BRIAN S. HICKEY and MARY P. HICKEY v. ERNIE OLIVEIRA, Member of the ZONING BOARD OF APPEALS OF THE TOWN OF DENNIS, et. al.

This is the third in a series of cases in this Court involving a twenty-foot right of way (the "Way") that abuts the Dennis, Massachusetts beachfront home of plaintiffs Brian and Mary Hickey. The first two cases, at their true conclusion, produced appellate decisions. See Hickey v. Pathways Association, Inc., 472 Mass. 735 (2015) ("Hickey I"); Loiselle v. Hickey, 93 Mass. App. Ct. 644 (2018). This case took a trip to the Appeals Court at what's turned out to be just an early chapter in this proceeding. See Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 (2018) ("Hickey II").

Hickey II held that the Hickeys had timely appealed under G.L. c. 40A, § 17 an April 2016 decision of the defendant members of the Dennis Zoning Board of Appeals (the "Board"). The Board upheld a determination by Dennis's building commissioner that defendant Pathways Association, Inc. ("Pathways") didn't need any approvals under Dennis's Zoning By-Law (the "By-Law") in order to build a stairway and related elements within the Way (the "Proposed Stairway"). The Hickeys believe otherwise. For its part, Pathways (but not the Board) contends that the Hickeys lack standing under § 17 to appeal the Board's decision.

The parties appeared for trial on May 3 and 6, 2019. On the morning of the first day of trial, the Court viewed the Way, the Hickey property, and several nearby coastal areas. Two of the latter had paths to the beach and associated stairway systems. Having heard the parties' witnesses, having reviewed their evidence, having received their stipulations of fact, having taken its view, and having heard the arguments of counsel, the Court finds the facts described above as well as those that follow in the enumerated paragraphs below. The Court concludes from its findings that while the Hickeys have proven their standing to appeal the Board's decision, that decision fails to spell out how the Board has interpreted three provisions of the By-Law. This Court can't properly review the Board's decision under § 17 without hearing further from the Board.

Here are the Court's findings:

1. The Hickeys own a beachfront property at 104 Shore Drive in Dennis. They've owned the property since 1994. The parcel is registered land, shown as Lot X on Land Court Plan 647-F, dated July 7, 1938.

2. The Hickeys' property is bounded on the south by Shore Drive. Shore Drive runs parallel to Cape Cod Bay. The Way is on the east side of the Hickey property. (The Way is labeled as such on Plan 647-F.) The Hickey property extends on its north side to the low water mark of Cape Cod Bay. The Hickeys' property and the Way are located in an R-40 Residential Zoning District under the By-Law.

3. Today's Way doesn't have the same dimensions shown on Plan 647-F. That's because in 1945, after Plan 647-F was registered, the Town of Dennis took a public easement across several feet of the southern end of the Way, in order to widen Shore Drive.

4. The Hickeys own a partial interest in the fee beneath the Way. Hickey I holds that the other owners are the heirs to the original developers of the Hickey and surrounding North Dennis parcels.

5. The Hickeys have a two-story residence on their property. That residence and surrounding yards, and the adjacent portions of the Way, are on a bluff with sweeping views of a beach and Cape Cod Bay. Owing to how the Hickeys built their residence, portions of the Way that abut the "residential" portion of the Hickey property are elevated a few feet above the Hickey yard, which has the effect of bringing activities on the abutting portions of the Way closer to the second-floor bedrooms of the residence.

6. The Hickeys' north-facing backyard and the Way both reach the edge of the bluff at approximately elevation 40'. The Hickeys' property and the Way nevertheless continue down the face of the bluff and extend to Cape Cod Bay. Within the Way, over approximately 90 feet horizontally, the bluff descends approximately 37.5' vertically to the beach. Over the last 25 horizontal feet, from approximately elevation 20' to elevation 2.5', large boulders armor the bluff. That revetment extends along the Hickey property as well.

7. There are many properties along the bluff. Given its steep slope, many beachfront owners (including the Hickeys) have installed stairways from the top of the bluff to the top of the revetment (or, in some cases, to a point within the revetment). These stairs typically don't reach the beach, as coastal storms would wreck them. Instead, many stair owners have removable seasonal metal ramps or stairways that they install at the seaward end of more permanent stairways or platforms.

