KEVIN and MARYELLEN LUTTRELL, and MATTHEW and LISA BRACCIO v. LEO BARTOLINI, DAVID EAGLE, THOMAS BHISTKUL, PAUL DREPANOS, and LISA CAPPELLO, as They Are Members of the SOUTHBOROUGH ZONING BOARD OF APPEALS, and WILLIAM DePIETRI.

Plaintiffs Kevin and Maryellen Luttrell (the “Luttrells”) and Matthew and Lisa Braccio (the “Braccios”) filed this appeal, pursuant to G. L. c. 40A, §17, of a decision of the Southborough Zoning Board of Appeals (the “Board”), granting a special permit to defendant William Depietri (“Depietri”) for the construction of a fifteen-unit age-restricted multi-family dwelling (the “Project”). The plaintiffs, abutters to the proposed project, allege that the Board had no authority to issue the special permit under the provision of the Southborough Zoning Bylaw (the “Bylaw”) under which the Board purported to act. Instead, they argue that a special permit for “multifamily housing for the elderly, owned by a public or a nonprofit community housing organization” can only be issued under Section 174-8.2B(8) of the Bylaw.

The defendants, both the members of the Board and the developer, Depietri, argue that a special permit for “multifamily housing for the elderly,” without being limited to ownership by a public or a nonprofit community housing organization, is authorized by Section 174-9H of the Bylaw. In the alternative, the defendants argue that the eventual formation of a condominium association pursuant to G. L. c. 183A for the operation of the completed project, will fulfill the requirement that the Project be “owned by a public or a nonprofit community housing organization.”

The plaintiffs have moved for summary judgment on the grounds that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law, based on the contention that the Board had no authority to issue the special permit. The defendants have filed cross-motions for summary judgment, claiming both that the plaintiffs are not persons aggrieved within the meaning of G. L. c. 40A, §17, and that the Board properly issued the special permit.

For the reasons stated below, I conclude that the plaintiffs are not “person[s] aggrieved” by the challenged decision of the Board and lack standing to pursue this appeal. As separate and independently sufficient grounds for awarding summary judgment to the defendants, I conclude on the merits, as a matter of law, that the Board did not exceed its authority, and affirm the Board’s decision granting the special permit.

FACTS

The following material facts are found in the Rule 56 record and are undisputed for the purposes of the motions for summary judgment:

1. The property upon which Depietri proposes to build the disputed multifamily development is a 6.566 acre parcel of land on Oregon Road in Southborough (the “Property”).

2. Depietri owns the Property as trustee of a nominee trust named Absolut Realty Trust, u/d/t dated June 13, 2001, pursuant to a deed dated June 18, 2008 and recorded with Worcester County Registry of Deeds in Book 42985, Page 198.

3. In October, 2010, the Board issued a comprehensive permit to Depietri pursuant to G. L. c. 40B, to construct a fifteen-unit, multi-family dwelling on “substantially the same” Property. The comprehensive permit was not appealed and remains in effect. The project authorized by the comprehensive permit has not been built.

4. On August 28, 2013, the Board voted to approve Depietri’s application for an alternative development of the Property as “multi-family housing for the elderly and more specifically, a fifteen (15) unit over-55 condominium project.”

5. Depietri applied to the Board, and the Board purported to approve the Project, pursuant to Section 174-9H of the Bylaw.

6. Depietri intends to retain ownership of the Property through construction and then to convert the Property to the condominium form of ownership pursuant to G. L. c. 183A to sell the fifteen units to individual buyers.

7. The Property is in a Residence B (“RB”) zoning district under the Bylaw. Section 174- 8.3B of the Bylaw provides that uses allowed by special permit in the RB district are the same as those allowed in the Residence A (“RA”) zoning district.

8. Section 174-8 of the Bylaw is titled “Schedule of Use Regulations.” Section 174-8.2B of the Bylaw, governing special permit uses allowed in the RA (and hence also in the RB district) provides:

Uses allowed by special permit are as follows:

(8) Multifamily housing for the elderly, owned by a public or a nonprofit community housing organization.

