ROMA, III, LTD. v. CHARLES W. CHRISTOPHER, FREDERICK C. FRITHSEN, LARS-ERIK WIBERG, MICHAEL BACE, and TACY D. SAN ANTONIO, as they are MEMBERS of the TOWN OF ROCKPORT BOARD OF APPEALS.

Plaintiff Roma, III, Ltd. (Roma) appeals the decision of the Town of Rockport Board of Appeals (Board), pursuant to G.L. c. 40A, § 17, upholding the Rockport building inspector’s (Building Inspector) enforcement order enjoining Ron Roma (Mr. Roma) from landing his personal helicopter on Roma’s property at 129 and 133R Granite Street in Rockport (Property). Roma asserts that the decision was arbitrary and capricious since the Town of Rockport Zoning Bylaw (Bylaw) does not regulate such use or, alternatively, it is an allowed accessory use of Mr. Roma’s home. Roma also brings a claim under G.L. c. 240, § 14A, seeking a determination that, to the extent that the Bylaw provides an implied ban on the use of a helicopter to access a lawful use without rational basis, the Bylaw itself exceeds the constitutional limits of the Town of Rockport’s (Town) police power, violating the Due Process and Equal Protection provisions of the Federal and State Constitutions, as applied to Roma. Additionally, Roma seeks a determination that the Board is without authority to enforce any rule restricting Mr. Roma from using his helicopter at the Property since the Bylaw was not approved by the Aeronautics Division of the Massachusetts Department of Transportation as required by Paragraph 5 of G.L. c. 90, § 39B.

The Board argues that their decision was not arbitrary and capricious because the Building Inspector reasonably interpreted the Bylaw as prohibiting the use of a helicopter as either a principal use or a permissible accessory use to a residence within the applicable zoning district where the Property is located. Even if it was a permissible accessory use, the Board states that the helicopter use did not meet the second criterion under the Bylaw, that the use not be detrimental to the neighborhood. The Board urges the court to defer to its judgment as it was well-founded in both law and the facts of the case.

Both parties have moved for summary judgment. Based on the pleadings, evidence in the record, and taking into consideration the recent Appeals Court decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), for reasons explained more thoroughly below, Roma’s Motion for Summary Judgment is ALLOWED and the Board’s Motion for Summary Judgment is DENIED.

Procedural History

On March 12, 2015, Roma filed its Complaint, and on April 23, 2015 filed its Amended Complaint. On May 8, 2015, a case management conference was held. On May 16, 2016, Roma filed Plaintiff’s Unopposed Motion for Leave to Amend the (First) Amended Complaint. The court allowed the Motion for Leave to Amend the (First) Amended Complaint on May 18, 2016. On May 20, 2016, Roma filed the Second Amended Complaint. The Second Amended Complaint contained three counts: (I) Appeal of Board’s Decision pursuant to G.L. c. 40A, § 17; (II) Declaratory Judgment pursuant to G.L. c. 240, § 14A on as-applied Constitutional Violations; and (III) Declaratory Judgment pursuant to G.L. c. 240, § 14A on State Statutory Preemption under G.L. c. 90, § 39B.

On August 16, 2016, Roma filed Plaintiff’s Motion for Summary Judgment, Memorandum of Law in Support of Motion for Summary Judgment, Statement of Undisputed Material Facts in Support of Plaintiff’s Motion for Summary Judgment, and Statement of Legal Elements in Support of Plaintiff’s Motion for Summary Judgment. On September 15, 2016, the Board filed Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment and Cross- Motion for Summary Judgment, Memorandum in Support of Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment, Combined Statement of Material Facts (Def. Facts), Index of Additional Exhibit, and Statement of Legal Elements in Support of Defendant’s Cross-Motion for Summary Judgment.

On September 26, 2016, Roma filed Plaintiff’s Reply Memorandum of Law in Support of Motion for Summary Judgment, Combined Statement of Material Facts (Pl. Facts), Supplemental Index (Pl. Exh.) with Affidavit of Ron Roma (Roma Aff.), and Plaintiff’s Motion to Strike Paragraph 23 of the Defendants’ Statement of Additional Undisputed Material Facts. On September 29, 2016, the Board filed Defendant’s Response to Plaintiff’s Motion to Strike. On September 30, 2016, a hearing on the cross-motions for summary judgment was held. The court allowed Plaintiff’s Motion to Strike Paragraph 23 of the Defendants’ Statement of Additional Undisputed Material Facts and allowed Defendant’s Motion to Supplement the Record. The Motions for Summary Judgment were taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the 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 draws “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).

