THE COLLINGS FOUNDATION vs. STOW ZONING BOARD OF APPEALS, MISC 15-000369

These above-captioned cases, presenting the same dispositive issue but not formally consolidated, are G.L. c. 40A, § 17 appeals of decisions by the Stow Zoning Board of Appeals (the "ZBA") upholding an order of the town's building inspector directing the plaintiffs to cease-and-desist operations at the private airfield on their property on the ground that such use is not permitted under the town's zoning bylaw. [Note 1] G.L. c. 90, § 39B requires a municipality to obtain the approval of the Aeronautics Division of the Massachusetts Department of Transportation ("Aeronautics Division") before regulating the use or operation of aircraft on airfields. Here, the bylaw prohibits airfields entirely, everywhere in the town, and the town applied for approval of that prohibition, which the Aeronautics Division denied. The plaintiffs have moved for summary judgment on the basis that the bylaw is thus invalid. [Note 2] On the undisputed facts, as a matter of law, I agree with the plaintiffs and find and declare that the ZBA erred in upholding the cease-and-desist order. The ZBA's decision is vacated, and these matters are remanded back to the ZBA for a decision consistent with the findings set forth below.

Background

Summary judgment may be entered when the facts material to the claims at issue are not in genuine dispute and the moving party is entitled to judgment on those claims as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002). Except as otherwise noted, the following facts are not genuinely in dispute.

Airport and Landing Field Use under Stow's Zoning Bylaw

Airport and landing field use was allowed under Stow's zoning bylaw in a number of the town's zoning districts until 1982, when the bylaw was amended to delete it as a permitted use anywhere in the town. See Affidavit of Craig Martin, P.E. (not dated) ("Martin Affidavit") at 2, ¶¶ 5-6. Because uses not specifically named in the bylaw text are prohibited, airport and landing field use is thus unlawful. See Town of Stow Zoning Bylaw Including Amendments through May 12th, 2015 §3.10 ("Table of Principal Uses"). At some point after the 1982 amendment, the Town submitted the amended bylaw to the Aeronautics Division for review pursuant to G.L. c. 90, § 39B. See Affidavit of Robert Collings dated May 27, 2016 ("Collings Affidavit II") at 4, ¶ 8. By letter dated February 11, 2015, the Aeronautics Division indicated that it "does not approve the current Stow Zoning Bylaw to the extent that the Town seeks to regulate aviation activity within its boundaries." See Collings Affidavit II at Exhibit A. The Aeronautics Division subsequently reiterated its disapproval of the bylaw in a letter to the town administrator dated May 5, 2015, stating "in the opinion of the Aeronautics Division, any orders originating from this bylaw attempting to regulate aeronautical activity within the Town are invalid and unenforceable." See Collings Affidavit II at Exhibit B.

The Plaintiffs' Airfield

Plaintiffs Robert and Caroline Collings own and reside at the property at 137 Barton Road in Stow (the "Collings property"). See Collings Affidavit II at 1-2, ¶¶ 1 & 2. In 1977, Mr. and Mrs. Collings incorporated The Collings Foundation (the "Foundation"), a non-profit organization, with the announced purpose of "support[ing] living history' events involving transportation." Collings Affidavit II at 1, ¶ 2. The Foundation owns and operates an aviation museum in a 44,000-square-foot hangar that was built in 1985 on the Collings property. See Affidavit of Robert Collings dated April 13, 2016 ("Collings Affidavit I") at 2, ¶ 2. Adjacent to the museum, there is a grassy airfield that is 250 feet wide and 2,250 feet long. See Affidavit of Robert Collings dated April 13, 2016 ("Collings Affidavit I") at 2, ¶ 2; Collings Affidavit II at 2, ¶ 2. The Foundation owns the land on which the museum is located, and part of the land on which the airfield is situated. See Collings Affidavit I at 2 ¶ 2. Mr. and Mrs. Collings own the remaining airfield property, which they have leased to the Foundation. See id. TheFoundation sub-leases that land, as well as its own portion of the airfield, to plaintiff The Collings Foundation, Inc. (the "Corporation"). [Note 3] See id.