8. When the Hickeys bought 104 Shore Drive in 1994, there was within the Way a stairway (the "Former Stairway"). It had been built in the early 1970s. The Former Stairway consisted of a series of stairs and landings that started at the top of the bluff and ended within the area occupied by the revetment. The Former Stairway used a removable aluminum stairway to cross the rest of the revetment and reach the beach.

9. The Former Stairway had no gates. In 1997, persons in the Shore Drive area formed and incorporated Pathways to take care of the Way and other beach paths. Between 2004 and 2008, Pathways attempted to control access to the Former Stairway by hiring a guard, whom Pathways positioned at the Shore Drive end of the Way. The guard worked summer weekends between 10:00 am and 5:00 pm. Pathways gave the guard a list of members of Pathways and issued its members Pathways "fobs," so that members could identify themselves to the guard. In 2002 or 2003, Mr. Hickey installed a split-rail fence and a slatted wooden gate on the Way approximately 30 feet north of Shore Drive. The gate did little to prevent entry into the rest of the Way. By contrast, there are two paths east of the Way, maintained by associations other than Pathways, that lead to the edge of the bluff and down stairway systems. Each path is enclosed, or partly enclosed, by solid, six-foot wooden fences. At the landward end of each of the fenced-in paths, there's a door with combination lock.

10. Some of the landings on the Former Stairway had benches. While seniors and others found the benches handy for taking a rest or changing shoes, the benches encouraged longer stays on the Former Stairway, both day and night. The stairways that the Court observed on its view didn't appear to have benches or other seating areas.

11. The uses of the Former Stairway were benign when the Hickeys first bought their property, as the users of the Former Stairway were primarily the Hickeys' neighbors. Over time, however, many owners in the neighborhood began renting their properties to seasonal tenants who weren't as neighborly as the owners themselves. As rentals increased, disruptive uses of the Former Stairway (described in ¶¶ 12-13 below) increased as well. The disruptive uses began in the late 1990s and didn't end until the Former Stairway was removed in 2011.

12. The disruptive uses of the Former Stairway included drinking and partying (especially after local bars closed), smashed bottles, discarded beer cans, unattended bonfires on the beach, and large amounts of trash on the stairs and within the Way. Sometimes when the Hickeys confronted misusers of the Way, persons obeyed; other times, they replied to the Hickeys with profanities and acts of vandalism.

13. The disruptive uses of the Former Stairway included the launching of fireworks from the stairway. The lighting of fireworks typically began around July 4th and continued almost nightly for weeks thereafter, often late into the night and early morning.

14. The noises and activities described in ¶¶ 12-13 frequently disturbed the Hickeys' sleep, and interrupted the enjoyment of their property when the Hickeys were awake.

15. The Way has no designated parking area. During the time the Former Stairway existed, users of the stairs sometimes parked on both sides of Shore Drive near the Hickeys' property, or even in the Hickeys' driveway, overnight.

16. Persons who engaged in the disruptions described in ¶¶ 12-13 above included children in households that were Pathways members. Mr. Hickey spoke to officers of Pathways about the disruptive uses of the Former Stairway, but those uses continued.

17. In November 2015, Pathways filed a notice of intent ("NOI") with the Dennis Conservation Commission. The NOI sought approval to build the Proposed Stairway within the Way and down the bluff.

18. In connection with the NOI, Pathways submitted a plan entitled "Site Plan Showing Proposed Stairway," dated November 18, 2015, prepared by J.M. O'Reilly & Associates, Inc. In later proceedings, Pathways revised its stairway plan. While the parties agree that the current operative plan for the stairway project is Agreed Exhibit 23, a plan dated December 5, 2016 (also prepared by J.M. O'Reilly & Associates, Inc.), the plan that's the focus of this zoning appeal is a December 15, 2015 revision of the "Site Plan Showing Proposed Stairway," Agreed Exhibit 7 (the "Stairway Plan").

19. Proceeding north from Shore Drive, the Stairway Plan depicts, first, the clearing of a six-foot path. The path runs along the course of an existing one- to two-foot footpath. Over a distance of approximately twenty feet, the proposed path will come within six feet of the Hickeys' property. The path ends near the edge of the bluff. There the widened path meets the southern end of the Proposed Stairway.

20. The southern end of the Proposed Stairway begins with an elevated 19' wooden walkway (the "Top Walkway"). The Stairway Plan calls the first 5.3 feet of the Top Walkway a "landing" (the "Top Landing"); two benches, each five-feet long and 1.5-feet deep, flank the Top Landing.