Undisputed Facts

The following facts are undisputed or admitted for the purpose of summary judgment. To aid understanding, the statutory and regulatory context underlying some of the facts is included.

1. Plaintiff Roma, III, Ltd. (Roma) is a Florida Limited Partnership, with a principal place of business at 5100 W. Lemon Street, Suite 311, Tampa, FL. Pl. Facts, ¶ 1; Def. Facts, ¶ 1.

2. Roma is the owner of property located at 129 and 133R Granite Street in Rockport (Property). Pl. Facts, ¶ 2; Def. Facts, ¶ 2.

3. The Property consists of 1.62 acres of oceanfront property improved by a single- family residence that is currently under construction for Mr. Roma’s family (Roma Home). The Property is located in a Residential A Zoning District (RA District). Pl. Facts, ¶ 3; Def. Facts, ¶ 3; Pl. Exh. C, Exh. 2; Roma Aff., ¶¶ 4-5.

4. Section III.B of the Bylaw, the Table of Permitted Uses, allows single-family residences in the RA District. Pl. Exh. C, Exh. 2; Roma Aff., ¶ 6.

5. After receiving a special permit and site plan approval from the Rockport Planning Board in 2013, the Roma Home is an as-of-right use and dimensionally authorized under the Bylaw. Roma Aff., ¶¶ 7-11.

6. Mr. Roma obtained his license to operate helicopters in 2011. Since then, he regularly flies his personal helicopter to travel among his family’s homes and to business and other engagements. Roma does not fly his helicopter for commercial purposes and typically flies the helicopter alone, or with a few passengers. Roma Aff., ¶¶ 13-16.

7. In September 2013, Roma sought a Federal Aviation Administration (FAA) determination of airspace suitability for a private helicopter landing area at the Property. By letter dated September 18, 2013, the FAA recognized the Property as a licensed private use heliport. Roma Aff., ¶ 17, Exhs. 1-2.

8. Roma also received an airspace review approval from the Massachusetts Department of Transportation, Aeronautics Division (Division), which provided that the Property did not require any permitting. Roma Aff., ¶ 18, Exh. 3.

9. On November 14, 2014, Mr. Roma flew his personal helicopter to the Property. Pl. Facts, ¶ 4; Def. Facts, ¶ 4; Roma Aff., ¶ 22.

10. On or about November 24, 2014, the Rockport Building Inspector issued an enforcement order (Order) stating in part:

It has recently been brought to my attention that your property at 129 Granite Street, referenced above, has been the site of a helicopter landing on November 14, 2014. Your property is located in a Residential A Zoning District. A review of our zoning bylaws indicates that a heliport is not allowed, either as a principal use of the property or an accessory use, in any zoning district in the Town. The use of this property for the landing of a helicopter is a violation of Section III.B of the Town of Rockport Zoning Bylaw. It is, therefore, an order of this office that the landing of helicopters on the property be stopped immediately. Failure to comply with this order may result in fines of up to $300 per day.

Pl. Facts, ¶ 5; Def. Facts, ¶ 5; Pl. Exh. C, Exh. 3.

11. The Town has a restrictive Bylaw. Section I.B of the Bylaw provides that “[n]o parcel of land in any district shall be used for any purpose other than those authorized for the district in which it is located.” There is no reference to the use or operation of aircrafts or regulation of private landing strips in the Table of Permitted Uses for the RA District, or anywhere else the Bylaw. Pl. Facts, ¶¶ 11-12; Def. Facts, ¶¶ 11-12; Pl. Exh. C, Exh. 2.

12. On or about December 18, 2014, Roma filed an appeal of the Order to the Board. Pl. Facts, ¶ 6; Def. Facts, ¶ 6.

13. On February 19, 2015, the Board held a public hearing on Roma’s appeal of the Order. At the close of the hearing, the Board voted unanimously to deny Roma’s appeal and uphold the Order. Pl. Facts, ¶¶ 7-8; Def. Facts, ¶¶ 7-8.

14. On February 25, 2015, the Board issued a written decision embodying the vote and providing its rationale for upholding the Order (Decision). In its Decision, the Board stated that “[n]owhere in the Town’s Bylaw is helicopter use specified and is, therefore, not permitted.” The Board further concluded that the use was not “allowed as a primary use” nor “as a by-right accessory use associated with the single-family use, without some form of approval, variance and/or special permit.” Pl. Facts, ¶ 9; Def. Facts, ¶ 9; Pl. Exh. C, Exh. 4.