There are a number of vintage aircraft in working-order condition on display in the aviation museum, including airplanes from World War II and before World War I. See Collings Affidavit II at 2, ¶ 3. The airfield is used in connection with the museum, [Note 4] primarily to fly the aircraft out and back for inspection and maintenance and to maintain pilot proficiency in flying them, and has been registered annually with the Aeronautics Division as a non-commercial "private restricted landing area" ("PRLA") since 1984. [Note 5]

See Collings Affidavit I at 2, ¶ 2; Collings Affidavit II at 2-4, ¶¶ 2-3 & 7; Affidavit of Rodger E. Burkley, Lt. Colonel, USAF (RET) (not dated) ("Burkley Affidavit") at 4, ¶ 20. Since 2002, the Foundation has also hosted three annual "living history events" at the airfield and museum, at which vintage aircraft are used in races and simulated aerial battles. See Collings Affidavit II at 2-3, ¶¶ 3-5. Visitors also have the opportunity to fly as passengers in the vintage planes, for a charge. See Collings Affidavit II at 3, ¶ 6; Martin Affidavit at 3, ¶ 13. The events draw thousands of paying visitors. See Martin Affidavit at 2, ¶ 10. None of this is popular with the neighbors, who object to the noise and disruption this causes.

On March 26, 2015, Stow's building inspector issued a cease-and-desist order prohibiting use of the airfield. See Collings Affidavit II at 2, ¶ 3. The town's ZBA subsequently upheld the cease-and-desist order in an August 31, 2015 written decision filed with the town clerk on September 2, 2015, relying on the bylaw's prohibition of airport or landing field use. [Note 6] These cases are the plaintiffs' G.L. c. 40A, § 17 appeals of the ZBA's decision. [Note 7]

Further relevant facts are set forth in the Analysis section below.

Analysis

The plaintiffs contend that the ZBA's decision upholding the building inspector's cease-and-desist order must be vacated because the Aeronautics Division has not approved the bylaw (prohibiting airport and landing field uses) it is based on. The ZBA maintains that no such approval is required. As mandated by the holding in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), I find and rule that the plaintiffs are correct. The ZBA's decision is legally untenable, and thus must be vacated. See Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 485-486 (1999).

G.L. c. 90, §§ 3552 governs the development and regulation of airports within the Commonwealth. Section 39 of c. 90 grants the Aeronautics Division [Note 8] "general supervision and control over aeronautics." Hanlon, 89 Mass. App. Ct. at 395-396. The legislature vested the Aeronautics Division with such authority:

[f]or the purpose of carrying out the provisions of sections thirty-five to fifty-two, inclusive, and for the purpose of protecting and insuring the general public interests and safety, and the safety of persons receiving instructions concerning, or operating or using, aircraft and of persons and property being transported in aircraft, and for the purpose of developing and promoting aeronautics within the commonwealth . . . .

G.L. c. 90, § 39. See also G.L. c. 90, § 40 (detailing purposes and powers of Aeronautics Division). [Note 9] The Aeronautics Division's jurisdiction over aeronautics is broad, and includes the responsibility to enforce §§ 3552 and "all orders, rules and regulations made pursuant thereto and other laws of the commonwealth relating to aeronautics." [Note 10] G.L. c. 90, § 40. See Hanlon, 89 Mass. App. Ct. at 395-396 (discussing "breadth of jurisdiction delegated to the [Aeronautics Division] by the Legislature").

G.L. c. 90, § 39B details the Aeronautics Division's authority over municipal regulation of airports and restricted landing areas, [Note 11] as well as the establishment of, and alteration to, such sites by municipalities. [Note 12] The first three paragraphs of § 39B provide that a municipality may not establish or operate an airport or restricted landing area without a certificate of approval from the Aeronautics Division, and then set forth a procedure for obtaining that approval. See G.L. c. 90, § 39B, paras. 1-3. The two succeeding paragraphs of § 39B (the fourth and the fifth) are arguably incongruent. The fourth paragraph provides, in relevant part, "[t]his section shall not apply to restricted landing areas designed for non-commercial private use . . . ." G.L. c. 90, § 39B, para. 4 ("Paragraph Four"). The fifth paragraph, inserted by the legislature in 1985, decades after Paragraph Four was added in 1946, 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 commission and shall not take effect until approved by the commission.

G.L. c. 90, § 39B, para. 5 (emphasis added) ("Paragraph Five"). [Note 13] Thus, Paragraph Four, if read literally, seems to exempt non-commercial private restricted landing areas from the regulatory scheme in § 39B, while Paragraph Five, in seeming contradiction, requires Aeronautics Division approval of municipal regulations of such landing areas before those regulations can legally take effect.