21. North of the Top Walkway is a 13.1' flight of stairs. Those stairs reach a second landing (the "Middle Landing"). The Middle Landing is eleven feet long. The Stairway Plan depicts, within and on the western side of the Middle Landing, a platform (the "Middle Platform"). Pathways proposes to build within the Middle Platform an L-shaped bench, running along the west and south sides of the platform. Each leg of the L is eight feet long. The Proposed Stairway's various benches will comfortably seat fourteen adults.

22. The Stairway Plan depicts, north of the Middle Landing, a 13.6' flight of stairs. Those stairs reach a third landing (the "Lower Landing"). The Lower Landing is eight feet long. The Stairway Plan depicts, within and on the western side of the Lower Landing, another platform (the "Lower Platform"). The Lower Platform is identical to the Middle Platform, benches and all.

23. The northern edge of the Lower Platform/Lower Landing will be positioned at the top of the revetment. North of the Lower Platform/Lower Landing is a 15.4' flight of stairs. That flight ends within the area that the revetment occupies. Construction of this flight will require installation of two timber posts within the revetment. The Stairway Plan states that "[a]ll posts in the existing stone revetment shall be secured to the stones using anchors into the boulders. Anchors shall be drilled into the stone and secured with suitable structural epoxy." This method of installing the posts is superior to installing posts in the cracks between the large rocks that form the revetment. Construction and maintenance of the Proposed Stairway likely will not damage any part of the revetment.

24. The Stairway Plan shows that at the end of the northernmost set of fixed, wooden stairs, there will be a 10.7' removable seasonal stair that crosses the lower part of the revetment and ends at the beach.

25. The Stairway Plan shows that the Proposed Stairway will be 55" wide, except at the locations of the Top Landing, the Middle Platform and the Lower Platform. On either side of the Proposed Stairway there will be a 36"-high wooden rail. Each rail will be capped with a 1" x 6" board.

26. Every part of the Proposed Stairway will be within 25 feet of the Hickeys' property. The Top Landing and its western bench are approximately 8.5 feet from the Hickeys' property. The Middle and Lower Platforms, and their westernmost benches, are approximately five feet from the Hickeys' property.

27. Every element of the Proposed Stairway, except for the removable seasonal stair, will be fixed to the Way by posts that are embedded either in the soil of the Way or atop boulders in the revetment. The Proposed Stairway will have no enclosures other than its wooden side rails. The Proposed Stairway must be built out of various materials including wood, nails, nuts and bolts, post anchors, and epoxy. The Proposed Stairway will support persons trying to reach the beach from the bluff, and vice versa. The Proposed Stairway also will support persons who choose to sit on the benches and rails of the Stairway's Top Landing, the Middle Platform, the Lower Platform, and other elements of the Stairway.

28. As will be seen below, the Town has not exercised its zoning powers to require Pathways to restrict use of the Proposed Stairway. The Stairway Plans depict no barriers to entering any part of the Way or the Proposed Stairway. Pathways also has not decided whether to limit access to the Proposed Stairway, and if so, how.

29. Hickey I and Loiselle declare that a large number of property owners have easement rights over the Way. Some have suggested that the number of lots having easement rights approaches 200. There are only 35 lot owners, however, who are currently members of Pathways. Nothing in Hickey I or Loiselle obligates a person who has easement rights in the Way to join Pathways or abide by its rules.

30. Section 1.2 of the By-Law, "Purpose," provides:

The purpose of this By-Law is to promote the health, safety, convenience, amenity, and general welfare of the inhabitants of the Town of Dennis, through encouraging the most appropriate use of the land as authorized by Chapter 808 of the Acts of 1975, with objectives as follows:

To lessen congestion in the ways; to conserve health; to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to recognize the need for housing for persons of all income levels; to facilitate the adequate provision of transportation, water, water supply, drainage, schools, parks, open space, and other public requirements; to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment; to encourage the most appropriate use of land throughout the town, including consideration of the master plan, and to preserve and increase amenities by the promulgation of regulations to fulfill said objectives.

31. Section 1.3.1 of the By-Law provides: "The Building Commissioner shall administer and enforce the provisions of this By-Law. No permit shall be issued for construction. . . unless the required submitted plans and specifications indicate that the buildings, structures, premises and their use will conform in all respects to the provisions of this By-Law."

