MISC 18-000028

March 21, 2019

Nantucket, ss.



In February 2017, the defendant Town of Nantucket issued a request for proposals to construct a "workforce rental community" on two abutting Town-owned lots at 6 Fairgrounds Road in Nantucket. The winning proposal, dubbed by defendant HallKeen Management, Inc., as "Ticcoma Green," resulted in an August 2017 application to the defendant Nantucket Planning Board for a special permit with site plan review. The Board granted the requested permit in November 2017. Three homeowners in the vicinity of the proposed development appealed the Board's decision to this Court under G.L. c. 40A, § 17, and sought a declaration pursuant to c. 240, § 14A as to the application of one of Nantucket's Zoning By-laws to the project. After hearing the parties' cross-motions for summary judgment, this Court upholds the Board's decision.

Before turning to the parties' contentions, it's helpful to understand their precise claims. Plaintiffs Carol Andersson, Thomas W. Arena, and Elihu S. Tuttle originally challenged the Board's decision on three grounds. They withdrew one of those challenges -- whether one of Ticcoma Green's access roads impermissibly lies within a residential zone – at oral argument on the parties' cross-motions for summary judgment. Plaintiffs' other two challenges are (a) whether the By-law allows construction of a project as dense as Ticcoma Green at 6 Fairgrounds Road (the "Site") and (b) whether the By-law requires nothing besides "plantings, fencing, walls, or other improvements to mitigate [project] impacts to abutting properties" in a twenty-foot "buffer area" along the southern edge of Ticcoma Green (the "Project Buffer").

Defendants deny Plaintiffs' claims. Defendants also dispute Plaintiffs' standing. Defendants contend that none of the Plaintiffs enjoys the presumption under c. 40A, § 17 that he or she is a person "aggrieved" by the Board's special permit for Ticcoma Green. Defendants also argue that the By-law doesn't protect any of the interests Plaintiffs claim would be harmed were Ticcoma Green to be built, and that Plaintiffs lack sufficient evidence of harm.

The parties presented several issues to the Court on cross-motions for summary judgment. The Court issued preliminary rulings as to those issues in January 2019. The Court agreed with Defendants that under id. at §§ 11 and 17, none of the Plaintiffs is an "abutter," or even an "abutter to an abutter," to the Site. This Decision will explain that ruling in greater detail. The Court agreed with Plaintiffs, however, that the By-law protects their interest in traffic safety along the street on which all three Plaintiffs reside, Ticcoma Way, and that disputes of fact prevent the Court from entering summary judgment against Plaintiffs on their traffic claims.

While the Court wasn't ready to close the door on Plaintiffs' standing, the Court indicated it would reject most of Plaintiffs' attacks on the Board's decision. The Court rejected Plaintiffs' "illegal density" argument altogether. This Decision will explain why. As to their "Project Buffer" argument, the Court preliminarily rejected Plaintiffs' interpretation of the pertinent By-law, but didn't resolve (a) what the By-law actually allows in the Project Buffer besides "plantings, fencing, walls, or other improvements to mitigate [project] impacts to abutting properties," or (b) whether what Ticcoma Green proposes to put in the Project Buffer complies with the By-law as properly interpreted.

Rather than go to trial on the unresolved Project Buffer issues (a trial at which Plaintiffs would have had to prove their standing), in March 2019, Plaintiffs waived all challenges to the Board's resolution of the Project Buffer issue, save Plaintiffs' contention that the By-law allows nothing in the Project Buffer other than "plantings, fencing, walls, or other improvements to mitigate [project] impacts to abutting properties." (Plaintiffs also conceded at page 3 of their Memorandum of Law Concerning the Necessity of Trial that "the record plans approved by the Planning Board (and in the summary judgment record) provide sufficient detail on what is proposed within the buffer area." That concession eliminated the need for trial as to what Defendants plan to build.) Plaintiffs' Memorandum and their March 2019 Stipulation thus allow this Court to enter summary judgment in favor of Defendants, and against Plaintiffs, on all of Plaintiffs' challenges to the Board's decision, without reaching the question of whether Plaintiffs have standing to bring those challenges. See Mostyn v. Dep't of Environmental Protection, 83 Mass. App. Ct. 788 , 792 & n. 12 (2013).