15. On March 12, 2015, Roma timely filed an appeal of the Board’s Decision pursuant to G.L. c. 40A, § 17 in this court. Pl. Facts, ¶ 10; Def. Facts, ¶ 10; Pl. Exh. C, Exh. 5.

16. General Laws c. 90, §§ 35-52, provides the general legislative scheme for development and regulation of aircrafts and airports in the Commonwealth. General Laws c. 90, § 39, sets forth that the general purpose of carrying out the provisions of §§ 35-52 is for “the purpose of protecting and insuring the general public interests and safety . . . and for the purpose of developing and promoting aeronautics within the commonwealth.” G.L. c. 90, § 39.

17. Paragraphs One through Three of Section 39B establish a procedure for approval by the Division 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 Division. Paragraph 4 of Section 39B and the Division’s regulations implementing G.L. c. 90, § 39B explicitly exempt from this requirement “private restricted landing areas.” [Note 1] Pl. Facts, ¶¶ 16-17; Def. Facts, ¶¶ 16-17; G.L. c. 90, § 39B; 702 CMR 5.01-5.03.

18. “Private Restricted Landing Area” (PRLA) is defined as a “landing area that is used solely for non-commercial, private use by the owner or lessee of the landing area.” 702 CMR 2.01; Pl. Facts, ¶ 18; Def. Facts, ¶ 18.

19. The regulations require that one who intends to use his property for a non- commercial PRLA must notify the Division by completing a Notification Form which seeks no information about the property on which the use is to take place, other than its distance from nearby public airports and whether the area includes a structure that violates dimensional regulations for any structure within a specified distance of an airport. The Notification Form specifies that it is for PRLAs only. It does not require any inspection of the property by the Division nor any review or approval of the PRLA by the Division. Pl. Facts, ¶¶ 19-21; Def. Facts, ¶¶ 19-21; see 702 CMR 5.02(1).

20. On July 13, 2016, Roma filled out and submitted a Notification Form, notifying the Division of his intent to use the Property for an PRLA pursuant to G.L. c. 90, § 39B. Pl. Facts, ¶ 22; Def. Facts, ¶ 22; Roma Aff. ¶¶ 17-19, Exh. 4.

21. The Division interprets Paragraph 5 of G.L. c. 90, § 39B, as meaning that a municipality’s attempt to rely upon its zoning bylaw to regulate any portion of an airport or restricted landing area owned by a person is permissible, but only if the bylaw has been submitted to and approved by the Division. The Division’s position is that any bylaw “relative to the use and operation of aircraft” is unenforceable unless approved in writing by the Administrator of the Division. Paragraph 5 does not explicitly differentiate between commercial use and non-commercial private use. Pl. Facts, ¶ 13; Def. Facts, ¶ 13.

22. Since the most recent 1985 amendment to G.L. c. 90, § 39B, adding Paragraph 5, the Division (or its predecessor) has reviewed approximately 36 local laws regulating the operation and use of aircrafts, approving approximately 3 and denying approximately 11, with the remaining requests withdrawn or no action taken. Pl. Facts, ¶ 14; Def. Facts, ¶ 14.

23. The Division has established no criteria for its review of local regulations, other than that the regulation must be consistent with the Division’s mission of promoting aeronautics consistently with the interest in public safety. Pl. Facts, ¶ 24; Def. Facts, ¶ 24.

24. The Town has not submitted the Bylaw for review and approval by the Division. Pl. Facts, ¶ 15; Def. Facts, ¶ 15.

Discussion

The outcome of this case turns on whether the decision reached by the Appeals Court in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), is controlling. Roma submits that it is. Roma argues that Hanlon is directly applicable, binding authority on the proper interpretation of G.L. c. 90, § 39B and the legal effect of a municipality’s failure to obtain approval from the Division, as required by Paragraph 5, before adopting a local bylaw regulating the use or operation of aircrafts on airports or restricted landing areas. Based on Hanlon, Roma claims such enforcement actions by towns must be annulled since they exceed municipal zoning authority and frustrate the legislative intent in § 39 aimed at “developing and promoting aeronautics within the commonwealth.” Conversely, the Board asserts that Paragraph 4’s express language exempts non-commercial PRLAs from the approval process required by Paragraph 5. Under this interpretation, municipalities retain the authority to establish bylaws that restrict or regulate the use of aircraft on non-commercial PRLAs without requiring prior approval from the Division. The Board maintains that the decision in Hanlon, while binding precedent, is not as clear cut as argued by Roma.