The Appeals Court addressed this "serious incongruity" in Hanlon, by holding that Paragraph Four of § 39B does not apply to Paragraph Five. See Hanlon, 89 Mass. App. Ct. at 395-396. In Hanlon, the Town of Sheffield's zoning enforcement officer ordered the plaintiff to cease and desist use of the private landing strip on his property. See id. at 393. Because (as here) the town's zoning bylaw prohibited uses not expressly permitted therein and did not mention non-commercial or private airfields, such use was prohibited. See id. Sheffield, however, had never submitted the bylaw to the Aeronautics Division for approval. See id. The plaintiff appealed the town's zoning board of appeals' decision upholding the cease-and-desist order to the Land Court, which affirmed that decision and declared the bylaw valid. See id. 393-394.

The Appeals Court reversed the Land Court's decision, reasoning, "were we to apply the exemption of the fourth paragraph of § 39B to the fifth paragraph, it would eliminate the only statutory basis for a town's regulation of private noncommercial landing areas." [Note 14] Id. at 395. To effectuate the legislature's intent to permit municipal regulation of such sites, subject to approval by the Aeronautics Division, the court interpreted the word "section" in Paragraph Four to refer to only those portions of § 39B in effect when that paragraph was added to the statute, but not to Paragraph Five, which was inserted decades later. See id. at 395-396. The court thus held that "any part . . . of the town zoning 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 [Aeronautics Division] and . . . until approved by the [Aeronautics Division].'" Id. at 396-397.

After Hanlon, the Land Court (Foster, J.) revisited § 39B in Roma, III, Ltd. v. Christopher, in which the plaintiff appealed the Town of Rockport's zoning board of appeals decision upholding the town's building inspector's order directing the plaintiff to stop using his property as a helicopter landing site. See Roma, III, Ltd. v. Christopher, Land Court Case No. 15 MISC 000074 (RBF), 2016 WL 6138651, at *3-*4 (Oct. 19, 2016). There, as here, the use of private aircraft and private landing areas was banned by the town's zoning bylaw. See id. at *8. Rockport, however, like Sheffield in Hanlon, had never submitted that bylaw to the Aeronautics Division for approval. See id. The Land Court held that the cease-and-desist order was invalid because the Aeronautics Division had not approved the town's bylaw, acknowledging that "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 [Aeronautics] Division prior to adoption of a local bylaw that regulates the use and operation of aircrafts on non-commercial PRLAs." [Note 15] See id.

I share my colleague's concerns about Hanlon, [Note 16] but too am bound by its holding. Where, as here, a municipality's bylaw "purports to regulate the use and operation of aircraft on an airport or restricted landing area[,]" it "cannot take effect until submitted to the [Aeronautics Division] and . . . until approved by the [Aeronautics Division]." Hanlon, 89 Mass. App. Ct. at 397. It is undisputed that Stow's zoning bylaw prohibits uses not referenced therein, and that the bylaw contains no provision regarding the use or operation of aircraft on an airport or restricted landing area. Such use is therefore prohibited by the bylaw. It is also undisputed that the Aeronautics Division has not approved Stow's bylaw, and, in fact, has explicitly stated that it did not approve it. Because Aeronautics Division approval of the bylaw is a condition precedent to its enforceability, and, because no such approval has been granted, the ZBA erred in upholding the cease-and-desist order. See id.

Stow contends that because its bylaw predates the addition of Paragraph Five to § 39B, the bylaw is exempt from that paragraph's Aeronautics Division approval requirement. I disagree. Whether Stow's prohibition of airport and landing field use was ever a valid municipal action is tenuous, at best, because its bylaw prohibiting such use predates Paragraph Five, which the Appeals Court has ruled is the "only statutory basis for a town's regulation of private noncommercial landing areas." Hanlon, 89 Mass. App. Ct. at 395. Even assuming the bylaw was at some point valid, Stow's characterization of the application of Paragraph Five to Stow's bylaw as impermissibly "retroactive" is not persuasive. [Note 17] At this point, the question of enforcement of the bylaw with respect to the Collings property is solely prospective.

Conclusion

For the foregoing reasons, plaintiffs' second motion for summary judgment (based on Hanlon) is GRANTED, and plaintiffs' first motion for summary judgment (based on res judicata) is DENIED. The ZBA's decision is VACATED, and the matter is REMANDED back to the ZBA for a decision consistent with this decision.

