MISC 16-000727

September 12, 2018

Plymouth, ss.



In this action, Plaintiff appeals, pursuant to G. L. c. 40A, § 17, a decision of the Town of Plymouth Zoning Board of Appeals (ZBA) upholding the denial by the town's Director of Inspectional Services (Building Commissioner) of Plaintiff's application for a "zoning permit." Plaintiff seeks to construct certain recreational facilities and a parking lot on its property. To ready the site for the proposed construction, Plaintiff proposes to extract approximately 475,000 cubic yards of sand and gravel (Material) from the Property over a two- to three-year span.

Plaintiff asserts the proposed uses of its property are allowed by-right in the Rural Residential zoning district in which its property is located, and that the extraction of Material is also allowed by-right because it is "incidental to and required" in connection with the construction of the allowed uses, pursuant to Plymouth Zoning Bylaw (Bylaw) Section 205-18(F)(1)(b). The Building Commissioner, however, concluded that a special permit was needed for the extraction pursuant to Sections 205-18(F) and (G) of the Bylaw, and denied Plaintiff's application. The ZBA upheld the denial in a decision (Decision) issued November 30, 2016. [Note 1]

Four days of trial took place in February 2018. Richard Churchill, a professional civil engineer and president of Indianhead Realty, LLC; Joshua Safdie, a licensed architect; Albert Paul McAuliffe, the Building Commissioner; Lee Hartmann, the director of planning and development for the Town; and Gary David James, a licensed professional engineer, were called by Plaintiff. Eric Las, a licensed professional engineer, testified for the Town. Richard Sampson, a licensed architect, and Walter E. Morrison, III, sole proprietor of Morrison's Home & Garden and managing trustee of Federal Furnace Cranberry, testified for Interveners Donald P. Quinn and Judith Quinn (Interveners or the Quinns). [Note 2] Twenty-three exhibits were entered in evidence, and eight additional exhibits were entered post-trial after further submissions addressing their relevance. [Note 3] The court took a view with counsel and the parties prior to trial.

Following trial, this court concludes the ZBA's Decision was legally tenable, and was not arbitrary or capricious, and this court therefore will affirm the ZBA's Decision, based on the following facts:


1. Plaintiff is a duly organized and existing domestic corporation with a principal place of business at 1929 State Road in Plymouth (Property), located in a Rural Residential zoning district. Richard Churchill is the president of Plaintiff.

2. The Property at issue in this case includes "Indianhead Resort," described as a recreational campground. Indianhead Resort came into existence by virtue of a special permit issued on July 26, 1968 for a "trailer park" use. The Property consists of seventy acres, approximately forty-five of which is used as a campground operated by Indianhead Resort. Plaintiff's proposed project involves the remaining acreage.

3. The Interveners own and reside on property known as and numbered 188 Ellisville Road in Plymouth (Interveners' Property), located within three hundred feet of the Property in the same Rural Residential zoning district.

Commercial and Industrial Zoning Application

4. On August 15, 2016, Plaintiff filed with the Building Commissioner a Commercial and Industrial Application (Application) for a zoning permit, together with Plans (Plans). Plaintiff also submitted site plans with the Application. [Note 4]

5. Plaintiff stated in a letter accompanying the Application that it sought to construct "an accessible outdoor recreation area, including playing and sports areas, and an associated accessible foot path." The accessible foot path (Foot Path) shown on the Plans connects to an existing cart path on the Property. The proposed recreation area and path will cover 6.33 acres. The total area to be disturbed, excavated and graded is 11.79 acres. The Application included an excavation plan proposing the removal of 475,000 cubic yards of Material from the Property (Together, the "Project.")

6. The Building Commissioner denied the Application on September 19, 2016, stating that Plaintiff needed a special permit pursuant to §§ 205-18(F) and (G) for the removal of the 475,000 cubic yards of material. [Note 5]

7. After the denial, on September 22, 2016, Plaintiff subdivided the lot that was the subject of the Application into three new lots, and granted a mortgage on one of the lots. [Note 6] For the purposes of this case, the court views the "Property" as it was shown on the Application (at the time Plaintiff filed the Application, it depicted Lot 6A-4 as the boundaries of the Property).

a. Lot 6A-4 was subdivided into Lots 6A-7, 6A-6, and 6A-5, shown on Exhibit 12. The existing campground, the proposed parking area, and portions of the proposed recreational complex (such as portions of the baseball field, recreational field and the proposed Foot Path) are located on Lot 6A-7. See Tr. vol. 4, 97: 4-25.

b. On October 5, 2016, Plaintiff recorded a mortgage encumbering Lot 6A-7, as shown on the subdivision plan. See Exhibit 13; Tr. vol. 4, 103: 24-104: 5.

