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 concluding decision in this dispute among plaintiffs Brian and Mary Hickey, the defendant members of the Dennis Zoning Board of Appeals (the "Board"), and defendant Pathways Association, Inc. ("Pathways"). (This Court also is issuing today a decision in a related case, Hickey v. Pathways Ass'n, Inc., 16 MISC 00123 (MDV). While this decision contains all of the findings of fact and conclusions of law that pertain to this zoning dispute, a reader of this decision should first read today's decision in Pathways before reading this decision, as the Pathways decision provides helpful context.)

The Hickeys own a beachfront home in Dennis, Massachusetts. Next to their home is an area designated as a twenty-foot right of way (the "Way"), although as of the summer of 2019 there was little in the Way that indicated it served as such.

The Way begins at a public street called Shore Drive. The Way proceeds northerly to the edge of a 40-foot-high coastal bank. In this initial section, as of the summer of 2019, the Way was mostly overgrown, and had a meandering footpath. The aforementioned bank descends sharply to a beach. The Way as laid out plunges with the bank, arrives at the beach below, and ends at Cape Cod Bay, wherever the Bay happens to be during its tidal cycle.

Pathways is a neighborhood association. It has members, and those members have easement rights in the Way. (Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 (2015) ("Hickey I") explains how Pathways's members obtained their easement rights.) Pathways would like to build a stairway and related elements within the Way (the "Proposed Stairway"), so as to ease the passage of its members up and down the coastal bank.

In January 2016, Pathways asked the Town of Dennis's Building Commissioner for his interpretation of various provisions of the Town's Zoning By-Law (the "By-Law"), and whether they applied to the Proposed Stairway. In February 2016, the Commissioner determined that the Proposed Stairway consisted of "nothing more than landscape features designed for pedestrian access to the beach." The Commissioner further determined that the Town "does not require a building permit for landscape features and we would not require the applicants to seek relief from the [Board] for setbacks to a landscape feature."

In March 2016, the Hickeys timely appealed to the Board, pursuant to M.G.L. c. 40A, §§8 and 15, the Commissioner's February 2016 determinations. In April 2016, the Board upheld the Commissioner's ruling in what this decision calls "Board Decision #1." The Hickeys appealed Board Decision #1 to this Court. After a trip to the Appeals Court, see Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 (2018), the parties appeared for trial in May 2019 with respect to two issues: (1) whether the Hickeys have standing under c. 40A, §17, to appeal Board Decision #1; and (2) if so, whether Board Decision #1 was lawful.

In June 2019, pursuant to Rule 52, Mass. R. Civ. P., this Court issued findings of fact and conclusions of law after trial. The Court ruled that the Hickeys have standing to challenge Board Decision #1. See Hickey v. Oliveira, 27 LCR 264 , 268 (2019) ("Hickey III"). But the Court declined to reach the Hickeys' two challenges to the lawfulness of Board Decision #1, those challenges being that the Proposed Stairway allegedly violates (a) setback requirements found in §2.3.2 of the By-Law, and (b) the By-Law's restrictions on uses of land. The Court postponed consideration of the two challenges because the Hickeys' arguments rested on interpretations of various parts of the By-Law. The Board hadn't had the opportunity prior to the May 2019 trial to consider the Hickeys' positions or to provide interpretations of its own. See Hickey III, 27 LCR at 269-270.

The Court thus remanded the case to the Board for further consideration of the Proposed Stairway. The Board did so, and in a decision recorded with the Town of Dennis's Town Clerk on June 25, 2019 ("Board Decision #2"), the Board again concluded that the Proposed Stairway didn't require a building or any other zoning permit. The Hickeys timely moved without opposition to amend their original complaint in this Court so as to appeal Board Decision #2. The parties thereafter filed requests for supplemental findings of fact and post-trial briefs.