Judgments shall enter accordingly.

[Note 1] The two cases are appeals from separate aspects of the same ZBA decision (Aug. 31, 2015). Case No. 15 MISC 000370 (the order in which they were filed in this court reverses the order in which they were addressed by the board) is the plaintiffs' appeal of the board's refusal to overturn the building inspector's denial of their request for reconsideration of the cease and desist order. Case No. 15 MISC 00369 is the plaintiffs' appeal of the board's refusal to overturn the building inspector's denial of their request to stay the cease and desist order. Both present the same underlying issue the validity of the cease and desist order itself which the plaintiffs challenge on two bases: (1) that the ability of the airfield to operate was res judicata as a result of an earlier action between the parties, and (2) that regardless of res judicata, grandfathering, or anything else, the current town bylaw prohibiting the operation of airfields violates G.L. c. 90, § 39B because it has not been approved indeed, it was explicitly rejected by the Massachusetts Aeronautics Division of the Department of Transportation.

[Note 2] The plaintiffs filed two separate motions for summary judgment. The first motion, filed on April 19, 2016, is premised on a theory of res judicata. The plaintiffs filed the second motion on June 20, 2016, premised on the invalidity of the bylaw prohibition itself, after the Appeals Court decided Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016). For the reasons stated herein, I deny the first motion, but grant the second.

[Note 3] The Corporation and Foundation are different organizations. The record suggests that the Foundation is more involved with the aviation museum and airfield at issue in this case than the Corporation, which appears to be focused on other Collings' endeavors. Why the ownership and operation of the museum and airfield is structured this way was not explained and, in any event, is immaterial to the resolution of this case.

[Note 4] The registered airfield use on the Collings property thus commenced after the 1982 bylaw amendment. See Martin Affidavit at 2, ¶ 7.

[Note 5] The defendants contend that, at least on occasion, the plaintiffs' use of the airfield is commercial rather than private, and thus outside the scope of a private landing field. Although the parties dispute the nature of the plaintiff's use of the airfield, that is not a material fact precluding summary judgment based on Hanlon. As set forth herein, a municipal regulation regarding the use of aircraft on airports or restricted landing areas is not enforceable unless approved by the Aeronautics Division. See Hanlon, 89 Mass. App. Ct. at 395-396.

[Note 6] The plaintiffs contend that the ZBA's decision is barred by the doctrine of res judicata due to a prior action filed in 2003 in the Middlesex Superior Court (Case No. 03 CIV 3494E) regarding the use of their airfield (the "2003 case"). See Collings Affidavit I at 2-3, ¶7. As set forth herein, I find that there are genuine issues of material fact regarding the nature of the airfield use at issue in that case and in the present actions that preclude summary judgment based on res judicata. However, I rule on other grounds that summary judgment is warranted in these cases.

"Res judicata' is the generic term for various doctrines by which a judgment in one action has a binding effect in another. It comprises claim preclusion' and issue preclusion.'" Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). "A claim is the same for res judicata purposes if it is derived from the same transaction or series of connected transactions." St. Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393 , 399 (1991).

The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the [prior] action even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies. The doctrineis based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.

Heacock, 402 Mass. at 23 (internal quotations and citations omitted). "The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005) (internal quotations omitted). For issue preclusion to apply:

a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication. Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment.

In the 2003 case, neighbors of the Collings property, Carol and Mark Zarrow, appealed the ZBA's August 11, 2003 decision upholding the building inspector's decision against ordering all airplane takeoff and landing operations on the airfield to cease and desist. See Collings Affidavit I at 2-3, ¶¶ 3-7 & Exhibits A-E. Mr. and Mrs. Collings intervened in that action and filed an answer and counterclaim, asserting, inter alia, that the Foundation's use of the airfield was exempt from local zoning regulations pursuant to G.L. c. 40A, §3 (the "Dover Amendment"). See Collings Affidavit I at 3, ¶¶ 8-9 & Exhibits F-G. Mr. and Mrs. Collings filed a motion to dismiss the action on grounds that it was barred by laches, and that the airfield was a protected educational use under the Dover Amendment. See Collings Affidavit I at 3, ¶ 10 & Exhibit H. The defendant ZBA joined in and assented to the motion, which the Zarrows opposed and the court denied. See Collings Affidavit I at 3, ¶¶ 11-13 & Exhibits I-K. The ZBA and Mr. and Mrs. Collings then later filed a joint motion for summary judgment, which contended, inter alia, that the airstrip was exempt from zoning (1) as an educational use under the Dover Amendment, and (2) until the Massachusetts Aeronautics Commission approved the Town's bylaw under G.L. c. 90, §39B. See Collings Affidavit I at 3-4, ¶ 14 & Exhibits L & M. On November 30, 2004, the parties entered into a stipulation that stated "[p]ursuant to Rule 41(a)(1)(ii) of the Massachusetts Rules of Civil Procedure, the Parties hereby stipulate that all of the claims made by the Plaintiffs in this action shall be dismissed. This dismissal is with prejudice and is intended to operate as an adjudication on the merits." See Collings Affidavit I at 4, ¶ 15 & Exhibit N.

