ISLAND PROPERTIES, INC., trustee, vs. MARTHA'S VINEYARD COMMISSION.

KAPLAN, J. The plaintiff's predecessors, holding title to land located within the boundaries of the town of Oak

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Bluffs on the island of Martha's Vineyard, obtained approval from the local planning board for definitive subdivision plans which were consistent with the town's zoning by-law. Shortly thereafter the Legislature passed and the Governor approved St. 1974, c. 637, "An Act protecting land and water on Martha's Vineyard." The question posed by this case is whether various regulatory controls adopted pursuant to the statute by the defendant Martha's Vineyard Commission, some of them more restrictive than the town by-law, should be held to apply to the locus, or whether -- to the contrary -- the locus is shielded from those controls by the familiar provision of G. L. c. 40A, Section 7A (quoted at n.18 below), [Note 1] which, when applicable, has the effect of "freezing" the local zoning ordinances or by-laws in favor of the developer for seven years from the date of his submission of the preliminary subdivision plan. We hold that Section 7A does not govern in the situation presented by this case, and that the controls under chapter 637 apply here as they do to other developments proposed for areas on Martha's Vineyard within the authority of the commission. This is essentially because Section 7A deals with amendments by local authorities of the local zoning provisions, and is not directed to standards and regulations, authorized by the State legislation, having regional or Statewide scope or significance affecting such local provisions.

1. This action for a declaration of rights was commenced in the Supreme Judicial Court for the county of Suffolk and was reserved and reported to the full bench, without decision, by a single justice of this court upon the pleadings and a statement of agreed facts with voluminous exhibits. It appears from the record that the locus, comprising the undeveloped parcels called Waterview III, IV, and V, borders on and is in the vicinity of Sengekontacket Pond, a major tidal pond. The relevant preliminary subdivision plans were submitted on October 25, 1973, with

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the formalities required by the Subdivision Control Law, G. L. c. 41, Sections 81K-81GG (the law having been "accepted" by Oak Bluffs), and definitive plans followed on April 12, 1974, and were approved by the town planning board on June 7, 1974. The plan contemplated some 850 building lots on 507 acres. The town by-law as of October 25, 1973, prescribed, among other things, a minimum lot size of 10,000 square feet; setback of twenty-five feet from street line (with certain provisos) and of twenty feet from side lot and rear property lines; and height limitations of thirty-two feet and two and one-half stories. (These provisions applied alike to the single residence and general residence districts.)

The impingement of chapter 637 on the plaintiff's proposed development and the occasion for seeking a declaration become apparent from the terms of the statute and the steps taken thereunder, to which we turn. [Note 2]

2. Chapter 637 has novel, interlocking provisions which call for some exposition. Cf. American Law Institute, A Model Land Development Code, art. 7 (1976). The law was introduced in substance as 1974 House Doc. No. 5567 under Governor Sargent's sponsorship in March, 1974, was enacted with changes, and was approved on July 27, 1974. [Note 3]

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It followed a proposal with similar objectives and the same sponsorship that had been introduced in August, 1973 (1973 House Doc. No. 7280). [Note 4] The legislation was intended to respond (as the General Court could believe) to the threat of destruction of the ecological and other special values of the island through steeply increasing commercial developments of its land and water resources which would not be adequately contained or regulated merely by action that could or would be initiated by the individual towns.

Enacted as an emergency law effective immediately, chapter 637 [Note 5] declared that to prevent irreversible damage to the island and ultimately to its economy it was necessary to establish a regional commission with the purposes and powers set forth in the act. Section 1. Martha's Vineyard Commission [Note 6] consists of twenty-one members: one selectman or designee of the selectmen of each of the six towns comprising the island; nine persons elected at large, island-wide; four, not principally resident on the island, appointed by the Governor (who have voice but not vote); one county commissioner; and one member of the Governor's cabinet or designee [Note 7] appointed by the Governor. Section 2. [Note 8] For twelve months following the organization of the commission,

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or until forty-five days after approval by the Secretary of Communities and Development of standards and criteria (described below), whichever period was shorter, a moratorium was imposed on the granting by town authorities of permits for developments on any considerable scale (a development permit being defined as any permission required to construct or alter a building or improve land). Sections 7, 6 (fourth paragraph). (In fact, the commission was organized on December 5, 1974; approval of the standards and criteria occurred on September 8, 1975, terminating the moratorium on October 23, 1975.)

Within a year of the enactment the commission was to formulate and submit to the Secretary for his approval two sets of standards and criteria: one for use by the commission in determining whether a proposed district of the island was of "critical planning concern" (CPC), and a second for use by the commission and town authorities in deciding whether a proposed development was a "development . . . of [i.e. having] regional impact" (DRI). Section 8.