Plaintiffs Lack Presumed Standing. Plaintiffs' entitlement (or not) to a presumption of standing under c. 40A, § 17 turns on geography. The undisputed geographic facts are these: the two Town-owned lots that comprise the Site, Lots 83 and 84, abut the south side of a lot that hosts the Town's public-safety facilities. Lot 84 bounds Lot 83 to the west. Both lots are undeveloped. West of Lot 84 is Fairgrounds Road. East of Lot 83 is an as-yet unbuilt, north/south public way, to be called Waitt Drive, and another undeveloped Town-owned lot, Lot 82. (Lot 82 looks as if it once was the northeast corner of Lot 83. The Town's public-safety lot bounds Lot 82 to the north; Lot 83 bounds the western and southern sides of Lot 82; and Waitt Drive bounds Lot 82 to the east.)

The south side of the Site is the one that's closest to Plaintiffs' properties. Each Plaintiff lives on the south side of Ticcoma Way. Ticcoma Way runs east/west. It intersects Fairgrounds Road south of the Site, but not immediately south of the Site. Instead, on the north side of Ticcoma Way, separating the Site from the Way, are nine lots. Plaintiffs own none of them. (Eight of the lots are undeveloped and are owned by the Town. The ninth lot, which is across Ticcoma Way from two of the Plaintiffs, is owned by a non-profit affordable-housing organization; there's a structure on that lot.) In other words, between each of the Plaintiffs' properties and the Site, there's a public way (Ticcoma Way) and at least one other property.

A person who seeks to appeal a zoning board's decision under c. 40A, § 17 must have standing to do so. See Barvenick v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992). Section 17 provides that persons who are "aggrieved" by a board's decision have such standing. Persons enjoy a rebuttable presumption of "aggrievement" if they are "parties in interest" within the meaning of c. 40A, § 11. See Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233 , 235 (2018). That statute reads in pertinent part:

"Parties in interest" . . . shall mean the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the property line of the petitioner as they appear on the most recent applicable tax list, . . . the planning board of the city or town, and the planning board of every abutting city or town.

Each Plaintiff claims to be an "abutter to the abutters within 300 feet" of the southern boundary of the Site. Their argument works, however, only if the Court ignores the intervening Ticcoma Way. Section 11 doesn't allow the Court to do that. "'Abut' means, among other things, '[t]o touch at the end; . . . terminate on; end at; . . . reach or touch with an end.'" Barlow v. Chongris & Sons, Inc., 38 Mass. App. Ct. 297 , 299 (1995), quoting Black's Law Dictionary 11 (6th ed. 1990) (brackets in original). When § 11 talks of one landowner "abutting" another "abutter," § 11 must be taken literally. See Murrow, 93 Mass. App. Ct. at 235 (each word and phrase in § 11 must be given meaning).

It's not as if the General Court wasn't aware of roads when it was enacting § 11. The statute expressly deals with roads: it defines "parties in interest" as including, for example, "owners of land directly opposite" a development site "on any public or private street or way. . . ." If Plaintiffs' reading of § 11's "abutter" provisions were correct, the General Court would have had no reason to include in § 11 a separate provision that addresses the rights of landowners "directly opposite on any . . . street or way" to a development: they'd be "abutters" with standing that way. A court should not interpret a statute in a manner that renders one of its provisions superfluous. See Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012). Since Plaintiffs' properties abut Ticcoma Way, and since no part of Ticcoma Way abuts the Site, Plaintiffs are not "parties in interest" under c. 40A, § 11, and thus they are not entitled to a presumption of standing under id. at § 17. Thus, even if their substantive claims survived summary judgment (this Court rules they don't), Plaintiffs would have to prove at trial their standing.

Ticcoma Green Doesn't Violate the By-Law's Limits on Units and Bedrooms. The Board granted a special permit for Ticcoma Green pursuant to § 139-8.D of the By-law. Section 139-8.D provides in pertinent part (emphases added):

Special permit issued by the Planning Board to create workforce homeownership housing in the R-5 Zoning District through a workforce homeownership housing bonus lots allowance and in the CN Zoning District through a workforce rental community. The purpose of this provision is to incentivize the creation of workforce and affordable rental and ownership housing opportunities; to promote consistency, quality, and flexibility in the site layout and design; to mitigate traffic congestion by encouraging the creation of compact neighborhoods proximate to compatible adjacent commercial uses that reduce the need for vehicle trips to already congested areas; and to promote economic vitality and a greater diversity of housing opportunities in compliance with objectives contained within plans adopted or accepted by the Town of Nantucket, Nantucket Planning and Economic Development Commission, or the Nantucket Housing Authority. This bylaw, which sets a minimum size lot area, is intended to allow for aggregation of buildings, parking spaces, and open areas to improve design quality . . . .