According to Mr. Collings, the airfield has always been used exclusively in connection with and for the benefit of the Foundation's museum, and there was no material change in the airfield's use between the time of the 2003 case and the building commissioner's 2015 cease-and-desist order at issue in these cases. See Collings Affidavit I at 4, ¶ 16. The ZBA disagrees, contending that use of the airfield has changed substantially since the 2003 case. A number of local residents maintain that flights have increased in frequency and volume, and that activities at the airfield have been increasingly disruptive to the neighborhood. See Martin Affidavit at 4, ¶¶ 19-21; Burkley Affidavit at 2, ¶ 7; Affidavit of Donald P. Hawkes dated July 23, 2016 ("Burkley Affidavit") at 2, ¶ 12; Affidavit of Linda S. Cornell dated July 25, 2016 ("Cornell Affidavit") at 2, ¶ ¶ 9-10.

Whether the use at issue in the cases is the same is a disputed material fact that precludes summary judgment based on res judicata.

[Note 8] The statute provides, "[t]he commission shall have general supervision and control over aeronautics." G.L. c. 90, § 39 (emphasis added). "Commission" is defined as "the Massachusetts aeronautics division." G.L. c. 90, § 35(m).

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.

The [Aeronautics Division] may (1) Co-operate with the federal government, and with any agency or department thereof, in the acquisition, establishment, construction, enlargement, improvement, protection, equipment, maintenance and operation of airports and other air navigation facilities within the commonwealth, and comply with the provisions of federal law, and any rules and regulations made thereunder, for the expenditure of federal funds for or in connection with such airports or other navigation facilities; (2) accept, receive and receipt for federal funds, and also other funds, public or private, for and in behalf of the commonwealth or as agent for any subdivision thereof, for the acquisition, establishment, construction, enlargement, improvement, protection, equipment, maintenance and operation of airports and other air navigation facilities within the commonwealth or such subdivisions, or jointly; provided that, if federal funds are received for such work, such funds shall be accepted upon such terms and conditions as may be prescribed by federal law and any rules and regulations made thereunder; (3) advise and co-operate with any political subdivision of this state or of any other state in all or any matters relating to aeronautics. For such purpose the commission may confer with, or hold joint hearings with, any federal or state aeronautical agency in connection with any provision of sections thirty- five to fifty-two, inclusive.

The commission shall enforce sections thirty-five to fifty-two, inclusive, and all orders, rules and regulations made pursuant thereto and other laws of the commonwealth relating to aeronautics, and shall have and may exercise for any or all of such purposes such powers and authority as may be reasonably necessary therefor. Every state, county and municipal officer charged with the enforcement of laws in their respective jurisdiction shall assist and co-operate with the commission in such enforcement.

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.

A "restricted landing area" is "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(f).

Each city or town before acquiring any property within the commonwealth for the purpose of establishing, constructing, enlarging or improving thereon an airport or restricted landing area, shall apply to the commission for a certificate of approval of the site. Before granting a certificate of approval for an airport or restricted landing area, the commission may, and upon the request of a resident of such city or town shall, hold a public hearing in the city or town where such airport or restricted landing area is to be located and at least seven days' notice of such hearing shall be published by the commission in a newspaper of general circulation in such city or town. The commission may authorize one member or the director to hold such a hearing.

No such certificate of approval of a site for an airport or restricted landing area shall be issued by the commission if such airport or area is situated on any lake or pond outside the metropolitan area, unless such site has previously been approved by the mayor and city council of the city, or at an annual or special town meeting of the town, within which the same is located.