Having reviewed the parties' submissions, having heard their witnesses at trial, having reviewed their evidence, having received their stipulations of fact, having taken a view (which included the Way, the Hickey property, and several nearby coastal areas), 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 amended findings that, for the reasons given in Hickey III, the Hickeys have standing to appeal Board Decisions ##1 and 2. The Court further holds that the Proposed Stairway is not subject to By-Law §2.3.2's setback requirements, as the Board has reasonably interpreted §2.3.2 as not regulating structures placed in streets or ways. The Court nevertheless holds that Pathways's construction and operation of the Proposed Stairway would violate By-Law §2.2.2, which prohibits the use of "structures" for "private clubs, members only" in the Town of Dennis's R-40 Residential Zoning District, a district that includes the Way and the Hickey property. The Board thus was wrong to conclude that the Proposed Stairway requires no zoning relief whatsoever.

Here are the Court's findings, which replace the findings in Hickey III in their entirety:

1. The Hickeys own a beachfront property at 104 Shore Drive in Dennis, Massachusetts. They've owned the property since 1994. Their 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 Way first appeared on a registered-land plan in 1936. See Hickey I, 472 Mass. at 745.) The Hickey property extends on its north side to the mean low-water mark of Cape Cod Bay. For purposes of the By-Law, the Hickeys' property and the Way are in an R-40 Residential Zoning District.

3. In 1945, after Plan 647-F was registered, the Town of Dennis took a public easement (but did not take a fee interest) across several feet of the southern end of the Way, in order to widen the entirety of Shore Drive.

4. The Hickeys have an undivided partial interest in the fee beneath the Way. They also have easement rights in the Way.

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 Hickeys' yard, which has the effect of shortening the distance between the second-floor bedrooms of the Hickey residence and whatever may be happening on the abutting portions of the Way.

6. The Hickeys' north-facing backyard and the Way both reach the edge of the bluff at a ground elevation of approximately 40 feet. 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 feet vertically to the beach. Over the last 25 horizontal feet, where the slope descends from a ground elevation of approximately 20 feet to a ground elevation of 2.5 feet, large boulders armor the bluff, forming a revetment. That revetment extends along the Hickey property as well.

7. There are many properties along the bluff. Given its steep slope, many beachfront property 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 install, seasonally, removable metal ramps or stairways at the seaward end of what are intended to be more permanent stairways or platforms.

8. When the Hickeys bought their property 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 now occupied by the revetment. The Former Stairway included a removable aluminum stairway that crossed the lower end of the revetment and reached the beach.

9. For years, nothing controlled access to the Former Stairway. In 1997, residents in the Shore Drive area formed and incorporated Pathways to maintain 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 a.m. and 5:00 p.m. 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, associations other than Pathways maintain two paths east of the Way, both of which lead to the edge of the bluff and down stairway systems. Each path is enclosed, or partly enclosed, by solid, six-foot-high wooden fences. At the landward end of each of the fenced-in paths, there's a door with a 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 loitering on the Former Stairway, both day and night. The stairways that the Court observed during the May 2019 trial didn't 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 Shore Drive area began renting their properties seasonally to persons 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 disruptions 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). Those users left smashed bottles, discarded beer cans, unattended beach bonfires, and large amounts of trash in their wake. Sometimes when the Hickeys confronted misusers of the Way, persons obeyed the Hickeys' requests; other times, those persons showered the Hickeys with curses and vandalized the Hickey property.

13. The disruptive uses of the Former Stairway also included the launching of fireworks from the stairway. The use 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 interrupted the Hickeys' enjoyment of their property and frequently disturbed their sleep.

15. The Way has no designated parking area. No one introduced at trial any evidence of vehicular use of the Way, or parking within the Way. As of May 2019, the Way wasn't paved, nor did it have rocks, stones or gravel on it: the traveled portions of the Way were largely sandy or a mix of sand and low-lying coastal vegetation. 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 teenagers 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 Town of Dennis's 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," which is Agreed Trial 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 approximately twenty feet, the proposed path will come within six inches 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 nineteen-foot wooden walkway (the "Top Walkway"). The Stairway Plan calls the southernmost 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-foot 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 side 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-foot 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. There will be a 15.4-foot flight of stairs north of the Lower Platform/ Lower Landing. That flight will end 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-foot removable seasonal stair that will cross the lower part of the revetment and end at the beach.