(9) Other multifamily dwellings if within a major residential development (Note: Special Permit from the Planning Board.)

9. Pursuant to Section 174-9 of the Bylaw, the Board of Appeals is the special permit granting authority unless otherwise noted.

10. Section 174-9H of the Bylaw provides:

Multifamily housing for the elderly is allowed by special permit per the Schedule of Use Regulations, § 174-8.

11. The Luttrells and the Braccios both own properties that abut the Property;

12. The Luttrells’ house is no closer than 190 feet and 259 feet, respectively, to the two closest units in the Project;

13. the nearest unit in the Project to the Braccio house is a distance of 276 feet;

14. the Braccios’ house directly abuts a portion of the driveway into the Project, which will be screened along the property line by new trees (replacing some of the trees that have already been cleared from the Property), shrubs, and a six-foot high stockade fence;

15. Following construction of the Project, Oregon Road, the road on which the Project and both plaintiffs’ homes are located, will be at less than one tenth its maximum capacity at peak travel times, and the stopping and intersection sight distances from the Project driveway will significantly exceed accepted standards for minimum sight distance.

DISCUSSION

I. STANDARD OF REVIEW.

“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., supra, 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).

II. STANDING.

As abutters to the proposed development on the Property, the plaintiffs enjoy a rebuttable presumption that they are aggrieved persons entitled to challenge the grant of the special permit by the Board, pursuant to G. L. c. 40A, §17. Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). The defendants have challenged the plaintiffs’ standing, contending that they are not aggrieved persons. “If standing is challenged, the jurisdictional question is decided on ‘all the evidence with no benefit to the plaintiffs from the presumption.’” Marashlian, supra, at 721, citing, Marotta, supra, at 204. The party challenging the plaintiff’s presumption of standing as an abutter can do so “by offering evidence ‘warranting a finding contrary to the presumed fact.’” 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461 Mass. 692 , 700 (2012), quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). “If a defendant offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff must prove standing by putting forth credible evidence to substantiate the allegations.” 81 Spooner Road, supra, at 701. Following rebuttal of the presumption by a defendant, plaintiffs have “the burden of proving, by direct facts and not speculative evidence, that they would suffer a particularized injury as a consequence” of the construction approved by the special permit. Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 120 (2011). The facts offered by the plaintiff must be more than merely speculative. Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008). On the other hand, if a defendant fails to offer sufficient evidence to rebut the presumption of standing, then the abutter “is deemed to have standing, and the case proceeds on the merits.” 81 Spooner Road LLC, supra, at 701.

In order to counter the plaintiffs’ presumptive standing as aggrieved persons, the defendants have offered a two-fold argument. They argue that (1) there will be no measurable injury to the plaintiffs’ properties from the Project as compared to the already- approved (but unbuilt) fifteen-unit comprehensive affordable housing development approved under G. L. c. 40B (the “comprehensive permit plan”); and (2) the Project has been designed so that there will not be any impact on the plaintiffs’ properties as a result of the construction of the Project. In addition, the defendants contend that the plaintiffs have not sufficiently articulated any legally cognizable injury, and have produced no facts upon which the court court rely to counter the defendants’ evidence that the Project will have no impact on the plaintiffs. These contentions are each considered below.

A. Comparison to G. L. c. 40B Development.

Prior to the approval of the special permit presently in dispute, Depietri obtained approval of a comprehensive permit pursuant to G. L. c. 40B, for construction of a fifteen-unit townhouse development on the Property. The comprehensive permit, he asserts, remains in effect and could be built, but he would prefer to build the modified, non-comprehensive permit Project approved by the special permit. The two approved plans are similar, but not identical. Significantly, the Project is on a larger site than the comprehensive permit plan as a result of the addition of another parcel of land. The additional parcel brings parts of the proposed development closer to the Luttrells’ property, but increases the distance of the nearest dwelling unit from the Braccio property. Depietri points out in his affidavit, by reference to a report by his development consultant, other differences between the two plans, including increased setbacks of the leaching field and the units on the Project plan, absence of a play area on the Project plan (that Depietri claims was an issue for the neighbors), a simpler and easier-to-maintain drainage system for the Project plan, a reduced traffic impact as a result of the Project as compared to the comprehensive permit plan, and reduced density because of the larger parcel on which the Project is located.