In Hanlon, the Appeals Court interpreted Paragraphs 4 and 5 of G.L. c. 90, § 39B. Paragraph 4 of Section 39B provides:

This section shall not apply to restricted landing areas designed for non- commercial private use, not 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 nor non-commercial private use shall construct and maintain said restricted landing area in such manner as shall not endanger the public safety.

Paragraph 5 of Section 39B provides:

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 [Division] and shall not take effect until approved by the [Division].

G.L. c. 90, § 39B, fourth-fifth par. The Appeals Court was left to consider whether Paragraph 5, read in conjunction with Paragraph 4, permitted a municipality to ban non-commercial PRLAs without requiring prior approval from the Division. Hanlon, 89 Mass. App. Ct. at 394. The plaintiff had registered his property with the FAA as a helipad, and also registered the property as a non-commercial PRLA with the Division. He neither sought nor received any approval from the town with respect to the PRLA. Id. at 393. The town bylaw stated that land may not be “used except as set forth in the . . . Table of Use Regulations,” and further provided that “[a]ny . . . use of premises not herein expressly permitted is hereby prohibited.” The Table of Use Regulations contained no mention of the operation of aircraft on non-commercial or private airfields. Id. The town building commissioner ordered the plaintiff to cease and desist from using the PRLA on his property since such use was not set forth in the bylaw. The plaintiff appealed the order to the town zoning board of appeals, which upheld the cease and desist order. The plaintiff appealed the zoning board’s decision to the Land Court. The Land Court (Speicher, J.) affirmed the zoning board after finding that Paragraph 4 explicitly exempted PRLAs from Paragraph 5’s requirement of the Division’s approval of municipal bylaws or regulations intended to regulate PRLAs. Hanlon v. Sheffield Zoning Bd. of Appeals, 23 LCR 181 , 184-185 (2015). [Note 2] The Appeals Court, however, disagreed.

In interpreting the relevant provisions of the statute, the Appeals Court noted that the application of Paragraph 4 to Paragraph 5 of § 39B “creates a serious incongruity.” Id. at 395. The court stated that Paragraph 5 was the only provision in the statute that refers to any municipal power to regulate private non-commercial landing areas. Id. While acknowledging that Paragraph 4 exempts non-commercial PLRAs from every provision contained in all six paragraphs of § 39B, whether the provision was enacted at the same time or decades later, the court determined that applying the exemption of Paragraph 4 to Paragraph 5 “would eliminate the only statutory basis for a town’s regulation of private noncommercial landing areas.” Id. To avoid interpreting the statute as declaring that there is no basis for any municipal regulation of non-commercial PLRAs, the court decided that Paragraph 4 only applied to the preceding three paragraphs, and not to Paragraph 5. Id. As a result of the Appeals Court’s decision, any part of a town bylaw that purports to regulate “the use and operation of aircraft on [an] airport or restricted landing area” cannot take effect until “submitted to the [Division] and . . . until approved by the [Division].” Id. at 396-397.

This case is indistinguishable from Hanlon. As in Hanlon, the Town has a restrictive Bylaw that exempts all uses that are not authorized for the district in which it is located. The Bylaw makes no mention of non-commercial PRLAs. The Town did not seek approval of its restrictive Bylaw from the Division. The Building Inspector issued cease and desist orders in both cases, here, enjoining Mr. Roma from landing his personal helicopter on the Property, which the Board upheld. As such, there is no question that the holding in Hanlon is applicable to the present action.

The Board makes several arguments why summary judgment should enter in its favor despite the court’s ruling in Hanlon. First, the Board contends that because the decision failed to discuss any authority afforded to municipalities to regulate the use of land under the Zoning Act, G.L. c. 40A, the argument that any zoning authority to regulate such areas is preempted by State law is flawed. Though G.L. c. 40, § 21 gives towns and cities the authority to make ordinances and bylaws, those ordinances may not be “repugnant to law.” The concept of State law preemption was codified in Mass. Const. Amend. Art. 2, § 6:

Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight . . . (emphasis added).