32. Section 2.2.1 of the By-Law, under "Use Regulations," provides:

Buildings or structures shall be erected or used and the premises shall be used only as set forth in the "Use Regulations Schedule", except as exempted by Section 2.4 or by statute. Where an activity might be classified under more than one of the uses in the Use Regulations Schedule, the more specific classification shall determine permissibility; if equally specific [sic] the more restrictive shall govern. Any use not specifically enumerated in a district herein shall be deemed to be prohibited.

33. The By-Law's Use Regulations Schedule appears in § 2.2.2 of the By-Law. The Schedule lists the "principal uses" of a property. Section 5.B of the By-Law defines "principal use" as "[t]he primary use to which a lot or structure is put or employed." By contrast, § 5.B defines "accessory use" as "[a] use customarily incidental to and located on the same lot with the use to which it is accessory except that a use accessory to scientific research or related production does not have to be on the same parcel as the use to which it is accessory."

34. The as-of-right "principal uses" for properties in the R-40 district of five acres or less are "One or two dwelling unit," "Dwelling, One Unit With Accessory Apartment," "Child Care Facility," "Community Residential Home," "Temporary Uses," "Home Occupation," "Stable," "Temporary Construction Office," and "Non-Commercial Scale Solar Energy Electrical Generator."

35. Section 2.3.1 of the By-Law, under "Intensity Regulations," provides (emphasis and italics in original): "Buildings or structures shall be erected or used . . . only as set forth in the Section 2.3 Intensity Regulations, except as exempted by Section 2.4 or by statute."

36. Section 2.3.2 of the By-Law, "Intensity of Use Schedule," requires for "OTHER PERMITTED PRINCIPAL STRUCTURES" in the R-40 Residential Zoning District a minimum 25-foot side-yard setback.

37. Section 2.3.3.5 of the By-Law provides: "No structure other than a ramp, roadway, drive, walk, stairway, seawall, dock or boathouse shall be located within fifty (50) feet of the top of the bank of any river or stream having a year-round running flow of water, of any lake or pond containing one thousand (1000) square feet or more of water eleven (11) months of the year, coastal bank, or mean high water."

38. Section 5.A of the By-Law, "Interpretation of Language," provides:

The definitions contained in this section are intended for use within the By-Law. Their meaning may differ from generally accepted use and meanings unless the context require otherwise, [sic] the following definitions, [sic] shall be used in the interpretation and construction of the By-Law, and the following shall apply to all definitions; the words used in the present tense shall include the future; the singular number shall include the plural and the plural the singular; the word building shall include the word structure; the word used shall include arranged, designed, constructed, altered, converted, rented leased [sic], or intended to be used, the word shall is mandatory and not directory and the word may is directory and not mandatory.

39. Section 5.B of the By-Law defines "accessory structure" as "[a] detached structure located on the same lot with the principal structure to which it is accessory, and not used for either seasonal or year-round living."

40. Section 5.B defines "building" as "[a] structure having a roof or similar temporary or permanent covering which encloses useful space."

41. Section 5.B defines "lot" as "[a] parcel of land not divided by a street, in one (1) ownership, with definite boundaries ascertainable by recorded plan or deed, and used or set aside and available for use as the site of one (1) or more buildings or for any other definite purpose."

42. Section 5.B defines "lot line" as "[a] line bounding a lot."

43. Section 5.B defines "principal structures" as "[t]he structure within which the primary activity of the principal use of a given lot occurs."

44. Section 5.B defines "private club, members only" as "[a] structure or facility owned and/or operated by a corporation or association of persons for social or recreational purposes."

45. Section 5.B defines "setback" as "[t]he minimum horizontal distance from a structure to an adjacent lot line measured perpendicular to the lot line."

46. Section 5.B defines "street" as "[a] way which affords the principal means of access as defined in M.G.L. Ch.90 and 41, §81L."

47. Section 5.B defines "street line" as "[a] lot line abutting a street."

48. Section 5.B defines "structure" as "[a]n assembled combination of materials at a fixed location to give support or shelter, exclusive of boundary or retaining walls, fences, flag poles, self contained heating or ventilating equipment and the like."

49. Section 5.B defines "yard" as "[t]hat portion of the lot which is unoccupied by a structure except for fences, furniture and other customary yard accessories."

50. Section 5.B defines "yard, front" as "[a] yard extending between any street line and the principal structure, and bounded by the sides of the lot."