Regardless of the accuracy of Depietri’s assertions that the current Project will have less impact than the comprehensive permit plan, they are a minor, if not negligible, factor in assessing whether there is an injury to the plaintiffs’ properties sufficient to confer standing. In the absence of other evidence offered by the defendants, a comparison showing no injury to the plaintiffs by comparison of the Project to the comprehensive permit plan, is not enough to rebut the presumption of standing enjoyed by the plaintiffs as abutters. In Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 (1996), the court rejected such a comparison as a basis for assessing the standing of a plaintiff in a G. L. c. 40A, §17 appeal. “Although the magnitude of the threat of harm to a potential plaintiff in relation to the threat of harm from a use permissible as of right is a factor that may be considered, it is not dispositive of the standing issue.” Id. at 724. This principle applies equally to a comparison of a proposed project to a use permissible as of right, and a comparison of a proposed project to a similar or earlier version of the project that has already been approved, as in the present case. In Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762 (1996), a developer had obtained approval of a special permit to construct an assisted living facility, and later obtained approval to modify the site plan for the proposed facility. The trial judge required the plaintiff, “in order to demonstrate that she was a ‘person aggrieved,’ to show harm greater than that occasioned by a use that had already been approved… This was inconsistent with the principle that the term ‘person aggrieved’ should not be construed narrowly… [T]he plaintiff should not have been required to show evidence of harm to her property or legal interests caused by the modifications to the site plan that exceeded the over- all harm stemming from the project as originally approved.” Id. at 768.

Accordingly, the defendants cannot rely on a comparison between the Project and the approved comprehensive permit plan in their effort to rebut the plaintiffs’ presumption of standing.

B. Independent Evidence Offered to Rebut Presumption of Standing.

Independently of their effort to rebut the plaintiffs’ presumption of standing by comparison to the comprehensive permit plan, the defendants have offered other evidence suggesting that there is no harm to any cognizable property interest of the plaintiffs as a result of the approval of the Project.

Through material attached to and incorporated by the affidavit of William Depietri, the defendants have produced evidence asserting the following facts: the Luttrells’ house is no closer than 190 feet and 259 feet, respectively, to the two closest units in the Project, much of that distance being occupied by wooded land on the rear of the Luttrells’ property; the nearest unit in the Project to the Braccio house is a distance of 276 feet; the Braccios’ house directly abuts only a portion of the driveway into the Project, which, according to a landscape plan submitted with the Depietri affidavit, will be screened along the property line by new trees (replacing some of the trees that have already been cleared from the Property), shrubs, and a six-foot high stockade fence. With respect to traffic issues, the defendants offer a “traffic impact assessment” concluding that post-development, Oregon Road, the road on which the Project and both plaintiffs’ homes are located, will be at less than one tenth its maximum capacity at peak travel times, the stopping and intersection sight distances from the Project driveway will significantly exceed the minimum standards for sight distance set forth in the American Association of State Highway and Transportation Officials publication, A Policy on Geometric Design of Highways and Streets (5th ed. 2004), that the Project will generally not have a significant negative impact on local traffic operations, and that the new driveway will operate safely.

I conclude that the defendants have offered, “enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff(s) must prove standing by putting forth credible evidence to substantiate the allegations.” 81 Spooner Road, supra, at 701. The facts offered by the plaintiffs must be more than merely speculative. Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008). I now consider whether the plaintiffs have proffered sufficient evidence to substantiate their allegations of harm to the degree necessary to create a triable issue of fact.