(1) Requirements.

(a) The following requirements shall apply to workforce homeownership housing bonus lots in the R-5 Zoning District and to a workforce housing rental community in the CN Zoning District.

[1] Minimum lot requirement of 60,000 square feet;

. . .

(2) Workforce homeownership housing bonus lots.

. . .

(3) Workforce rental community.

(a) Rental dwelling units in one or more structures, [sic] shall be subject to the following requirements:

[1] The maximum number of dwelling units shall not exceed 32 . . . .

[2] The maximum number of bedrooms contained within the workforce rental community lot shall not exceed 57.

[3] At least 10% of the total dwelling units within the workforce rental community must contain at least three bedrooms, unless such requirement is reduced by a future binding directive from the Commonwealth . . . which confirms that fewer than 10% three- bedroom units may be included in the workforce rental community while still confirming that all of the units in the workforce rental community shall be eligible for inclusion on the Town's Subsidized Housing Inventory. In such an instance, the Planning Board shall have the discretion to approve fewer three-bedroom units within the workforce rental community . . . as long as the requirement described above with respect to confirmation of the eligibility of all of the units in the workforce rental community relative to inclusion on the . . . Inventory has been met.

(b) A minimum buffer area of at least 20 feet shall be established between the workforce rental community and residentially zoned abutting properties. The Planning Board may require the buffer area to include plantings, fencing, walls, or other improvements to mitigate impacts to abutting properties.

. . .

(d) The Planning Board may reduce, by up to 100%, the side and rear yard setbacks where two or more workforce rental community lot projects are adjacent to each other.

It's undisputed that, while the Board treated Ticcoma Green as one cohesive project, the Board approved Ticcoma Green as two adjacent developments, one on Lot 83 and the other on Lot 84, and thereby allowed construction of a total of 64 units, containing 114 bedrooms. Lots 83 and 84 each have an area of approximately 62,436 square feet. Thus, each lot is 2436 square feet over the minimum area that § 139-8.D(1)(a)[1] requires for a single § 139-8.D-eligible lot. The Board also "reduce[d] . . . by 100%" (in other words, waived) the internal side-yard setback between Lots 83 and 84. (While the Board's decision states that the Board waived the setback pursuant to § 139-8.D(2)(b) of the By-Law, the parties agree that the Board actually employed § 139-8.D(3)(d) of the By-law to do that. Plaintiffs don't challenge the Board's right to eliminate the setback, however.)

Plaintiffs contend that §§ 139-8.D(3)(a)[1]-[2] cap the total number of units allowed under a workforce-rental-housing special permit at 32, and limit the total number of bedrooms to 57. Plaintiffs also argue that one can't build two (or more) § 139-8.D projects next to each other, as the Board allowed in this case. Plaintiffs' arguments don't square with the language of the By-law. A court is to interpret a zoning bylaw as it would a statute. See Shirley Wayside Limited Partnership, 461 Mass. at 477.

We interpret a statute according to the intent of the Legislature, which we ascertain from all the statute's words, "construed by the ordinary and approved usage of the language" and "considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished." . . . "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." That said, we will not adopt a literal construction of a statute if the consequences of doing so are "absurd or unreasonable," such that it could not be what the Legislature intended. . . .Our principal objective is to ascertain and effectuate the intent of the Legislature in a way that is consonant with sound reason and common sense.

Ciania v. MacGrath, 481 Mass. 174 , 178 (2019), quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 749 (2006), and Sharris v. Commonwealth, 480 Mass. 586 , 594 (2018).

As an initial matter, nothing in § 139-8.D says, in so many words, that it prohibits abutting workforce rental developments. In fact, § 139-8.D contains multiple clues that adjacent workforce rental developments are perfectly fine. The Court starts with § 139-8.D's opening paragraph, which describes something called a "workforce rental community." The By-law doesn't define that term. When a by-law doesn't define a term, a court must construe it according to its plain meaning and its context. See Shirley Wayside, 461 Mass. at 477. The American Heritage Dictionary of the English Language (1976) (hereafter, the "Dictionary") defines "work force" in pertinent part as "[a]ll workers potentially available to a nation, project, industry or the like." Two parts of § 139-8.D indicate that the "workforce" described in § 139-8.D is only a subset of the nation's workforce: § 139-8.D's "workforce" is that (i) potentially available on the island of Nantucket (ii) whose households "earn[] at or below 80% of the area median income." See §§ 139-8.D(2)(a)[2], 139-8.D(3)(a)[1]. The Dictionary further defines "rental" in pertinent part as "[p]roperty available for renting." Section 139-8.D uses the term "rental" in contrast to the term "homeownership."