51. Section 5.B defines "yard, rear" as "the yard most distant from and generally opposite the front lot line…."

52. Section 5.B defines "yard, side" as "[a] yard other than a front or rear yard, extending between lot line [sic] and the principal structure, and bounded by a front yard and the rear yard."

53. In January 2016, Pathways wrote to Dennis's Building Commissioner, asking him for his interpretation of provisions of the By-Law and how they related to the Proposed Stairway.

54. In February 2016, the Building Commissioner sent Pathways an e-mail in which he claimed that the Proposed Stairway consisted of "nothing more than landscape features designed for pedestrian access to the beach," and that the Town "does not require a building permit for landscape features and we would not require the applicants to seek relief from the ZBA for setbacks to a landscape feature." In March 2016, the Hickeys timely appealed to the Board, pursuant to G.L. c. 40A, §§ 8 and 15, the Commissioner's determination.

55. On April 11, 2016, the Board held a hearing on the Hickeys' appeal, and unanimously voted to uphold the Commissioner's determination.

56. The Board agreed that the By-Law "does not establish a requirement for Building Permits. . . . Building Permits are governed by the State Building Code."

57. The Board further concluded that the Way "is not a parcel of land, but rather a portion of a street network providing access. . . . Pedestrian facilities are typically located within ways. . . . The staircase . . . is a pedestrian facility similar to a sidewalk located within a way. . . . Given the[se] findings the Board finds that the Building Commissioner was correct in determining the staircase was located in a way; that setbacks do not apply to facilities located in ways; and that ways are regulated under the Subdivision Control By-law not the Zoning By- law."

58. Finally, the Board held that "the concept that zoning would regulate whether a person might stop in a way, to enjoy a view, catch their breath or otherwise recreate is a stretch. . . . The Board finds that this type of prior restraint requires the regulatory scheme to determine and regulate the intent of a person's actions. . . . The Board finds that, the issue of using the way for views, resting or recreating would . . . appear to be a property rights issue that is not regulated by the Dennis Zoning By-law. . . ."

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The first issue for resolution is whether the Hickeys have standing under c.40A, § 17, to challenge the Board's decision. As abutters to the Way, the Hickeys are presumed to have standing under § 17 to challenge zoning decisions relating to the Way. See 81 Spooner Road, LLC v. Zoning Bd. of Brookline, 461 Mass. 692 , 700 (2012). Pathways tries to overcome the Hickeys' presumed standing in several ways, but in the end, owing to how the Hickeys characterize one of the zoning issues in this case, they have proven their standing.

One of the Hickeys' contentions in this case is that By-Law § 2 3.2's requirement of a 25-foot side-yard setback for principal structures in an R-40 zone applies to the Proposed Stairway. If that's the case, since the Way is 40 feet wide, no structure may be built within the Way absent a variance. The Hickeys further argue that the Proposed Stairway likely will attract the same nuisances (noise, primarily) as the Former Stairway, and since the Proposed Stairway isn't being built 25 feet away from their property line as the By-Law requires, the Board's failure to enforce the By-Law brings those nuisances closer to the Hickey property than the By-Law would otherwise allow.

Pathways attacks this logic in three ways. Pathways first claims that that the Zoning Act, G.L. c.40A, and the By-Law don't protect the Hickeys' interest in avoiding the disturbances they identified at trial. See Kenner v. Zoning Bd. of Chatham, 459 Mass. 115 , 120-121 (2011) (plaintiff must base his or her claims of standing on interests that the Zoning Act or the local zoning bylaw protects). The courts repeatedly have viewed setback and other dimensional regulations as protecting a variety of recognized interests under the Zoning Act. See, for example, O'Connell v. Vainisi, 82 Mass. App. Ct. 688 , 691-692 (2012); Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 518-519 (2011); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11-13 (2009). And where an abutter is able to offer proof of a harm specific to that abutter that an alleged dimensional violation will exacerbate, such as increased noise, the courts have held that the abutter has standing under § 17 to, in effect, have the dimensional requirements enforced. See, for example, Bertrand v. Zoning Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) (rescript) (claims of increased noise associated with increased density may confer standing under § 17); Welch-Philippino v. Ramsdell, 21 LCR 261 , 266 (2013) (Sands, J.) (abutters to existing nursing home had standing to challenge home's special permit, as permitted expansion would bring home and its noises closer to abutter's property); Geraci v. City of Waltham, 21 LCR 607 , 611 (2013) (Sands, J.) (Zoning Act protects abutter's interest in avoiding noise from a proposed second home on an allegedly nonconforming lot, where home would be built within eight feet of abutter's property line). The Hickeys' interest in avoiding noise associated with use of the Proposed Stairway thus falls within the scope of the interests the Zoning Act protects.