C. Plaintiffs’ Evidence of Harm.

Plaintiffs offer the deposition testimony of plaintiffs Maryellen Luttrell and Lisa Braccio in support of their contention that they have offered sufficient credible evidence of harm. Defendants contend that the plaintiffs’ evidence of injury to their properties is either speculative or is insufficiently supported.

In this regard, Maryellen Luttrell testified at her deposition to her concern that her property will be harmed by the clearing of trees on the Property on which the Project is to be constructed, and her concern that this would damage the mature trees on her property. This opinion was offered with no expert support. Similarly, Lisa Braccio testified at her deposition that her property is harmed because the Project Property was “clearcut to my property line. So there was no protection for light intrusion or anything with this project.” Plaintiffs do not point out, and the court is not aware of, any legal support for the proposition that the cutting of trees on the land of another can provide a basis for finding a plaintiff to be aggrieved or that the plaintiffs have any legal right to keep their neighbor’s land wooded. The plaintiffs offered no qualified support for the bare assertion that the cutting of trees on the Project Property would damage trees on the Luttrell property. I therefore conclude that the assertion of damage to trees on the Luttrell property as a result of the cutting of trees on the Project Property is both speculative and without any qualified support. See Sweenie, supra, at 545-546. See generally Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 (1992).

Ms. Luttrell further testified to a loss of “peace and serenity” as a result of the construction of the Project. Concern about a loss of “peace and serenity,” untethered to objective evidence of harm to one in the use of one’s property, such as, for example, a level of noise or traffic disruption that would cause a loss of “peace and serenity,” without more, is essentially an aesthetic concern. “[T]he expression of aesthetic views and speculative opinions, do not establish a plausible claim of a definite violation of a private right, property interest, or legal interest sufficient to bring any of the plaintiffs within the zone of standing.” Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). See also Hallock v. Zoning Board of Appeals of Chatham, 80 Mass. App. Ct. 1104 (2011) (Rule 1:28) (Claim of loss of view provided without “specific factual support…does not rise above the level of conjecture, opinion, or hypothesis.”).

Ms. Luttrell also testified, without elaboration of any kind, that she would suffer an unspecified decrease in the value of her property. “Diminution in the value of real estate is a sufficient basis for standing only where it is ‘derivative of or related to cognizable interests protected by the applicable zoning scheme.’” Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 123 (2011). Where Ms. Luttrell’s opinion regarding the diminution in value of her property is not tethered to a specific injury, it cannot provide an independent basis for standing.

Furthermore, even if it had been tied to a legally cognizable interest, Ms. Luttrell’s opinion as to loss of value was insufficient to create a dispute of fact because, testifying as an owner, she failed to offer sufficient support for her opinion. “A nonexpert owner of property may testify to its value upon the basis of ‘his familiarity with the characteristics of the property, his knowledge or acquaintance with its uses, and his experience in dealing with it.’” Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 , 759 (2010), quoting from Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83 , 85 (1954). Here, Ms. Luttrell did not offer any explanation of her qualifications (other than being an owner) or her familiarity or experience, or any basis for her opinion or facts in support for her opinion beyond a bare assertion that there would a loss of value of unspecified amount. “[W]hether an owner, or any other witness, is sufficiently qualified to offer an opinion as to the value of real property is a question committed to the judge's sound discretion.” Canepari v. Pascale, 70 Mass. App. Ct. 840 , 847 (2011). Here, Ms. Luttrell has offered no basis at all for her opinion that there will be a diminution in the value of her property; I disregard her opinion as speculative and insufficient to create a question of fact, even with the benefit of all reasonable inferences. Moreover, even accepting for purposes of this motion that such a diminution in value would occur (which I do not), Ms. Luttrell has failed to relate this decrease in value to any legally cognizable injury. Accordingly, I am constrained to disregard her opinion that there will be a decrease in the value of her property, and that such decrease would be the result of an injury to a protected interest occasioned by the approval and construction of the Project.