Appeal to the ZBA and the Land Court

8. On September 29, 2016, Plaintiff appealed the Building Commissioner's denial to the ZBA. On November 7, 2016, Plaintiff appeared before the Planning Board concerning its appeal. The next day the Planning Board issued a recommendation to the ZBA that it affirm the Building Commissioner's denial.

9. The ZBA held a hearing on November 16, 2016, and denied Plaintiff's appeal by Decision dated and filed with the Town Clerk November 30, 2016. This appeal followed.

Plaintiff's prior applications relating to the Property

10. On January 10, 2011, Plaintiff filed a zoning permit application with the Building Commissioner to use a portion of the Property for a "maintenance barn [and] recreational fields with supporting equipment shed." Plaintiff did not appeal this denial to the ZBA.

11. On September 16, 2013, Plaintiff filed a zoning permit application to use a portion of the Property for a "maintenance barn, recreational/athletic field with supporting equipment shed." The Building Commissioner denied this application on October 8, 2013. Plaintiff did not appeal this denial to the ZBA.

Relevant Bylaw Provisions

12. Section 205-40(B) defines the uses allowed in a Rural Residential zoning district, in which the Property is located. Some of the allowed uses are as follows: "outdoor recreation, including play and sporting areas, nature study . . . day camps [and] fishing[.]"

13. Section 205-40(D) outlines the "special permit uses subject to environmental design criteria" in a Rural Residential district. Under § 205-40(D)(1), "sand and gravel quarries and similar extractive industries, subject to § 205-18," are allowed by special permit. Under § 205-40(D)(3), recreational campgrounds are also allowed by special permit.

14. Section 205-40(E) outlines the "prohibited uses" in a Rural Residential district, including "any commercial or industrial uses, except as specifically provided for above." (italics added.)

15. Section 205-18 refers to "Natural features conservation requirements." Section 205- 18(B)(1) outlines the requirements and procedures for the Building Commissioner's review of applications under this section.

16. Under § 205-18(F)(1)(b), the "[r]emoval of soil, gravel, or quarried stone in excess of 10 cubic yards for sale, trade, or other consideration, or for use on a separate site, is prohibited except . . . [w]hen incidental to and required in connection with the construction of an approved use or structure[.]" (underlining added).

17. Section 205-18(F)(3) defines "incidental to and required" as "only . . . the amount of material reasonably necessary to allow a use to be conducted or a structure or subdivision road to be constructed in compliance with the applicable legal requirements for such use, structure, or road." (underlining added).

The Project

18. Plaintiff proposes to construct on the Property an outdoor recreational facility, including a baseball diamond, a BMX bike park, playing and sporting areas/fields, a parking lot, and a Foot path. The proposed Project site currently consists of a borrow pit and a wood lot, and is bordered by a cranberry bog, a paved access road, and Old Sandwich Road, a public way, with frontage on Route 3A (also known as State Road). State Road has a posted speed limit of fifty miles per hour and has no sidewalks.

19. The borrow pit has been in existence since 1970, and the sand from it is currently used for maintaining the campground roads and beach area.

20. The paved access road runs approximately 960 feet from State Road to the existing Indianhead Resort campground. Its paved width is approximately 26 feet. A cranberry bog is located at the end of the access road. As shown on the Plans, the access road will provide access to a proposed gravel parking lot. [Note 7]

21. The Property has an existing cart path (Cart Path) that runs east to west from Old Sandwich Road. It is an unimproved dirt road of natural material. Plaintiff does not propose improving the Cart Path as part of the Project. Plaintiff does, however, plan to construct the Foot Path as an accessible nature trail extending from the gravel parking lot and connecting with the Cart Path.