All airports, restricted landing areas, and air navigation facilities shall conform to plans and specifications approved by the commission and shall not be in conflict with the state airport plan and no such airport, restricted landing area or air navigation facility shall be maintained or operated unless a certificate of approval of the maintenance and operation thereof is granted and is continued in force by the commission; provided, that no such certificate of approval with respect to a restricted landing area or air navigation facility on which public funds have been expended shall confer an exclusive right for the use thereof.

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.

All approvals or licenses of airports or restricted landing areas granted by the commission prior to the effective date of this section, shall remain in effect.

[Note 13] "The language of the fifth paragraph applies to all landing facilities; it does not distinguish between commercial landing areas and private noncommercial landing areas." Hanlon, 89 Mass. App. Ct. at 394.

The fifth paragraph is a legislative delegation to the division to approve or disapprove municipal ordinances and bylaws regulating an airport or restricted landing area owned by a person.' The statute as a whole contains no other provision that refers to any municipal power to regulate private noncommercial landing areas other than the language in § 39B, fifth par. The fifth paragraph allows for division review of such municipal rules and regulations, and thereby implies the permissibility of those rules and regulations in the first place.

[t]he Hanlon decision may merit revisiting. The Appeals Court decided Hanlon without the benefit of argument from the Town of Sheffield, which did not file a brief or appear at oral argument. The analysis in Hanlon appears at odds with the understanding of the statute implicit in a series of decisions in the Appeals Court, the Superior Court, and this court, including Garabedian v. Westland, 59 Mass. App. Ct. 427 (2003); Boch v. Edgartown Zoning Bd. of Appeals, 23 LCR 175 (2015); Goddard v. Congregation of the Sisters of Saint Joseph, 15 LCR 592 (2007); Farrar v. Zoning Bd. of Appeals of Spencer, No. 912430, 2004 Mass.Super. LEXIS 121 (Mass.Super.Mar.16, 2004); and the decision overruled in Hanlon, Hanlon v. Sheffield Zoning Bd. of Appeals, 23 LCR 181 (2015).

Roma, III, Ltd. v. Christopher, Land Court Case No. 15 MISC 000074 (RBF), 2016 WL 6138651, at *8 n.3 (Oct. 19, 2016).

[Note 16] See n.15, supra, and the discussion in my prior order in this case dated June 8, 2016 (granting plaintiffs' motion for preliminary injunction).

[Note 17] The Appeals Court rejected a similar argument in Pearson v. Town of Plymouth, 44 Mass. App. Ct. 741 (1998). In Pearson, a Town of Plymouth bylaw prohibited certain airplanes from operating from or upon any pond in the town, except in an emergency. See id. at 741. After the bylaw was approved, the legislature added a provision to G.L. c. 131, § 45 (the "Great Pond Statute") that required municipalities to first obtain the aeronautics commission's approval of laws regulating the use and operation of aircraft equipped with floats on great ponds. See id. at 742. The plaintiff requested a declaration that the town could not enforce the bylaw. See id. The town contended that it would be an impermissible "retroactive" application of the statute if it was applied to its bylaw. See id. The court disagreed, opining that "nullification of the bylaw would not be a forbidden retroactive' application of the [statute]" and that the only issue was whether the bylaw was enforceable without the commission's approval after the legislature adopted that requirement. Id. The court noted that even if it construed the requested relief as "retroactive," such an application of the statute would be permissible because the statute was remedial and no prior exercise of a vested right would be adversely affected (the complaint did not, for example, seek relief from a penalty or fine). See id. The court concluded that the legislature intended to preclude local entities from unilaterally regulating aircraft with floats on great ponds, and thus declared Plymouth's bylaw, to the extent it did so, invalid. See id. at 744-745.

Similarly, in these cases, the sole issue is whether Stow's bylaw, which has not been approved by the Aeronautics Division, is presently enforceable against the plaintiffs. Under Hanlon, it is not.

THE COLLINGS FOUNDATION, THE COLLINGS FOUNDATION INC., ROBERT COLLINGS and CAROLINE COLLINGS v. EDWARD TARNUZZER, CHARLES BARNEY, WILLIAM BYRON, BRUCE FLETCHER, RUTH KENNEDY SUDDUTH, MICHELLE SHOEMAKER, ANDREW DEMORE, LEE HERON and MARK JONES as members of the Stow Zoning Board of Appeals.

MISC 15-000369

November 7, 2016

Middlesex, ss.

LONG, J.

DECISION