Lisa Braccio testified at her deposition to concerns related to her son. Specifically, Ms. Braccio testified, “the project was clear-cut to my property line. So there was no protection for light intrusion or anything with this project. I have a special needs child with sensory issues, so no protection from – because it was clear-cut and there were no buffers left, would have been cars coming – I have one window on that side of my house, I have two sliders on the back of my house, there would have been light intrusion, traffic, and it would have all been very visibly and concerning to my child.” [Note 1] Light intrusion from increased vehicle traffic and inadequate vegetative screening may well be an injury protected by zoning. Here, however, Ms. Braccio’s deposition testimony was not supported by any facts or analysis to raise her opinion beyond that of mere speculation. The landscape plan for the Project shows new trees, other vegetation, and a six-foot high stockade fence to be installed along the stretch of driveway abutting the Braccio property. Ms. Braccio provided no affidavit, no testimony, and nothing else to address how her claimed harm--light intrusion from automobiles on the driveway--would plausibly occur with the stockade fence and other screening in place. Given these uncontroverted facts, and without the plaintiffs “plausibly demonstrating” how the claimed injury could occur in light of the physical screening described above, this claim consists merely of “fears that are purely speculative and not in accordance with the standing requirements.” Sweenie v. A. L. Prime Energy Consultants, supra, at 545.

To establish their status as persons aggrieved, the plaintiffs put great store in the difference between “multifamily housing for the elderly, owned by a public or a nonprofit community housing organization” pursuant to Section 174-8.2.B(8) of the Bylaw (under which the Project was approved), and “multifamily dwellings [] within a major residential development” pursuant to Section 174-8-2.B(9) of the Bylaw (an “MRD”). The plaintiffs contend that the Project, if it were to have been properly approved, must have been approved as an MRD, and not as a multifamily project under the elderly housing provision. An MRD, they argue, offers significantly greater protections for abutters, notably, greater open space requirements. By the comparison with an MRD, the plaintiffs argue, they have been injured because the Project was not required to comply with these requirements, which would have afforded them greater protection.

This argument suffers from the same infirmity as the defendants’ argument that the plaintiffs are not injured because the Project is no less intrusive than the comprehensive permit plan. The plaintiffs are required to establish a particularized injury to a legally cognizable interest, and this cannot be accomplished by comparing the Project to another type of project that might have been approved. See Marashlian, supra, at 724; Chambers, supra, at 768.

For the reasons stated above, I find that the defendants have successfully rebutted, by credible evidence, the plaintiffs’ presumption of standing, and that the plaintiffs have failed to “put forth credible evidence to substantiate (their) allegations[.]” Marashlian, supra, at 721.

Although it is not necessary to do so in light of my conclusion that the plaintiffs do not have standing, I address below the parties’ arguments concerning the merits of the Board’s issuance of the special permit authorizing the construction of the Project. For the reasons stated below, regardless of whether the plaintiffs had established their standing to challenge the issuance of the special permit, I affirm the issuance of the special permit because the Board did not exceed its authority in granting the special permit.

III. THE BYLAW.

A. Defendants’ Interpretation of the Bylaw.

The plaintiffs’ sole basis for their claim that the Board exceeded its authority in issuing a special permit for the Project is that the Property is not “owned by a public or a nonprofit community housing organization.” [Note 2] Therefore, the plaintiffs argue, the Board acted on a legally untenable ground when it granted a special permit, as it purported to do, under Section 174-8.2B(8) of the Bylaw, because that section authorizes the Board to issue a special permit only for “multifamily housing for the elderly, owned by a public or a nonprofit community housing organization.”