The commission was empowered, after notice to the towns involved and notice and public hearing pursuant to G. L. c. 30A, Section 2 (State Administrative Procedure Act), to designate CPC districts in accordance with the relevant approved standards and criteria. Such a district must qualify in any case as possessing unique resources (natural, historical, ecological, scientific, or cultural) of regional or Statewide significance; or as having marginal soil or topographic conditions rendering it unsuitable for intense development; or as being significantly affected by, or having significant impact on, an existing or proposed major public facility (as defined) [Note 9] or other area of major public investment. A procedure is described for the nomination

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of CPC districts. [Note 10] The commission is required to explain its actions with regard to nominations. If it decides to designate a CPC district, it must accompany the designation with a specification of guidelines for the development of the district, based on considerations such as possible water, air, land or noise pollution, burdening of water supply, beach erosion or damage to the littoral ecology or wetlands. Section 9.

Upon designation of a CPC district, each town whose boundaries include any part of the district may, subject to approval or amendment by the commission, adopt regulations conforming to the applicable guidelines, having for the purpose all the powers it otherwise had under the General Laws; if a town fails to propose regulations, the commission on notice and hearing formulates them for the town. Section 11. These regulations (and regulations specifying conditions for DRI's: see below) may include any type of regulation which may be adopted by any city or town under the General Laws as noted in the margin; [Note 11] they may differ from the otherwise relevant local development ordinances and by-laws in their scope and magnitude when the latter are clearly restrictive of the commission's purposes. [Note 12] Section 3. Whether or not the regulations for a CPC

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district were proposed by a town, they are incorporated into the town's ordinances and by-laws (without regard to G. L. c. 40, Section 32, as to validation of by-laws by the Attorney General) and are in the first instance to be administered by the town as if they were part of its development ordinances and by-laws. Section 11; cf. Section 10.

As noted, the commission also submits standards and criteria for the Secretary's approval specifying the types of DRI's -- that is, developments which, because of their magnitude or the magnitude of their effect on the surrounding environment, are likely to present development issues significant to more than one town. Section 13 (listing considerations). When a permit for a development is sought from town authorities, they determine initially whether it is a DRI, and, if so, refer the application for the permit to the commission. Section 14. The commission then, on notice and hearing, decides whether to allow the town to issue the permit; it is to consider probable benefits and detriments, the relation of the development to the objectives of the general plan of the town or of the island, the consistency of the development with the town's by-laws or with the regulations of any relevant CPC district, and, in case of inconsistency with by-laws, whether an inconsistency is justified. Section 15 (as amended by St. 1976, c. 219, Section 2). The commission's consideration is not limited to the situation of the town that referred the development proposal, but extends to the impact on areas within other towns, as well as to examination of available alternative locations on the island. Section 16. In approving a DRI the commission may specify conditions to be met by the developer. Section 17.

3. The commission took action under chapter 637 as follows. It duly prescribed standards and criteria for designation

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of CPC districts and for DRI's which were approved by the Secretary on September 8, 1975. For immediate purposes we need to acquaint ourselves with the former, called "Critical Planning District Qualifications." These provide that a CPC district may be designated only when there is a regional need for special regulations or planning to protect the given area, and when damage through failure to regulate or plan will involve substantial loss to the region or to two or more towns. Then follow specific characteristics that point to CPC designations; these are arranged under the headings of drinking water resource, fishing resource, farming resource, wildlife, natural, scientific, or ecological resource, cultural or historic resource, economic or development resource, major public investment, and "hazardous."

On December 22, 1975, after compliance with statutory requirements of form as well as substance, the commission designated two CPC districts of interest to us because each district embraces some part of the locus (although the record does not vouchsafe with precision just how much in either case).

There is first an "Island Road District." This takes in a zone adjacent to or associated with the major roads of the entire island, and a second zone related to special ways. There are guidelines applicable equally to both zones, and separate guidelines for each: guidelines for the major road zone describe the allowed height of structures [Note 13] and the rather broad uses allowed with or without permit; for the special ways zone, guidelines describe development patterns and the uses allowed with or without permit or prohibited. [Note 14]

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The second CPC district designated by the commission is a "Coastal District" which embraces essentially all the coastline of the island, and areas of the major coastal ponds, harbors, and tributary streams and wetlands feeding the coastal ponds (with definitions and exclusions). Guidelines for a shore zone admit of only quite restricted uses. [Note 15] For an inland zone, guidelines allow single family residences but with restrictions aimed particularly at water supply and sanitary disposal facilities and with limitations on the height of structures. [Note 16] There are also guidelines for similar uses in areas associated with streams and wetlands draining into the coastal great ponds.