22. The intersection of State Road and Old Sandwich Road is located approximate thirty yards from the intersection of the Cart Path and Old Sandwich Road. The intersection has a crosswalk and signage directing drivers to Ellisville Harbor State Park, on the opposite side of State Road. Ellisville Harbor State Park has a parking lot at its entrance, which leads to trails down to the ocean.

23. Plaintiff plans to excavate approximately 475,000 cubic yards of Material from the Property. All of extracted Material will be sold and none will be kept onsite. Plaintiff's president estimates the extracted material will sell for between $655,500.00 and $997,500.00.

24. The Project contains three phases of excavation and a final phase of construction. Phase I expands the existing borrow pit. Phase II excavates the area on which the proposed soccer field will be located. Phase III excavates the remaining area. Phase IV is the construction of the recreational facilities and Foot Path. Plaintiff will not expose more than five acres of area at any time during the phased excavation of Material and installation of improvements.

25. Plaintiff proposes to complete the excavation phases of the Project within 2.1 to 2.8 years, depending on the number of daily truck trips transporting the Material from the Property. The 2.8 year estimate is based on thirty truck trips per day, carrying twenty-five yards per trip. The 2.1 year estimate is based on forty truck trips per day, carrying twenty-five yards per trip. All truck traffic in Plymouth is limited to State Road.

26. The completed recreation fields, BMX park and parking lot will be located at an elevation of forty-five feet. The facilities, as proposed, are relatively flat in terms of elevation, or are at the same grade. Having the Project components at the same level will create a bowl shape on the Property.

27. Plaintiff anticipates charging the public for use of the recreational fields and the parking area. The recreational facility will have no connection to the existing campground, and campers would not be permitted to use the recreational facility as part of their campground admission.

28. When tasked with completing the design for the Project, Plaintiff's engineer was not asked to minimize the amount of Material to be excavated, and was not asked to keep any of the Material on site. [Note 8]

29. The elevation of the various Project elements was designed to accommodate two site arrival points. [Note 9] The first site arrival point is located at the proposed gravel parking lot. The second site arrival point is located at the junction of Old Sandwich Road and the Cart Path.

30. The removal or modification of certain elements, including the reduction from two to one site arrival point, would allow for changes to the proposed elevation of some of the recreational facilities.

a. For example, adding switchbacks to the Foot Path design reduces the volume of gravel which would be removed. Ending the Foot Path before it connects to the Cart Path allows for changes in elevation, also reducing the volume of extraction. The different elements could be terraced and located at different elevations, reducing the total volume of gravel to be removed.

b. Plaintiff could utilize the cut and fill technique (in which earthmoving equipment cuts a hill and pushes the material to fill a depression) to reduce the amount of Material to be removed. [Note 10]

* * * * *

The court reviews an appeal of a zoning board of appeals decision de novo. Pursuant to G. L. c. 40A, § 17, the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." This involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G. L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("[i]n exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."). After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, gives deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72. If the court can uphold the board for any reason, it must do so.

In determining whether a decision is "based on legally untenable ground," the court first looks at whether it was decided on a standard criterion or consideration not permitted by the applicable statutes or by-laws. The approach is deferential only to the extent that the court gives "some measure of deference" to the local board's interpretation of its own zoning bylaws. Once the court determines the content and meaning of statutes and bylaws, it looks at whether the board has chosen from those sources the proper criteria and standards in deciding to grant or to deny the variance or special permit application. Britton, 59 Mass. App. Ct. at 73. In determining whether the decision was "unreasonable, whimsical, capricious, or arbitrary," the question is "whether, on the facts the judge has found, any rational board" could come to the same conclusion. Britton, 59 Mass. App. Ct. at 74. The reasoning of the court does not have to exactly match the ZBA's reasoning, provided the facts found support the ultimate conclusion and action taken by the ZBA. This court concludes that the trial evidence fully supports the ZBA's conclusion that the Project as a whole, including the extraction of 475,000 cubic yards of Material, is not allowed by-right. Further, Indianhead remains free to apply for a special permit if it so chooses.