The word in the phrase "workforce rental community" that's key to this case is the last word, "community." The Dictionary defines "community" in pertinent part as "[a] group of people living in the same locality. . . ." A plain reading of the phrase "workforce rental community" thus is a group of Nantucket households, some of which earn at or below 80% of the area median income, who rent their residences. That reading fits each time § 139-8.D. uses the phrase "workforce rental community." Thus, when § 139-8.D(1)(a)[1] provides that "a workforce housing community" (note: "community" is in the singular) must be on a lot having a minimum of 60,000 square feet, a plain construction of § 139-8.D(1)(a)[1] would require a workforce-rental grouping to be on a "lot" (thankfully, the By-law defines "lot"; the parties concede that Lots 83 and 84 are "lots") having a minimum of 60,000 square feet. The Court's plain-meaning interpretation of "workforce rental community" also works in the multiple places the phrase appears in § 139-8.D(3). (That includes § 139-8.D(3)(a)[2], which uses a slightly different phrase, "workforce rental community lot." The Court interprets that phrase as a "lot" (as defined under the By-law) that is the site of a "workforce rental community.")

The Court's examination of the phrase "workforce rental community" as it appears throughout § 139-8.D is a prelude to the Court's analysis of § 139-8.D(3)(d) of the By-law. That subsection states (emphasis added): "The Planning Board may reduce, by up to 100%, the side and rear yard setbacks where two or more workforce rental community lot projects are adjacent to each other." The By-law doesn't define the phrase "workforce rental community lot project," but from its context in § 139-8.D, this Court interprets the phrase as a development upon a single "lot" that's the site of a "workforce rental community." Because § 139-8.D(3)(d) expressly allows the Board to eliminate the side and rear yard setbacks between "adjacent" qualifying "workforce rental communities," it stands to reason that the By-law allows adjacent "workforce rental communities." Otherwise, § 139-8.D(3)(d) would be superfluous – and as noted earlier, Shirley Wayside, 461 Mass. at 477, doesn't promote interpretations of by-laws that render provisions superfluous.

The Court thus construes § 139-8.D as the Board did: § 138-8.D allows adjacent "workforce rental communities" such as the two approved for Ticcoma Green. The Board's interpretation of § 139-8.D is consistent with the By-law's stated purposes for workforce communities. The Board's interpretation "incentivize[s] the creation" of workforce and affordable rental housing, as it prompted a positive response from HallKeen to the Town's RFP. Allowing two qualifying developments to be built side by side, with a common design, scheme and operation, promotes "consistency, quality, and flexibility in . . . site layout and design. . . ." It creates a "compact neighborhood[]," and avoids placing two workforce communities in two separate places. The Town adopted § 139-8.D expressly "to allow for aggregation of buildings, parking spaces, and open areas," provided that each workforce housing community meets (as Ticcoma Green does) § 139-8.D's minimum lot-size requirements. Plaintiffs provide no alternative interpretation of § 139-8.D(3)(d) – the By-law's key provision on the subject of multiple communities -- that supports their view that Ticcoma Green may build no more than 32 units of housing and no more than 57 bedrooms.

Project Buffer is Not a Restricted "Open Space" Zone. Plaintiffs' second attack on the Board's decision turns on § 139-8.D(3)(b) of the By-law. It provides: "A minimum buffer area of at least 20 feet shall be established between the workforce rental community and residentially zoned abutting properties. The Planning Board may require the buffer area to include plantings, fencing, walls, or other improvements to mitigate impacts to abutting properties." It's undisputed that the Site is within a "CN" District under the By-law. The south side of the Site, however, abuts an R-5 (residential) zone. Ticcoma Green thus had to include a Project Buffer along the south side of the Site.

The Board's decision contains multiple conditions. They include condition (C)(1), which required HallKeen to submit within six months of the Board's decision a "fully engineered final plan set," one consistent with the decision's requirements. That plan set is in the summary- judgment record. It's titled "Ticcoma Green, Ticcoma Way, Nantucket Massachusetts," dated September 25, 2018 and prepared by Horsley Witten Group, Inc.

The plan set depicts within the Project Buffer these elements of Ticcoma Green:

* A five-foot exposed-aggregate concrete path, running east/west for approximately 125 feet.