25. The Stairway Plan shows that the Proposed Stairway will be 55 inches wide, other than at the Top Landing, the Middle Platform and the Lower Platform. On either side of the Proposed Stairway there will be a 36-inch-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 will be embedded either in the soil of the Way or atop boulders that form the revetment. The Proposed Stairway will have no enclosures other than its wooden side rails. The Proposed Stairway will 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, Middle Platform, Lower Platform, and other elements of the Stairway.

28. The Stairway Plans depict no barriers to entering any part of the Way or the Proposed Stairway. Pathways's president, John Hennessey, nevertheless testified that Pathways intends to install some means of limiting access to the Proposed Stairway. Pathways hasn't decided how to achieve that goal.

29. Hickey I and Loiselle v. Hickey, 93 Mass. App. Ct. 644 (2018), 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. The Town of Dennis adopted its first zoning By-Law in 1973. The record does not contain the original By-Law or its amendments. The By-Law provisions quoted below are found in Trial Exhibit 5, a copy of the By-Law that reflects all amendments through the May 5, 2015 annual town meeting in Dennis.

31. 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.

32. 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 buildings, structures, premises and their use will conform in all respects to the provisions of this By-Law."

33. 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.

34. 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."

35. The as-of-right "principal uses" for properties in the R-40 Residential Zoning District that are 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." Section 2.2.2 of the By-Law prohibits "Private club, for members only" uses in the R-40 District.

36. 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 [governing non-conforming structures and uses] or by statute."

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

38. 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."

39. 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.

40. 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."

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

42. 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."

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

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

45. 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."

46. 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."

47. 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."

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

49. 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 [sic] heating or ventilating equipment and the like."

50. 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."

51. 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."

52. Section 5.B defines "yard, rear" as "[t]he yard most distant from and generally opposite the front lot line. . . ."

53. 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."

54. Finding 2.2 in Board Decision #1 states in full: "A way is not a parcel of land, but rather a portion of a street network providing access. This is consistent with the plan provided by the applicant which does not illustrate a bound parcel of land where the stairs are proposed and as noted on Land Court Plan 647F."

55. Finding 2.7 in Board Decision #1 states: "Given the above 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."

56. In Board Decision #2, in response to the question of whether the Way is a "lot" for purposes of §5.B of the By-Law, the Board held that "[p]er Finding 2.2 in [Board Decision #1], the Board found that the '[W]ay is not a parcel of land, but rather a portion of a street network providing access.' As the [W]ay is not a parcel, it is therefore not a 'lot' for the purposes of Section 5.B."

57. In Board Decision #2, in response to the question of whether the Way is a "street" within the meaning of By-Law §5.B's definition of "street," the Board held:

Per Finding 2.2 in [Board Decision #1], the Board found that the "[W]ay is not a parcel of land, but rather a portion of a street network providing access." For purposes of Section 5.B and the definition of street, the Way is a street providing a principal means of access, in this case between Shore Drive and the water on the plan submitted to the Board of Appeals.

Section 5.B['s] definition of street relies, in part, on MGL Chapter 90. MGL Chapter 90 defines "way" as:

"Way", any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.

The way in question is a "private way laid out under authority of statute" and is recorded on Land Court Plan 647F.

58. In Board Decision #2, in response to the question of whether "the Way is "in one (1) ownership' for purposes of §5.B's definition of "lot,'" the Board stated: "Per Finding 2.2 in [Board Decision #1], the Board found that the '[W]ay is not a parcel of land, but rather a portion of a street network providing access.' The Way is not in one ownership."

59. In Board Decision #2, in response to the question of whether the By-Law allows Pathways's proposed use of the Proposed Stairway, the Board stated this:

Per Finding 2.2 in [Board Decision #1], the Board found that the "[W]ay is not a parcel of land, but rather a portion of a street network providing access." Section 5.B relies upon Chapter 41 Section 81L Subdivision Control[;] the Board cited the Dennis Subdivision Control By-law in reaching its decision.