See Boston Gas Co. v. City of Newton, 425 Mass. 697 , 699 (1997) (“Municipalities may not adopt by-laws or ordinances that are inconsistent with State law.”). “From the wide scope of the purposes of the Zoning Act, it is apparent that the Legislature intended to permit cities and towns to adopt any and all zoning provisions which are constitutionally permissible, subject, however, to limitations expressly stated in that act or in other controlling legislation.” Sturges v. Town of Chilmark, 380 Mass. 246 , 253 (1980). “To determine whether a local ordinance is inconsistent with a statute, this court has looked to see whether there was either an express legislative intent to forbid local activity on the same subject.” Boston Gas. Co. v. City of Somerville, 420 Mass. 702 , 704 (1995). “Moreover, in some circumstances we can infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute's purpose.” Id.

The Board also points to two prior appellate cases that they argue affirm the authority of municipalities to regulate PRLAs pursuant to their zoning powers. See Town of Harvard v. Maxant, 360 Mass. 432 (1971) (affirming enforcement order issued pursuant to bylaw that prohibited landowner from using his property to land aircraft since it was not a use that was “customarily incidental” to residential use of property); Garabedian v. Westland, 59 Mass. App. Ct. 427 (2003) (upholding town’s right to ban extension of existing airstrip and building of proposed second hanger as not accessory uses to single-family residence). The decision in Town of Harvard v. Maxant involved a property owner who contended that landing an aircraft on his property was not expressly prohibited by the bylaw and was therefore permissive, and alternatively that the landing of an aircraft at his property comprised a lawful, accessory use to his residence. Maxant, 360 Mass. at 436-440. The SJC affirmed the town’s cease and desist order on the grounds that the private landing strip was not an accessory use of residential property. Id. at 439-440. In Garabedian v. Westland, decided in 2003 after the 1985 amendment, the issue was the town’s ability to prevent the construction of a second hanger, expansion of an existing hanger, and the extension of an existing airstrip as non-accessory uses under the bylaw. Garabedian, 59 Mass. App. Ct. at 428-429. The Appeals Court upheld the town zoning board’s denial of a permit for construction of the second hanger and expansion of the first airstrip based on finding that they did not qualify as accessory uses. Id. at 434-438. The court permitted the continued use of the existing hanger and airstrip because any action to stop such use was untimely pursuant to G.L. c. 40A, § 7. Id. at 436-437.

Finally, the Board points to the legislative history of Paragraph 5 of Section 39B. When the Division proposed the legislation that eventually became Paragraph 5 of § 39B, its original draft of the bill was identical to Paragraph 5 as it now appears except that it began with the phrase “notwithstanding any other provision in this section.” The introductory phrase, however, was excised from the bill before it was voted into law. The Board argues that by removing the “notwithstanding” clause, the Legislature intended to preserve the preexisting authority of cities and towns to regulate non-commercial PRLAs without Division approval.

None of these arguments justifies this court’s reaching a conclusion contrary to the clearly applicable holding of Hanlon. The Board’s arguments boil down to asking the court to find that the Appeals Court got Hanlon wrong. Regardless of whether Hanlon was properly decided, this court is constrained to apply the holding of the appellate court to this case. Any argument that Hanlon was incorrectly decided must be left to the Appeals Court or the Supreme Judicial Court. [Note 3]

Accordingly, Hanlon is binding authority on the proper interpretation of G.L. c. 90, § 39B and the legal effect of a municipality’s failure to seek approval from the Division prior to adoption of a local bylaw that regulates the use and operation of aircrafts on non-commercial PRLAs. Since Paragraph 5 is directly applicable under the circumstances of this case, the Board’s Decision and the Building Inspector’s cease and desist Order are invalid because the Bylaw’s implicit ban on the use of private aircrafts and non-commercial PRLAs has not been approved by the Division. Because the Board lacked authority to enforce any regulation restricting Mr. Roma’s use of his helicopter at the Property, it need not be decided whether the Bylaw’s implied ban on the use of a helicopter to access a lawful use, without rational basis, exceeded the constitutional limits of the Town’s police power and violated the Due Process and Equal Protection provisions of the Federal and State Constitutions, as applied to Roma.

Conclusion

For the foregoing reasons, the Plaintiff’s Motion to for Summary Judgment is ALLOWED, and Defendant’s Motion for Summary Judgment is DENIED. Judgment shall enter annulling the Order and the Decision.

SO ORDERED