I. Plaintiff's Proposed Uses Are Allowed In A Rural Residential Zone Under Bylaw §§ 205-40(B) and (E).

Plaintiff's proposal includes a baseball diamond, multi-purpose recreational field, BMX park, parking lot, and nature trail, and claims those are all allowed uses in a Rural Residential zone under Bylaw § 205-40(B) (stating "outdoor recreation, including play and sporting areas" and "nature study" are permitted uses). The ZBA contends the proposed uses are commercial uses, which are prohibited in the Rural Residential zone under Bylaw § 205-40(E), because Plaintiff plans to charge fees for use of the fields and also potentially for on-site parking. [Note 11] Not all commercial uses, however, are prohibited under § 205-40(E). That section excepts from the prohibited uses those uses "specifically provided for above" in the preceding sections of the Bylaw, §§ 205-40(B) through (D). As found by the ZBA, "[t]he construction of an outdoor recreation area and a foot path are allowed by-right." See Decision at 3. The court finds that this determination was not arbitrary and capricious, as the plans provided by Plaintiff as part of its Application depict a trail and athletic fields. [Note 12] Plaintiff's proposed recreation areas and Foot Path fall within the "outdoor recreation" and "nature study" uses allowed under § 205-40(B), and are therefore allowed even if Plaintiff chooses to charge fees for their use as they are one of the uses specifically exempt from prohibition.

The ZBA also asserts that the proposed parking lot is not an allowed use in the Rural Residential zone and that, because Plaintiff will not consider constructing the proposed facilities without parking, the entire project as proposed is prohibited. The court disagrees that the inclusion of a parking lot renders the entire project a prohibited use. While it is true that § 205-40 is devoid of any references to parking, under § 205-23(A)(1) "[o]ff-street parking spaces and necessary maneuvering space shall be required in all districts according to the ratios established under Subsection K below." (underline added). Section 205-23(K)(1) provides a table of the minimum number of spaces required for particular uses. For "open uses of land and recreation facilities," the table allows "[t]he number of spaces shall be determined by the Board of Appeals on the basis of employer and customer needs, type of use or facilities, and number of users or spectators." Thus, to the extent the proposed parking is accessory to by-right uses, this court concluders it is not a prohibited use in the Rural Residential zone.

II. The Board's Determination That The Extraction Of 475,000 Cubic Yards Of Material Was Not "Incidental to and Required" For the Construction Of An Allowed Use Was Legally tenable, and was not Arbitrary and Capricious

Having determined Plaintiff's proposed uses for the Property are allowed under § 205-40, the next question is whether the removal of 475,000 cubic yards of Material also is allowed. Section 205-18(F)(1)(b) provides that the "removal of soil, gravel, or quarried stone in excess of 10 cubic yards for sale, trade or other consideration, or for use on a separate site, is prohibited except . . . [w]hen incidental to and required in connection with the construction of an approved use or structure . . . " (underline added). Section 205-18(F)(3) defines "incidental to and required" as the "amount of material reasonably necessary to allow a use to be conducted or a structure . . . to be constructed . . ." (emphasis added). Plaintiff maintains the extraction is allowed under this subsection because it is necessary in order to construct the proposed recreational facility and Foot Path, which are allowed uses. The Board concluded the volume of cubic yardage to be extracted far exceeds the amount "reasonably necessary" for the construction of the proposed uses.

In its Decision, the Board first found that "[t]he removal of 475,000 cubic yards of earth involving thousands of truck trips over a 2 year period was not reasonably necessary or incidental to the construction of a 1 ½ acre recreation area and foot path." Decision at 7. The Board further found that Plaintiff had not "adequately demonstrated that the amount of material to be removed was 'incidental to and required' to allow the recreational area to be conducted," and directly quoted the Bylaw's definition of "incidental to and required."

Defendants presented sufficient evidence at trial to support the Board's reasoning that the planned extraction of such a large volume of Material is not reasonably necessary to carry out the Project and construct the facilities allowed as of right. The ZBA found that the removal of 475,000 cubic yards was "major in significance" when considering the ultimate end uses of the Property, and, without further review and conditioning, could lead to "objectionable side effects (such as heavy equipment noise, vibration, dust or vehicular traffic) to abutting properties." Decision at 7.