The Board has made the following relevant findings to this issue [in Board Decision #1]:

Finding 2.3 "Pedestrian facilities are typically located within ways." Finding 2.4 "Ways are generally not wide enough for street surfaces and pedestrian facilities to comply with setbacks. In fact, the Subdivision Control By-law typical cross-section would result in pedestrian facilities being as close as 4.5 feet off the edge of a road layout."

Finding 2.5 "In many instances across town, pedestrian facilities are located along the outer edge of the way resulting in no setback for such facilities."

Finding 2.6 "The staircase in question is a pedestrian facility similar to a sidewalk located within a way." Even if the staircase is a "structure" under the bylaw, a sidewalk and bridge would also be considered structures and rarely meet setbacks.

Therefore the Board concludes pedestrian facilities are commonly located within ways; pedestrian facilities, typically sidewalks, are similar to the staircase; sidewalks are assembled material providing support; therefore per Finding 2.7 the staircase, as a pedestrian facility, is an allowed use of the [W]ay.

*.*.*

Review under M.G.L. 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 Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012) (citations omitted, quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-74 (2003); Atlanticare Med. Ctr. v. Comm'r of the Div. of Med. Assistance, 439 Mass. 1 , 6 (2003); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381-383 (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 an illegal structure that would foster an illegal use. In Hickey III, 27 LCR at 269, this Court concluded that the only means by which the By-Law could regulate the structural aspects of the Proposed Stairway would be through By-Law §1.3.1. Section 1.3.1 requires the Building Commissioner 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." Hickey III further agreed with the Hickeys that the Proposed Stairway is a "structure" within the meaning of By-Law §5.B. See Hickey III, 27 LCR at 269. The Hickeys argued at trial that By-Law §2.3.2 requires "other permitted principal structures" in the R-40 Residential Zoning District to be set back a minimum of 25 feet from side lot lines, and given that the Way is only twenty feet wide, Pathways could build no structure in the Way without obtaining a variance from §2.3.2.

In Board Decision #2 and in its post-trial brief, the Board is clear that it rejected the Hickeys' setback argument using this reasoning: (a) By-Law §5.B defines §2.3.2's term "principal structures" as "[t]he structure within which the primary activity of the principal use of a given lot occurs." (Emphasis added.) (b) 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." (c) According to Board Decision #2, the Way isn't a "parcel of land" within the meaning of §5.B; instead, in the words of Board Decision #2, the Way is "a portion of a street network providing access," and the By-Law doesn't regulate structures within ways or streets. Hence, (d) any structure built on the Way (or any other street or way in the town of Dennis) is not subject to §2.3.2's setback requirements.

The Hickeys counter that, under the plain meaning of the term "parcel of land" (see, for example, American Heritage Dictionary of the English Language, 953 (1976) ("parcel" means "[a] portion or plot of land, usually a division of a larger area"), §5.B's definition of "lot" - which depends on whether something is a "parcel of land" - must include the Way. Two countervailing arguments overcome the Hickeys' plain-meaning argument. The first countervailing argument is that a court must use the plain meaning of bylaw terms in context. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Shirley Wayside, 461 Mass. at 477. Read in context, the phrase "parcel of land" as it appears in §5.B's definition of "lot" suggests that it applies only to traditionally buildable acreage. The "lot" definition concludes, for example, with an express focus on the parcel as having been "used or set aside and available for use as the site of one (1) or more buildings or for any other definite purpose." (Emphasis added.) The Board correctly observed that one doesn't typically think of streets and ways as being buildable. Instead, streets and ways are areas for travel, and not occupation. See Nantucket Conservation Found., Inc. v. Russell Mgt., 380 Mass. 212 , 216 (1980) ("the general grant of a right of way without more create[s] only a right of ingress and egress"); Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 496 (2008) ("A right of way provides rights of ingress, egress, and travel over the land subject to the easement.").

