MISC 18-000402

NOVEMBER 18, 2020




The plaintiff in this action, Chiu Wei-Chi, has appealed a decision of the Duxbury Zoning Board of Appeals ("Board") denying the plaintiff's request for zoning enforcement. In its decision, the Board upheld a decision of the Duxbury building inspector denying the plaintiff's request for enforcement of Section 611 of the Duxbury Zoning Bylaws (the "Bylaw").

The activities complained of by the plaintiff were certain grading activities of the defendant Duxbury Yacht Club ("Yacht Club") on the tee area and fairway of the 8th hole of its golf course adjacent to the plaintiff's property. These activities included addition of a landscape berm behind the tee box area, relocation and improvement of the tee boxes, removal and replacement of turf (re-sodding), dredging of an existing irrigation pond, removal of approximately 10 trees, and relocation and improvement of a gravel cart path. [Note 1] The plaintiff asked the building inspector to enforce the provisions of Section 611 of the Bylaw, which require a special permit to be issued by the Planning Board for clearing and grading in connection with land development in excess of 30,000 square feet.

The building inspector denied the plaintiffs enforcement request on the ground that in conducting the activities complained of by the plaintiff, the Yacht Club was "within their right to maintain the golf course and grounds." [Note 2] On appeal from the building inspector's decision, the Board upheld the denial of enforcement. The Board found that, based on the Town's planning director's analysis stating that only approximately 18,000 square feet of land on the golf course had been cleared or graded, the threshold of 30,000 square feet before a special permit could be required had not been reached. [Note 3]

The extent of these activities in terms of square footage remains disputed, with the plaintiff claiming that clearing and grading activities encompassed about 74,000 square feet, and the Town and the Yacht Club claiming only about 18,000 square feet were altered. Notwithstanding the acknowledged factual dispute whether 18,000 square feet of land or 74,000 square feet of land has been altered on the golf course, the Town and the Yacht Club assert that they are entitled to summary judgment based on their argument that the special permit requirements of Section 611 of the Bylaw do not apply to the activities complained of, as they constitute maintenance of the golf course that is not covered by the Bylaw, which only purports to regulate activities associated with land development.

For the reasons stated below, the defendants' motion for summary judgment is ALLOWED.


Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boazova v. Safety Ins. Co., 462 Mass. 346 (2012); Mass. R. Civ. P. 56(c). The party moving for summary judgment bears the burden of proving that there are no material issues of fact and that there is a right to judgment as a matter of law. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 (1997); Foley v. Matulewicz, 17 Mass. App. 1004 (1984). The facts should be viewed in the light most favorable to the party facing summary judgment in determining whether any disputes of fact exist. Catlin v. Board of Registration of Architects, 414 Mass. 1 (1992). The substantive law at issue in the case determines whether a fact is material. Carey v. New England Organ Bank, 446 Mass. 270 (2006). Material facts bear on the outcome of the case. Jupin v. Kass, 447 Mass. 41 (2006). Bare assertions and conclusions regarding a party's understandings, beliefs and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 (1989), review denied, 406 Mass. 1101 . Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 648 (2002). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass R. Civ. P. 56(c).

Section 611 of the Bylaw regulates "clearing and grading activities associated with land development...." Section 611.1.1. With exemptions not relevant here, Section 611.3, in implementing the purpose just described, provides that, "No person shall undertake clearing or grading activities of an area greater than 30,000 square feet" without obtaining a special permit from the Planning Board.

"Clearing" is defined as:

Removal or causing to be removed, through either direct or indirect actions, trees, shrubs, sand and gravel and/or topsoil from a site, or any material change in the use or appearance of the land. Actions considered to be clearing include, but are not limited to: causing irreversible damage to roots or trunks; destroying the structural integrity of vegetation; and/or any filling, excavating, grading, or trenching in the root area of a tree which has the potential to cause irreversible damage.

"Grading" is defined as:

Any excavating, filling, clearing, or the creation of impervious surface, or any combination thereof, which alters the existing surface of the land.

Bylaw, Section 611.2.

The Town and the Yacht Club argue that they are entitled to summary judgment because, as the building inspector ruled, the activities complained of, while they may constitute "clearing" or "grading" as narrowly defined in the Bylaw, they are also unquestionably not clearing or grading in furtherance of "land development," an undefined term in the Bylaw, and therefore are not covered by the special permit requirement, regardless of the square footage involved. They point out the undisputed fact that the golf course on which the challenged activities occurred has long been in existence and that the activities complained of, including sodding of tee boxes, maintenance of sand traps and bunkers, periodic alterations to course layouts, removal of damaged trees, maintenance of cart paths and greens, and maintenance of irrigation and grass and turf is a regular part of the maintenance of activities of the golf course. [Note 4] They further argue that the building inspector's and the Board's determinations in this regard are entitled to deference.

The plaintiff argues that the activities complained of come within the narrow definition of the Bylaw for clearing and grading activities, and that a trial is required on the disputed fact of the extent of square footage of such activities.