As established at trial, the recreational facility creates a bowl on the Property, with the proposed parking area and fields located at almost the lowest elevation possible. The ZBA's expert credibly testified that the parking area, fields and BMX bike park could be repositioned differently on the site or located at higher elevations without compromising the utility of the facilities. Those changes in turn could reduce the amount of material to be removed (in his estimation, a reduction of 375,000 cubic yards). [Note 13]

Plaintiff argues locating the recreation areas at the lowest possible elevation is necessary in order to accommodate two "site arrival points." Plaintiff's current design includes two site arrival points: one at the end of the parking lot closest to the baseball field, and the second at the junction of the Cart path with Old Sandwich Road. [Note 14] Regarding site arrival points, under 36 C.F.R. § 206.2.1, "[a]t least one accessible route shall be provided within [a] site from accessible parking spaces and accessible passenger loading zones; public streets and sidewalks; and public transportation stops to the accessible building or facility entrance they serve." Plaintiff's expert Mr. Safdie further described a site arrival point as "any location at the perimeter of a site or parcel of land where the general public would be arriving. . . . [I]t could be a pedestrian access, it could be a bus drop-off or other kind of drop-off . . . and . . . any parking lot that's provided onsite." [Note 15] All site arrival points must connect to the accessible elements on a site via an accessible route.

Plaintiff, however, specifically depicted two site arrival points during the drafting and finalization of the plans. [Note 16] Having more than one arrival point is not required, [Note 17] and eliminating one site arrival point would allow for the proposed recreational areas to be located at different elevations, reducing the volume of Material extraction from the Property. [Note 18]

Evidence introduced at trial further established several options are available to Plaintiff which would reduce the volume of material needed to be removed, while maintaining all of the different recreational areas Plaintiff desires to build. The Foot Path design could be modified by the insertion of switchbacks, reducing the amount of gravel to be removed. Plaintiff could also utilize the "cut and fill" technique, in which earthmoving equipment pushes material from high elevations into an existing sandpit to create a more balanced elevation. [Note 19] It is clear that several options were available to Plaintiff regarding the construction of the proposed recreational facilities, and that the removal of 475,000 cubic yards of Material is not reasonably necessary. The ZBA, therefore, did not err or act arbitrarily and capriciously in finding the excavation of 475,000 cubic yards was not an amount "reasonably necessary" for the proposed project and upholding the Building Commissioner's denial.

Plaintiff argues the ZBA incorrectly interpreted the term "incidental to and required" as allowing only the "minimum necessary" amount of Material to be excavated, as opposed to the amount "reasonably necessary." The court disagrees that the ZBA's use of the words "minimum necessary" in the Decision signifies the ZBA applied the wrong criteria. The ZBA's other findings and the reasoning laid out in the Decision demonstrate that it found the proposed excavation was not "reasonably necessary" for the construction of the Project. The insertion of this term does not render the whole Decision legally untenable. The preponderance of evidence on this point at trial established that the proposed extraction is not reasonably necessary to create the proposed uses, and therefore this court concludes that it is not incidental to and required for the creation of the recreational uses.

Plaintiff also argues the ZBA erred by not considering the requirements of the ADA and 521 CMR when making a determination as to how much excavation was reasonably necessary. Plaintiff claims those rules and regulations mandate specific accessibility conditions that require the Foot Path and site arrival points be constructed and located as proposed. The evidence presented at trial, however, shows that having more than one site arrival point is optional. The Foot Path itself is not required by any disability rules and regulations, and if the site arrival point at Old Sandwich Road was eliminated, no path would be needed to connect at that location.

Finally, Plaintiff argues the ZBA erred in finding the proposed use of the Property was a "sand and gravel quarry," requiring a special permit pursuant to § 205-18. Plaintiff argues (and the record shows) the Building Commissioner never made the specific determination that the proposed project constituted a sand and gravel quarry; he stated only that the zoning permit application was denied because a special permit was needed, without further clarification.

While the court does not agree that the proposed project must be categorized as a sand and gravel quarry, the ZBA's decision does not rest solely on that determination. Based on the evidence presented at trial, the court finds sufficient facts supporting the ZBA's conclusion that a special permit is required under the Bylaw due to the volume of Material that Plaintiff proposes to extract, however one characterizes the extraction process.