Pathways next argues that the Hickeys' claims of increased noise and other disturbances, once the Proposed Stairway is built, rest on speculation. See Denneny v. Zoning Bd. of Seekonk, 59 Mass. App. Ct. 208 , 211-12 (2003) (plaintiff must provide direct evidence, and not "unsubstantiated claims or speculative personal opinions," of his or her claims of harm).

The Hickeys' claims aren't speculative. They rest on a controlled experiment: the Hickeys testified credibly as to what happened between the late 1990s and 2011, when the Former Stairway occupied the Way, and what happened after 2011, when that Stairway disappeared. The Hickeys also have proven that the Proposed Stairway possesses the same features as the Former Stairway that encouraged loitering and its associated disturbances. Those features are (a) both stairways' location on a picturesque bluff; (b) their placement on an otherwise unoccupied and unpatrolled property; (c) the many persons who have lawful rights to use the Way; (d) the many stairs and railings that serve as intended (or unintended) perches; and (e) both stairways' lack of barriers to access. The Hickeys also have gone two steps further. They proved that (f) the Proposed Stairway has larger landings than the Former Stairway, and (g) unlike the Former Stairway, the Proposed Stairway will have benches designed specifically for persons to sit on them. Pathways' witnesses admitted at trial that the landings and benches are designed to allow persons to stop on the Proposed Stairway. Furthermore, Dennis's zoning authorities have imposed no restrictions on use of the Proposed Stairway, and Pathways hasn't adopted any plans (let alone plans that someone could enforce against Pathways) for avoiding or mitigating the disturbances the Hickeys witnessed during the later years of the Former Stairway. The Hickeys' predictions as to how persons are likely to use the Proposed Stairway thus aren't unreasonably speculative.

Pathways last argues that any injury the Hickeys will suffer will be, in Kenner's words, "de minimis. . . ." Kenner, 459 Mass. at 124. A better way to phrase the operative standard is to use the vernacular found on the same page in Kenner, in its note 5: "insignificant." The disturbances associated with the Former Stairway were, for the Hickeys and any reasonably objective occupant of 104 Shore Drive, significant. See Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (evidence of plaintiffs' claimed harms under c. 40A, § 17 must meet reasonable-person standard). Ruckus on the Former Stairway frequently interrupted the Hickeys' sleep and prevented them from reasonably enjoying their property.

The Court thus holds that the Hickeys have standing (arising from expected noise and other disturbances) to challenge the Proposed Stairway's alleged lack of compliance with the By-Law's side-yard setback requirements. Since the Hickeys have standing on that ground, the Court need not analyze the Hickeys' claim that they have standing on account of anticipated damage to the revetment on their property.

The Court thus turns to the second issue for trial: whether the Proposed Stairway requires a variance under the By-Law. Review under c. 40A, § 17 of a zoning board's decision

involves a combination of de novo and deferential analyses. The trial judge makes his own findings of facts and need not give weight to those the board has found. The judge then "determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards [for decision]". We accord deference to a local board's reasonable interpretation of its own zoning bylaw, with the caveat that an "incorrect interpretation of a statute . . . is not entitled to deference."

After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an "unreasonable, whimsical, capricious or arbitrary" manner. This stage of judicial review "involves a highly deferential bow to local control over community planning." . . . The judge nonetheless should overturn a board's decision when "no rational view of the facts the court has found supports the board's conclusion." Deference is not appropriate when the reasons given by the board lacked "substantial basis in fact" and were in reality "mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law."

Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (20120) (citations omitted, quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-74 (2003); Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1 , 6 (2003); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 382, 383 (2009); and Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973)).