The court is ultimately left with the task of providing the legal interpretation of local legislation. The interpretation of bylaws is a question of law for the court, not a question of fact, to be determined by ordinary principles of statutory construction. Framingham Clinic Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Bldg. Comm'r of Franklin v. Dispatch Communications of New England, 48 Mass. App. Ct. 709 , 713 (2000). The court interprets municipal bylaws and ordinances according to ordinary principles of statutory construction. Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012). The court first looks to the statutory language as the principal source of insight into legislative intent. Id. When the meaning of the language is plain and unambiguous, the court enforces the statute according to its plain wording unless a literal construction would yield an absurd or unworkable result. Commonwealth v. DeBella, 442 Mass, 683, 687 (2004) (stating that the court will not resort to extrinsic aids in interpreting the statute when the ordinary meaning of words yield a "workable and logical result").

Absent express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law and is to be determined by ordinary principles of statutory construction. Shirley Wayside Ltd. P'Ship v. Bd. of Appeals of Shirley, supra, 461 Mass. at 477. The terms used in a zoning bylaw are to be read in the context of the bylaw as a whole and to the extent consistent with common sense and practicality, they should be given their ordinary meaning. Kurz v. Bd. of Appeals of North Reading, 341 Mass. 110 , 112-113 (1960); Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990). The words' usual and accepted meanings are derived from sources presumably known to the bylaw's enactors, such as their use in other legal contexts and dictionary definitions. See Commonwealth v. Zone Brook, Inc., 372 Mass. 366 , 369 (1977).

Where ambiguities exist in the language of the bylaw, however, the court owes deference to a local board's reasonable construction of its own bylaw. Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 456 (2006); Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, supra, at 475. Ambiguities exist when "multiple interpretations lie within the band of a reasonable reading, as to the meanings of terms included in, and the intentions lying behind, the ordinance's words." Livoli v, Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997). Deference is owed to a local zoning board's interpretation of an otherwise ambiguous provision, because the local board is deemed to have special knowledge about the history and purpose of its zoning bylaw. Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 545 (2014). See also Koines v. Zoning Bd. of Appeals of Cohasset, 91 Mass. App. Ct. 903 , 904 (2017). "If the board's interpretation of its by-law is reasonable, the court may not substitute its judgment." Coco Bella LLC v. Town of Hopkinton, 92 Mass. 1102 (2017) (Rule 1:28 Unpublished Opinion), citing Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004).

A zoning board of appeals is entitled to all rational presumptions in favor of its interpretation of its own by-law, provided there is a rational relation between its decision and the purpose of the regulations it is charged with enforcing. See Livoli v. Zoning Bd. of Appeals of Southborough, supra, 42 Mass. App. Ct. at 923; Bldg. Comm'r of Franklin v. Dispatch Communications of New England, supra, 48 Mass. App. Ct. at 715-718; Advanced Dev. Concepts, Inc. v. Town of Blackstone, 33 Mass. App. Ct. 228 , 231 (1992); Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 28-29 (2002).

Here, there is ambiguity in the Bylaw as a result of tension between the statement of purpose at the beginning of the Bylaw, which purports to cover only activities associated with "land development," and the implementing language of the bylaw, which does not explicitly exclude clearing and grading associated with activities other than land development. But the purpose of the Bylaw is not left to our imaginations: it is plainly stated as being for the purpose of regulating activities associated with land development. The building inspector based his decision on his conclusion that the reworking of some characteristics of one of the holes on an existing golf course, constituted "maintenance" and not "land development" and was therefore not subject to the special permit requirement. The Board upheld this decision, and argues in this action that the building inspector's interpretation of the Bylaw was correct.

This interpretation of the bylaw, while not the only one possible, is certainly rational, and is not unreasonable. The evil to be addressed by the Bylaw, as stated in Section 611.1, unregulated clearing and regrading of land in connection with land development activities, can reasonably be said not to be implicated by the ordinary and usual activities of re-sodding, and reworking and moving features such as tee boxes on an existing golf course. The Board's interpretation of its Bylaw is a rational and reasonable one, in that the Board could reasonably conclude that it need not involve the Town in activities that can be fairly characterized as ordinary maintenance of a golf course.

While there remain disputed facts with respect to whether the plaintiff is an aggrieved person, and with respect to whether the activities on the golf course breach the 30,000 square foot threshold for application of the Bylaw, these disputed facts are not material to the court's decision because, assuming these facts to be resolved in favor of the plaintiff, the defendants are entitled to judgment as a matter of law. The Board is entitled to deference to its reasonable interpretation of the Bylaw, pursuant to which the activities complained of are not subject to the requirement for a special permit under Section 611, regardless of square footage.


The defendants' motion for summary judgment is ALLOWED. Judgment will enter accordingly.


[Note 1] Statement of Material Facts, ¶ 6.

[Note 2] Appendix, Tab 7.

[Note 3] Appendix, Tab 9.

[Note 4] Appendix, Tab 4, Affidavit of Christopher S. Allen; Statement of Material Fact, ¶ 5.