III. Conclusion

The Board's affirmance of the Building Commissioner's denial of Plaintiff's zoning permit Application was not legally untenable, nor was it arbitrary or capricious. As proven at trial, the proposed extraction volume of sand and gravel is not incidental to and required in connection with the construction of allowed uses or structures, and therefore is not allowed by right

Accordingly, the Board's Decision is AFFIRMED, and Plaintiff's complaint is


Judgment to enter accordingly.


[Note 1] The current action is one of three cases relating to the Property. One case, filed on September 8, 2014, Land Court Case No. 14 MISC 486199, is stayed pending the outcome of this case. Case No. 15 MISC 000285, was closed on January 31, 2017, following Judgment in favor of the Town, and a withdrawal of the Notice of Appeal filed by Indianhead.

[Note 2] Donald P. Quinn is named both individually and as Trustee of the Ellisville Hill Trust. The Quinns filed an assented-to motion to intervene on March 20, 2017, which this court allowed.

[Note 3] ID Exhibits K-T are entered in evidence as Exhibits 24A – 24G.

[Note 4] Under Bylaw § 205-4, a "zoning permit" is required "prior to the issuance of a building permit, and provides the Town with a means of assuring that all plans for uses or structure are in accordance with the requirements of the Bylaw[.]"

[Note 5] Sections 205-18(F) and (G) refer to the "Excavation of materials" and "Conditions of excavation," respectively. Section 205-18 refers to "Natural features conservation requirements," while § 205-18(B)(1) outlines the requirements and procedures for the Building Commissioner's review of applications under this section.

[Note 6] See Exhibit 12, Sheet 1 (subdivision plan endorsed by the Plymouth Planning Board on September 12, 2016, and recorded by Plaintiff with the Registry on September 22, 2016.)

[Note 7] See Ex. 3-1.

[Note 8] The engineer was not the original engineer who created the Project's designs, but came in to complete it.

[Note 9] A site arrival point, as defined under the Americans with Disabilities Act 2010 Standards for Accessible Design § 206.2.1, is any way the public arrives at the perimeter of the site or the edge of the parcel of land, such as a pedestrian access point, pedestrian drop-off, bus stop or parking area. See Standards § 206.2.1 (stating "[a]t least one accessible route shall be provided within the site from accessible parking spaces and accessible passenger loading zones; public streets and sidewalks; and public transportation stops to the accessible building or facility entrance they serve."); see also § 206.2.2.

[Note 10] Under Bylaw Section 205-18(D)(1) "[c]ut and fill shall be avoided in all instances possible[.]" The ZBA's expert testified that he nonetheless recommended the cut and fill technique in March 2017, as part of the peer review he conducted at the ZBA's request. The ZBA's primary request for his review was consideration of ways to minimize the excavation volume. Tr. vol. 4, 134: 1-20.

[Note 11] See Tr. vol. 1, 141: 2-9.

[Note 12] Bylaw § 205-59 defines a "recreational area" as a "[parcel] of land . . . maintained and preserved for active or passive recreational uses (such as a park, tennis courts, ball fields, swimming pools, golf courses, etc.) . . . designed and intended for the use or enjoyment of occupants of the recreational development and, in certain circumstances, the general public."

[Note 13] Tr. vol. 4, 119: 12-23.

[Note 14] Tr. vol. 2, 11: 16-25.

[Note 15] Tr. vol. 2, 10: 5-10.

[Note 16] Tr. vol. 4, 64: 15-19. Plaintiff's expert and the ZBA's expert disagreed on whether the intersection of the Cart Path and Old Sandwich Road qualified as a site arrival point. Having found that having more than one site arrival point is not required, the court need not make a determination as to the validity of the second site arrival point.

[Note 17] Tr. vol. 4, 64: 8-17.

[Note 18] Tr. vol. 4, 116-118.

[Note 19] Bylaw § 205-18(D)(1) states that "[e]fforts shall be taken to maintain the continuity of the natural topography when building on any site. Cut and fill shall be avoided in all instances possible, and structures shall be designed and sited to fit naturally into the topography rather than radically altering the topography to conform to structures or other site appurtenances. Except in areas where terracing is used, when excavation is necessary, grading shall be done in such a way that the resulting contours follow smooth natural curves that conform to the curves of the surrounding landscape. Straight or angular slopes or cuts which interrupt natural topography shall not normally be allowed." While the Bylaw does not encourage cut and fill, the technique is not prohibited.