It is undisputed that the Property is owned by Depietri as trustee of a nominee trust, and that he applied for approval of the Project in that capacity. The defendants do not claim that Depietri, in his capacity as trustee or otherwise, qualifies as a “public or a nonprofit community housing organization”. Rather, they argue that the Board was authorized to issue a special permit without regard to the public or nonprofit status of the owner, pursuant to Section 174-9H of the Bylaw. Alternatively, they argue that the ultimately intended transfer of the Project to the condominium form of ownership, when looked at in light of the legislative history of the relevant section of the Bylaw, should qualify the Project as being owned by a public or nonprofit community housing organization for the purposes of the Bylaw. Neither of these arguments has merit.

Section 174-9H of the Bylaw provides: “Multifamily housing for the elderly is allowed by special permit per the Schedule of Use Regulations, § 174-8.” There follows a list of criteria to be considered by Board in granting such a special permit. The “Schedule of Use Regulations,” in Section 174-8.2B(8), describes the use as “multifamily housing for the elderly, owned by a public or a nonprofit community housing organization.” The defendants’ argument that Section 174-9H provides independent authority for the Board to issue a special permit, without being limited to ownership by a public or nonprofit community housing organization, is unavailing. Section 174-9H specifically authorizes the issuance of the special permit only “per the Schedule of Use Regulations.” Section 174-8, the section in which the limitation on ownership is found, is entitled, “Schedule of Use Regulations.” “We are not to look at the provisions of a by-law in isolation; we must read them contextually.” Drummey v. Town of Falmouth, No. 13-P-1498, slip op. at 6 (Mass. App. Ct. Feb. 26, 2015). Here, the reference to the special permit in Section 174-9H explicitly incorporates the limitations found in Section 174-8-2B(8). Accordingly, Section 174-9H does not authorize the issuance of a special permit without compliance with the limitations found in the Schedule of Use Regulations.

The defendants also argue that the eventual conversion of the Project to the condominium form of ownership qualifies the Project as one owned by a public or nonprofit community housing organization within the meaning of the Bylaw. In support of this argument, the defendants assert that the meaning of “nonprofit community housing organization,” as used in the Bylaw, is ambiguous, and urge the court to consider the legislative history of the provision and the Board’s history of issuing such special permits to other for-profit entities that subsequently converted to condominiums.

A court “will not engage ... in an analysis of a statute's legislative history to seek justification for a particular construction, where the statutory language at issue suggests no ambiguity of meaning,” Massachusetts Community College Council MTA/NEA v. Labor Relations Commission, 402 Mass. 352 , 354 (1988). The term “public” as used in the Bylaw is certainly not ambiguous. The term, “nonprofit community housing organization” is defined in Section 174-2 of the Bylaw as follows:

A Massachusetts corporation or foundation, no part of the net earnings of which inures to the benefit of any private shareholder or individual, established by Southborough residents for the sole purpose of providing housing facilities and services.

There is nothing ambiguous about this definition that would require me to look to the legislative history of the bylaw to determine whether it was intended to include a condominium. Even if a condominium organization of unit owners could fit this definition, as argued by the defendants, the Property and the Project were not at the time of application or at the time of approval by the Board owned by a condominium. More significantly, even if a condominium organization of unit owners were the applicant, and even if a master deed creating a condominium had already been recorded, such an organization would not be the “owner” of the Property. The property of a condominium is owned not by the organization of unit owners, but by the unit owners themselves. G. L. c. 183A, §5(a). The land “is owned by the unit owners as tenants in common in proportion to their respective undivided interests.” DiBiase Corporation v. Jacobowitz, 43 Mass. App. Ct. 361 , 366 (1997), affirmed, 427 Mass. 1004 . When the organization of unit owners exercises its powers, it does so as attorney in fact for the unit owners, and not as an owner itself. G. L. c. 183A, §5(b)(2).

The Board’s apparent history of approving “multifamily elderly housing” on past occasions without compliance with the ownership provisions of the Bylaw does not require an interpretation deferring to this practice. A local board’s interpretation of its zoning bylaw ordinarily is due some deference. Deadrick v. Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 , 546 (2014). However, where an administrative agency’s interpretation of its governing regulation or bylaw is inconsistent with the plain language of the enactment, no deference is due. See Warcewicz v. Department of Environmental Protection, 410 Mass. 548 , 550 (1991).