At trial, the Hickeys challenged the Proposed Stairway as both an illegal structure and an illegal use. It doesn't appear from the Board's decision that the Hickeys cast their arguments in this Court in the same way they presented them to the Board. By not doing so, this Court doesn't have the benefit of the Board's perspective on the Hickeys' precise contentions. That's not a problem when it comes to the factual issues the Hickeys raise – under § 17, a reviewing court finds all facts de novo – but not having the Board's perspective presents challenges when the Court turns to the Hickeys' interpretation of the By-Law. As noted earlier, a court that's reviewing a board's decision under § 17 must give deference to that board's interpretation of its local zoning bylaw, but if the case involves a bylaw that doesn't lend itself to obvious interpretation, and if the board hasn't offered its own reading of the bylaw, a reviewing court can't be certain what it is ratifying if the court deferentially upholds the board's decision.

There are several missing Board interpretations in this case. Most pertain to how the By-Law treats the Proposed Stairway from a structural perspective; one other pertains to the Stairway's use. The By-Law regulates structures by three different means. The first is by designating certain structures as requiring site-plan approval, a "zoning compliance certificate," a Board finding, or a special permit. See, for example, By-Law at § 2.3.3.6 (requiring compliance certificate); id. at § 2.3.4.2(a) (requiring site-plan approval); id. at § 2.3.4.2(b) (same); id. at § 2.4.1.2(B) (requiring Board finding); id. at § 2.4.1.2(C) (same); id. at § 2.4.1.2(E) (requiring special permit and Board finding); id. at § 2.4.1.2(F) (requiring Board finding); id. at § 2.4.1.2(G) (same); id. at § 4.1.2.3 (requiring site-plan approval); id. at §§ 4.2-4.5, 4.8-4.10, 7, 10-6, 11, 13.4.1 (each requiring special permit). The Proposed Stairway isn't one of those structures. Second, in certain Town districts, no "development" may occur without the Building Commissioner's approval. See, for example, id. at §§ 8.3, 9.5.5, 9.6.5, 10-9(1), 12.9. The district that encompasses the Way, the R-40 District, isn't one of those special districts.

That leaves the third way that the By-Law regulates structures: according to § 1.3.1 of the By-law, the Building Commissioner – who's charged with "administer[ing] and enforc[ing] the provisions of [the] By-Law" – is not to issue any "permit . . . for construction . . . unless the required submitted plans and specifications indicate that buildings, structures, premises and their use will conform in all respects to the provisions of this By-Law." The Board concluded that the Proposed Stairway didn't require a "permit" for its construction, reasoning (from a structural standpoint) that it's an unregulated "landscape" feature. The Hickeys attack that conclusion by correctly pointing out that the Proposed Stairway is a "structure" under § 5.B of the By-Law: it's "[a]n assembled combination of materials at a fixed location" that is intended "to give support" to those going to and from the beach via the Way. (The Stairway also does not fall within any of the exceptions to the "structure" definition: stairways aren't "boundary or retaining walls, fences, flag poles, self contained heating or ventilating equipment and the like.") Section 2.3.3.5 provides further evidence that the By-Law considers facilities like the Proposed Stairway to be "structures." Section 2.3.3.5 expressly provides that "[n]o structure other than a . . . stairway . . . shall be located within fifty (50) feet" of various natural features. (Emphasis added.) If the By-Law didn't consider "stairways" to be "structures," § 2.3.3.5's exception for "stairways" in proximity to certain landforms would be unnecessary.

The Board nevertheless might have correctly ruled that the Proposed Stairway isn't subject to the By-Law's side-yard setback requirements. The Board appears to have approached the issue by examining § 2.3.2 of the By-Law, which imposes setback requirements only on "dwelling units," "hotel/motels or motor courts," and "other permitted principal structures." The Stairway clearly doesn't fall into the first two categories. What about the third? Section 5.B defines "principal structures" as "[t]he structure within which the primary activity of the principal use of a given lot occurs." (Emphasis added.) A "lot" under § 5.B is "[a] parcel of land not divided by a street, in one (1) ownership, with definite boundaries ascertainable by recorded plan or deed, and used or set aside and available for use as the site of one (1) or more buildings or for any other definite purpose."

The Board reasoned that the Way isn't a "parcel of land" for purposes of § 5.B's definition of "lot"; instead, the Board held that the Way was "a portion of a street network providing access." On appeal, the Board offers no defense of the assertion in its decision that the Way is not a "parcel of land." The Board leans more heavily on the argument that the Way is "street," and therefore can't be a "lot" for that reason. But the Board's decision doesn't refer to the By-Law's definition of "street" in concluding that the Way isn't a "lot." (It's possible that for purposes of identifying "lots" or "parcels of land," the ZBA historically has employed a notion of "street" that's not found in § 5.B, but no one introduced at trial evidence of that practice. So based on the current record, the Court has to assume that there's only one type of "street" under the By-Law.) Complicating matters further, the Board's decision doesn't parse (or even use) the words that appear in § 5.B's definition of "street." That definition reads: "A way which affords the principal means of access as defined in M.G.L. Ch.90 and 41, §81L."

