duplexes, and multi-family housing allowed and approved by site plan review only. No special permit is required for a cluster development. [Note 1]

II. Frontage Circle Requirement

Section 6.40 of the bylaw concerns frontage lots. It provides:

That portion of a frontage lot within which the principal building is to be located shall be considered the building area. The building area of a frontage lot shall be capable of containing a circle whose diameter is equal to or greater than the minimum standard street frontage required in the district where the lot has its frontage, without any portion of the circle falling outside of the property.

Id. at § 6.40 (emphasis supplied). The parties agree that the frontage circle requirement applies to lots in a cluster development. The dispute is over the meaning of the highlighted language—i.e., what is “the minimum standard street frontage required” in a cluster development. Table 3 of the bylaw sets forth dimensional regulations, including dimensional requirements for cluster developments. One of those requirements is for “Cluster Lot Frontage.” Id. at Table 3. The frontage requirement for cluster developments in the R-O district is 100 feet. Id. This would seem to require that building lots in cluster developments in the R-O district be large enough to contain a circle with a diameter of at least 100 feet, “the minimum standard street frontage.” Cowls, however, points out that the cluster frontage requirement on Table 3 has a footnote k. Footnote k provides: “Requirements may be modified under a Site Plan Review approval granted for a cluster subdivision.” Id. at Table 3, n. k. Article 4, the cluster development portion of the bylaw, provides that cluster lots may have less frontage than required, id. at § 4.320, and explicitly provides that the “Planning Board may reduce the frontage requirements for not more than 50 percent of the lots in the subdivision.” Id. at § 4.3232.

Note k raises the question of what is the proper measure for “the minimum standard street frontage required” in a cluster development for the purposes of determining the diameter of the building circle of a lot. The Town argues that § 6.40 requires that the diameter of the building circle be the “minimum standard street frontage required in the district,” id. at § 6.40 (emphasis supplied), meaning the standard frontage before any modification by the Planning Board under § 4.3232. Cowls argues that the “minimum standard street frontage” in a cluster development is the frontage that the Planning Board, in its discretion under note k and § 4.3232, sets as part of its site plan approval, because Table 3 explicitly permits modification of the frontage and applying the 100-foot minimum diameter could result in misshapen cluster lots that have minimal frontage but balloon out at the rear, defeating the whole purpose of creating a cluster development with buildings “clustered together with reduced lot sizes” for the “[e]fficient use of land.” Id. at §§ 4.30, 4.314.

Each of these readings of the bylaw is reasonable. The building circle requirement is not a frontage requirement; it simply defines a minimum building circle. Its use of the word “standard” in the phrase “minimum standard street frontage” suggests an intent to apply the frontage requirement that is set forth as standard in Table 3, before any permitted modifications. On the other hand, Cowls is correct that this interpretation risks interfering with the creation of a good cluster development. When there is more than one reasonable interpretation of a bylaw deference will be given to the authorities that initially drafted them. Advanced Dev. Concepts, Inc. v. Town of Blackstone, 33 Mass. App. Ct. 228 , 231 (1992). Because both readings of the circle frontage bylaw are reasonable ones, deference will be given to the Town of Amherst’s interpretation that the phrase “minimum standard street frontage” should be read and applied so that the circle frontage diameter of lots in a cluster development cannot be reduced below the minimum frontage requirement for cluster developments in the zoning district even if the frontage is reduced below that amount by the Planning Board.

Conclusion

For the foregoing reasons, the cross-motions of the plaintiffs, Cowls and Landmark, and the Town are ALLOWED IN PART AND DENIED IN PART. Judgment shall enter declaring that (a) the requirement in § 3.3211 of the bylaw that non-owner occupied duplexes are only permitted in the R-O district by special permit does not apply to non-owner occupied duplexes in a cluster development; such duplexes are subject to site plan approval as set forth in Article 4 of the bylaw; and (b) the phrase “minimum standard street frontage required in the district where the lot has its frontage” in § 6.40 means the minimum standard street frontage for cluster developments set forth in Table 3 before any modification of the frontage requirement by the Planning Board as part of site plan review under Article 4 of the bylaw. Pursuant to the court’s Order on Plaintiffs’ Cross-Motion to Dismiss and Motion of Defendants W.D. Cowls, Inc. and Landmark Properties to Amend Cross-Claim entered November 14, 2014, judgment shall further enter dismissing Counts One through Three of plaintiffs’ amended complaint without prejudice.

SO ORDERED