B. Invalidity of Ownership Clause of the Bylaw.

Notwithstanding the conclusion that the Project is not “multifamily elderly housing for the elderly, owned by a public or a nonprofit community housing organization,” I asked the parties to address the effect on the validity of the Bylaw, if any, of CHR General, Inc. v. City of Newton, 387 Mass. 351 (1982). Each of the parties submitted a supplemental memorandum as requested.

In CHR General, the Supreme Judicial Court held that a zoning bylaw that regulates the ownership of land, as opposed to the use of land, is an invalid exercise of a municipality’s zoning power. The court held that the City of Newton, in requiring a discretionary “conversion permit” for the conversion of rental housing to the condominium form of ownership, exceeded the zoning authority granted to cities and towns under the Home Rule Amendment, Article 89 of the Amendments to the Constitution of the Commonwealth (“HRA”), by impermissibly infringing on civil relationships in violation of Section 7(5) of the HRA. Section 7(5) of the HRA bars the enactment of laws by municipalities “governing civil relationships except as incident to an independent municipal power.” An ordinance or bylaw affecting ownership cannot be properly incident to either the inherent zoning or police power of a municipality. Id. at 355.

“A ‘fundamental principle of zoning [is that] it deals basically with the use, without regard to the ownership, of the property involved, or who may be the operator of the use.’” Id. at 356, quoting A. Rathkopf, Zoning and Planning § 1.04 (4th ed. 1982). In limited circumstances, a bylaw on its face regulating ownership may be valid where a change in ownership represents an actual change in use. Thus, a bylaw regulating the conversion of seasonal cottage colonies to the condominium form of ownership was valid because it could be expected to cause the change of use of the cottages from seasonal to year-round use, and therefore was a regulation of use and not ownership. Goldman v. Dennis, 375 Mass. 197 , 199 (1978). Where no such change in land use can be found as a result of the regulation of the form of ownership, the bylaw is invalid as a violation of Section 7(5) of the HRA. Bannerman v. Fall River, 391 Mass. 328 (1984).

Neither the plaintiffs nor the defendants have articulated any difference in the way multifamily housing for the elderly would be used if it was owned by a for-profit entity on the one hand or by a public or nonprofit community housing organization on the other hand. The plaintiffs, however, citing Lovequist v. Dennis, 379 Mass. 7 (1979), argue that the Bylaw is valid nevertheless because it is specifically authorized by statute. The plaintiffs claim that G. L. c. 40A, §9, ninth paragraph, specifically authorizes the Bylaw as embodied in Section 174-8.2B(8):

Zoning ordinances or by-laws may also provide for the use of structures as shared elderly housing upon the issuance of a special permit. Such zoning ordinances or by-laws shall specify the maximum number of elderly occupants allowed, not to exceed a total number of six, any age requirements and any other conditions deemed necessary for the special permits to be granted.

The cited section authorizes the approval of group homes, not multifamily dwellings, hence the provision for the limitation on the number of occupants to six. The Project, a multifamily development with fifteen dwelling units, does not fit this description, and in any case exceeds the maximum number of occupants that would be allowed if it were to be deemed “shared elderly housing.”

I conclude that the clause in Section 174-8.2B(8) limiting ownership of multifamily elderly housing to a “public or nonprofit community housing organization” is an invalid exercise of the Town of Southborough’s zoning authority, which the Board would have no authority to enforce. Accordingly, the Board did not exceed its authority in issuing the special permit without complying with the limitations required by the clause or otherwise taking the clause into account.

CONCLUSION

For the reasons stated above, the plaintiffs’ motion for summary judgment will be denied and the defendants’ cross motions for summary judgment will be allowed. The Judgment that I direct enter in this case will affirm the Board’s decision as a proper exercise of its authority, and as a result of the absence of any person with standing to challenge that decision.

Judgment accordingly.