On March 4, 1976 (with clarification on March 18), the commission designated a third CPC district, the "Oak Bluffs Sengekontacket Pond District." [Note 17] This comprises

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the lands and waters within Oak Bluffs adjacent to the pond, exempting (except as to the water monitoring guideline mentioned below) the developments called "Sengekontacket Properties" and "Waterview Farms I and II" where construction was already substantially completed. The locus in the present case lies within the district boundaries and amounts to eighty-seven per cent of its unexempted area. A density guideline limits development permits so as to achieve an average for the district not exceeding one dwelling unit per 60,000 square feet of area, and a further guideline imposes a growth control for new building permits and associated sanitary disposal facility installation and water supply connection permits at an annual rate not exceeding one-twentieth of the permits issuable under the density guideline. (The growth rate is to be reviewed every three years.) A detailed ground water monitoring program is established.

It remains to say that the commission pursuant to Section 11 has lately adopted overlay or supplementary regulations for the town of Oak Bluffs (the town apparently having offered no proposed regulations) pursuant to the guidelines promulgated by the commission under its designations of the three pertinent CPC districts.

4. (a) The plaintiff's case is founded on G. L. c. 40A, Section 7A, reproduced in the margin; [Note 18] otherwise the plaintiff

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offers no challenge in this proceeding to the validity of chapter 637 or to the validity or regularity of any of the actions of the commission under that law as they bear upon the plaintiff or other landowners who may be in like position. [Note 19] We may note here that while the record indicates that the plaintiff entered into financing arrangements and expended money after the approval of the definitive subdivision plans, the extent or reasonableness of any reliance involved is not shown, nor is it indicated in any detail how the plaintiff may fare in developing the locus under the regulatory controls which have been imposed pursuant to chapter 637. [Note 20] (As to the plaintiff's legal situation apart from its Section 7A contention, see 1 R.M. Anderson,

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American Law of Zoning Section 4.27 [2d ed. 1976], and, e.g., R.A. Vachon & Son v. Concord, 112 N.H. 107 [1972].)

(b) We go, then, to Section 7A, in particular to its first paragraph applying to subdivision plans requiring approval of a planning board under G. L. c. 41, Section 81S. [Note 21] The plaintiff argues in effect that the words "the land . . . shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of submission of the plan" exclude subsequent zoning laws (not merely zoning ordinances or by-laws), and that chapter 637 is a zoning law, although it is not so called.

In the first place, such a characterization is dubious. Assuming even that the General Laws referred to in Section 3 of chapter 637 (see n.11 above), or rather their "types," represent the bounds of the commission's substantive powers, we observe that the references to the General Laws are not exclusively to zoning laws, nor, we believe, are the commission's standards and regulations to be thus exclusively characterized. [Note 22] Alternatively, the plaintiff seems to retreat to the position that in so far as chapter 637 in Section 3 refers to General Laws which can be denominated as "zoning" laws --thus as to laws which relate to height of structures and the like -- chapter 637 should count as a zoning law and the commission's standards and regulations should to that extent be nullified in the present case by the freeze provision of Section 7A, while any balance of the chapter 637 powers and of the commission's standards and regulations may remain applicable. But that would create a spotty situation indeed. In this view we may leave to another time the question of the correctness of the assumption made arguendo above that the commission's authority comprehends only the General Laws enumerated

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in Section 3, or their types, and does not draw more generally on the State's police powers.

But the entire contention falls because Section 7A is not directed to subsequent zoning laws in a general sense, but only to zoning ordinances or by-laws subsequently passed by municipalities in the accustomed and ordinary way. [Note 23] This, we believe, is the natural reading of the text of Section 7A. The expression "zoning ordinance or by-law" is repeated several times; and that the subsequent enactment, which is not to "govern," must be of the same local character, is illustrated by the last sentence of the first paragraph of Section 7A, which, speaking of a case where an appeal is being taken from disapproval of a subdivision plan, states: "Such appeal shall stay, pending an order or decree of a court of final jurisdiction, the applicability to land shown on said plan of the provisions of any zoning ordinance or by-law which became effective after the date of submission of the plan first submitted." We add that a reading of the successive versions of Section 7A since 1957 (including the titles of the statutes) confirms us in this interpretation. [Note 24]