Does § 5.B's definition of "street" bear on § 5.B's definition of "lot"? The Board's decision doesn't say. If the "street" definition does apply, there are further issues the Board's decision doesn't address: the definition of "street" contains both grammatical and substantive ambiguities that leave one wondering how the Board applied that definition to the Way, if the Board did so at all.

When a court that is reviewing a board's decision under § 17 encounters issues like those surrounding the definitions of "lot" and "street," it's helpful to get the board's interpretation in the first instance. So that's what this Court will order here. And while the Board is at it, it should address two other By-Law issues.

The first lurks in § 5.B's definition of "lot." Whether something's a "lot" under § 5.B appears to depend on several factors. First, it has to be a "parcel of land"; whether the Way meets that definition is uncertain, for the reasons explained above. Second, the parcel (if it is one) must "not [be] divided by a street." Whether the Way meets that requirement also is uncertain. Third, the parcel (if it is one) must have "definite boundaries ascertainable by recorded plan or deed"; the Way possesses such features. Fourth, the parcel (if it is one) must be "used or set aside and available . . . for [a] definite purpose." The Way has been set aside and is available for use as a way. But there's one last requirement for a "lot" under § 5.B: whether the parcel is "in one (1) ownership. . . ." The Hickeys concede that there are multiple owners of the Way. May a parcel of land be a "lot" if it has multiple owners? If so, what does § 5.B mean when it talks about "lots" being "in one (1) ownership"? The Board didn't examine that issue in its decision. It must do so on remand.

The other missing Board interpretation is how the By-Law regulates (if at all) the use of the Proposed Stairway. Section 2.2.1 of the By-Law provides (emphases added):

[S]tructures shall be . . . used and the premises shall be used only as set forth in the "Use Regulations Schedule", except as exempted by Section 2.4 or by statute. Where an activity might be classified under more than one of the uses in the Use Regulations Schedule, the more specific classification shall determine permissibility; if equally specific [sic] the more restrictive shall govern. Any use not specifically enumerated in a district herein shall be deemed to be prohibited.

Two things are notable about § 2.2.1. First, it pertains to "structures" (the Proposed Stairway is one of those) and "the premises" of such structures. Section 2.2.1 doesn't use the term "lot"; it uses the undefined word "premises." When a bylaw doesn't define a term, the court must give that term its plain meaning when read in the context of the entire ordinance. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Shirley Wayside, 461 Mass. at 477. The American Heritage Dictionary of the English Language (1976) defines "premises" in pertinent part as "[l]and and the buildings upon it."

Section 2.2.1 thus appears to make the Proposed Stairway and its "premises" - the Way subject to § 2.2.2's Use Regulations Schedule. The trouble is that the Proposed Stairway doesn't appear to be one of the allowed "principal uses" of properties in the R-40 District ("One or two dwelling unit," "Dwelling, One Unit With Accessory Apartment," "Child Care Facility," "Community Residential Home," "Temporary Uses," "Home Occupation," "Stable," "Temporary Construction Office," and "Non-Commercial Scale Solar Energy Electrical Generator"). It's true that several stairways dot Dennis's North Shore (indeed, even the Hickeys have a stairway), but the Hickeys' stairway and their use of that stairway are accessory to the lawful principal use of their property as a single "dwelling unit."

Why is this an issue? Because of the second notable feature of § 2.2.1, a feature that appears in its last sentence: "Any use not specifically enumerated in a district herein shall be deemed to be prohibited." In its decision, the Board disclaimed the power to regulate uses of "ways" for "views, resting or recreating," but that statement appears to be at odds with the text of § 2.2.1, which suggests that, once someone builds a "structure," the By-Law regulates its use and the use of the "premises." That Pathways wants to erect a "structure" on the Way distinguishes its situation from those involving "pedestrian facilities" that don't employ "structures." So on remand, the Board needs to explain how it interprets § 2.2.1 and the Use Regulations Schedule in the context of the Proposed Stairway.

An order of remand will enter accordingly.