* A fifteen- to twenty-foot "grass pave" fire lane, running east-west just south of the concrete path for approximately 150 feet.

* Three portions of Ticcoma Green's paved parking lot, with associated granite curbing and catch basins. Each of the three encroaching parking areas occupies approximately 8.4 feet of the northern side of the Project Buffer; the longest such portion stretches approximately 140 feet. There also will be subterranean structures next to or beneath the encroaching parking areas to handle storm water.

* Eight post lights, positioned along the southern edges of the encroaching parking lots.

* Two electric-vehicle charging stations (associated with two of the encroaching parking spaces), each having a "bollard light."

* Underground water, sewer and electric lines.

The plan set shows that, other than the items listed above, the Project Buffer will be landscaped with trees and shrubs.

The parties' dispute centers on the meaning of § 139-8.D(3)(b)'s term, "buffer area." The By-law doesn't define the term. The Dictionary offers two similar definitions of "buffer": "1. Something that lessens or absorbs the shock of an impact. 2. One that protects by intercepting or moderating adverse pressures or influences." The Dictionary notes that "buffer" also is "[o]ften used attributively: a buffer zone." (Emphasis in the original.) "Buffer area" easily substitutes for "buffer zone," and is thus (in plain terms) a physical place that lessens, absorbs or moderates impacts from a workforce project. The second sentence of § 139-8.D(3)(b) supports this reading of "buffer area": it allows the Planning Board to "require the buffer area to include plantings, fencing, walls, or other improvements to mitigate impacts to abutting properties." (Emphasis added.)

At pages 17-18 of their Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment, Plaintiffs accept (and even promote) the Court's plain-meaning construction of the term "buffer area." Plaintiffs then take their argument a step further. They point out that § 139-8.A(4)(a)[5] of the By-law, a provision that governs "Open space developments" (and not "workforce" developments) says this: "In any LUG Zone, a minimum buffer of 50 feet of permanently restricted and undisturbed open space . . . shall be required between the proposed lot line of any open space residential development lot and the outside boundary of the subdivision tract." (Emphasis added.) Plaintiff argue that § 139-8.D(3)(b)'s "buffer area" must be read the same as § 139-8.A(4)(a)[5]'s "buffer of 50 feet of permanently restricted and undisturbed open space."

While courts must interpret by-laws in a manner that creates a "consistent and harmonious" whole, see Vining Disposal Serv., Inc. v. Selectmen of Westford, 416 Mass. 35 , 38, 1993), that principle doesn't allow the courts to ignore fundamental differences in words and phrases. The problem with Plaintiffs' argument is this: § 139-8.A(4)(a)[5] doesn't use the term "buffer area." Its operative term is a "buffer . . . of permanently restricted and undisturbed open space." According to the notes that accompany the version of § 139-8 that the parties submitted at summary judgment, the Town of Nantucket adopted § 139-8.A(4)(a)[5]'s lengthier "buffer" formulation years before it enacted § 139-8.D(3)(b). If the Town wanted "buffer area" to mean a "buffer . . . of permanently restricted and undisturbed open space," there are multiple ways the Town could have indicated that. The Town chose not to do so. That suggests that the terms aren't identical.

Plaintiffs' argument also overlooks a critical difference under the By-law between "open space" developments and "workforce" developments: the former aim to encourage, among other things, "the permanent preservation of open space." See By-law, § 139-8.A, preamble (d). Section 139-8.D doesn't list preservation of open space among the goals of "workforce" developments. The only thing that § 139-8.D requires to be "perpetual" about workforce developments is their commitment to affordability. See § 139-8.D(a)(2).

So a "buffer area" under § 139-8.D(3)(b) need not be undisturbed or free from the elements of a workforce rental development. Section 139-8.D(3)(b) also does not suggest (nor would a plain-meaning interpretation of "buffer area" require) that the area eliminate a workforce rental development's impacts on the residential zone: the second sentence of § 139- 8.D(3)(b) sets the goal of the buffer area as only "mitigation" of impacts. The Court need not further explore in this case, however, the scope or limits of § 139-8.D(3)(b)'s "buffer area" requirements. Plaintiffs have stipulated that unless § 139-8.D(3)(b) requires, in effect, building nothing in a "buffer area" other than Board-mandated impact-mitigation measures (this Court rules that the By-law allows more than that), the Project Buffer passes muster under § 139- 8.D(3)(b).

Judgment to enter accordingly.