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Chapter 637 is a polar opposite from those subsequent local enactments contemplated by Section 7A. Not only is chapter 637 a statute of the General Court; the reason of its being is to import regional -- island-wide and Statewide -- considerations into the protection of the land and water of Martha's Vineyard, considerations which, the Legislature could believe, the towns themselves had not and would not severally bring to bear. [Note 25] Our discussion of chapter 637 at points 2 and 3 above highlights its regional objectives and the techniques employed to further their attainment. The regional theme runs through the whole chapter from the makeup of the commission through the ultimate standards and regulations. It might be thought a perverse anomaly if these regional purposes could be thwarted, as to undeveloped resources requiring CPC or DRI status, by freezing and preserving for seven years preexisting local by-laws with narrow orientation. [Note 26]

As to decisions dealing with Section 7A, we noted in Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385, 388 (1975), that they have involved "what were unquestionably amendments to zoning by-laws"; examples were the Bellows Farms case, supra note 21, Smith v. Board of Appeals of Needham, 339 Mass. 399 (1959), McCarthy v. Board of Appeals of Ashland, 354 Mass. 660 (1968), Vazza v. Board of Appeals of Brockton, 359 Mass. 256 (1971), and Nyquist v. Board of Appeals of Acton,

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359 Mass. 462 (1971). The Rayco case itself is instructive because of the care shown in dealing with Section 7A (second paragraph). There the subsequent town by-law in question stated in effect that the maximum number of outstanding mobile home park licenses issued by the board of health under G. L. c. 140 should not exceed at any time the number of such licenses issued by the board as of a past date, October 1, 1971. It was argued that the by-law was "grounded in the town's police power apart from the zoning power" (id. at 392), so that Section 7A should not apply. But this court, observing (among other things) that the town had dealt with the subject of trailer parks in its previous zoning by-law, and that "[t]he board of health took no independent action in this case but rather has deferred to the town's decision" (id. at 391 n.3), decided to treat the subsequent by-law as a zoning by-law within Section 7A. This court's circumspect approach to Section 7A is notable; and we are reminded of the problem (which we have left undecided) about the reach of chapter 637 into the police powers beyond zoning.

(c) The effect of the foregoing discussion is that Section 7A is not germane. But if Section 7A were thought to apply by its terms, then the question would arise -- it is argued in the briefs -- whether, as a general enactment, Section 7A should not be held to be inconsistent with the later, and specialized, chapter 637, and thus "repealed" pro tanto by that chapter to the extent of the action properly taken under it. Cf. Doherty v. Commissioner of Administration, 349 Mass. 687, 690-691 (1965). We leave unexplored the argument for such supersession, but do not minimize its apparent force, considering the emergency nature and comprehensiveness of chapter 637 and the cogency of a legislative purpose to take into the statutory scheme all undeveloped land and water which plausibly required treatment as CPC districts or DRI's. Within wide limits the General Court had power, if it chose, to legislate to supersede Section 7A in this way, as it also had power to authorize the commission by chapter 637 to step in to establish regional standards

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for development and to require the towns to cooperate in their enforcement. [Note 27]

5. Attempting to strengthen its argument under Section 7A, the plaintiff calls attention to the second paragraph of Section 7 of chapter 637 (as amended to make "corrective changes" by St. 1974, c. 759), set out in the margin. [Note 28] The language can be confusing unless read carefully with the full text of the chapter. A town planning board on the island is allowed to proceed with approval of a definitive subdivision plan under G. L. c. 41 submitted to the board before the effective date of chapter 637, and with consideration for approval after that date of any preliminary or definitive subdivision plan under c. 41 (but withholding approval during the temporary moratorium). The plaintiff suggests that if a planning board may now approve a definitive subdivision plan submitted before the chapter's effective date, then a definitive subdivision plan approved prior to that date (although such a case is not explicitly covered) must be a fortiori valid and impregnable. But the meaning is quite different. What is meant is that there may be approval or consideration for approval as far as c. 41 is concerned. Where the area involved does not fall within a CPC district and the plan discloses no DRI, chapter 637 will presumably interpose no final barrier, but

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in the other kind of case approval of the plan, while satisfying c. 41, does not obviate the need for compliance with regulations and procedures under chapter 637. [Note 29]

In conclusion, we decide in substance that the plaintiff is not, by reason only of G. L. c. 40A, Section 7A, free of the regulatory controls of chapter 637.

We need hardly add that we are not entitled to express any opinion as to whether chapter 637 is good or bad legislation, or whether the commission has or has not done a useful job. Our function is limited to the issues of law presented by the record.

The case will be remanded to the single justice for the entry of a declaratory judgment in accordance with this opinion. [Note 30]

So ordered.