The second countervailing argument is that, since the By-Law doesn't define "parcel of land," the Board may interpret the phrase as it reasonably chooses. If the Board's interpretation is indeed reasonable and not contrary to the By-Law or statute, this Court must defer to that interpretation. See Shirley Wayside, 461 Mass. at 474-475. The Board's decision not to read §5.B's phrase "parcel of land" as including streets and ways is consistent with Nantucket Conservation and Busalacchi's treatment of rights of way, as well as the By-Law as a whole. The Hickeys also haven't directed the Court to any conflicting provisions of the By-Law or statute. The Court thus holds that the Board acted lawfully in concluding that §2.3.2's setback requirements don't apply to the Proposed Stairway.

The Court now turns to the Hickeys' illegal-use argument. By-Law §2.2.1 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.

Section 2.2.1 differs from By-Law § 2.3.2 in two ways. First, § 2.2.1 addresses the use of "structures," and not just "principal structures" (the term appearing in § 2.3.2 that the Board concluded does not apply to things built on streets or ways). Second, § 2.2.1 addresses the use of "premises," a term the By-Law doesn't define (unlike the term "lot," which the Board concluded does not include streets or ways). The plain meaning of "premises" is the "[l]and and the buildings upon it." American Heritage Dictionary at 1034. The surrounding context of § 2.2.1 doesn't change the plain meaning of "premises," other than perhaps to modify the Dictionary's phrase "buildings upon it" to "structures upon it."

In Hickey III, 27 LCR at 270, this Court wrote:

Section 2.2.1 . . . 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 . . . . 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."

By contrast, By-Law §5.B defines "Private club, for members only" as a "structure or facility owned and/or operated by a corporation or association of persons for social or recreational purposes." The By-Law's Use Regulations Schedule prohibits "Private club, for members only" uses in the R-40 District.

Hickey III, 27 LCR at 270, continues:

Why is this an issue? Because of [another] 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 [Board Decision #1], 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.

The Board answered on remand Hickey III's "use" questions, but only by repeating the Board's reasons why the By-Law doesn't regulate structures within streets or ways. Board Decision #2 doesn't analyze the use issue at all. The post-trial briefs of the Board and Pathways filed with this Court following remand are likewise silent about permissible uses. It's not as if municipalities are prohibited from regulating the use of private ways: while cases have advised (and held) that municipalities may not exercise their zoning powers to regulate the use of public ways, see Harrison v. Textron, Inc., 367 Mass. 540 , 549 (1975) (stating proposition in dicta); Chaput v. Kane, 26 LCR 557 , 560 (2018) (Long, J.) (adopting Harrison's dicta), they're free to control the use of private ways. Martin R. Healy, et al., Massachusetts Zoning Manual §12.3.16 (5th ed. 2015), collects multiple cases upholding local board decisions that a private way, lying within a residential district, may not be used as of right under a municipality's zoning laws in order to access commercial or industrial uses lying in an adjoining district, on the theory that a way's underlying zoning governs the way's use. There are also instances where municipalities have adopted zoning bylaws that expressly list "streets" as an as-of-right use of properties. See, for example, Bruni v. Planning Bd. of Ipswich, 73 Mass. App. Ct. 663 , 672 (2009). But the Town of Dennis's By-Law doesn't list "streets" as a permitted use within R-40 Districts.

In Board Decision #1, the Board wrote 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. . . ." Regardless of how the Board feels about the wisdom of regulating the use of private ways, or the burdens of enforcing such regulations, Dennis's town meeting has adopted specific use regulations in By-Law §2.2.2. Section 2.2.2 expressly prohibits in the R-40 District the use of "structures" by "Private clubs, for members only." By-Law §2.2.1 further commands that "[a]ny use not specifically enumerated in a district herein shall be deemed to be prohibited." Both the Board and Pathways point to nothing elsewhere in the By-Law or Massachusetts statutes that permits the Board to ignore the By-Law's clear commands.

Since the Board misapplied the By-Law's provisions regarding the use of the Proposed Stairway, the Court must VACATE Board Decisions ## 1 and 2. Judgment to enter accordingly.