402 Mass. 137 | Mass. | 1988
Lead Opinion
The plaintiff, Madaket Realty, Inc. (Madaket), owns two lots of land located in the town of Nantucket. It applied to the town for building permits to construct a single-family residence on each of these lots. The town, by its zoning by-law, Nantucket Code § 139-27 (1986); has limited the number of building permits available per year, and allocates them on a weekly basis. The town building inspector maintains a permit “cap line,” which is a list of applications for building permits, maintained in the order in which the applications were
Madaket appealed the board’s decision to the Land Court, pursuant to G. L. c. 40A, § 17, and c. 185, § 1 (jVz) (1986 ed.). The Land Court judge ruled that the town zoning by-law relating to time-sharing was inapplicable to Madaket’s proposed use of its lots for construction of time-shared single-family residences, and, alternatively, that the zoning by-law at issue, if applicable, was invalid in that it was arbitrary and unreasonable, and because it constituted a regulation of a civil relationship not incident to a lawful exercise of zoning power, in violation of art. 2, § 7 (5), of the Home Rule Amendment, as appearing in art. 89 of the Articles of Amendment to the Massachusetts Constitution. We granted the defendants’ application for direct appellate review, and now affirm. Because we conclude that the by-law at issue does not apply to Madaket’s lots, we do not reach the constitutional issue.
Madaket’s lots are located in a zoning district which forbids “transient residential facilities,” including, inter alla, “time-sharing or time-interval-ownership dwelling units.”
The by-law’s proscription of time-sharing applies only to a “dwelling unit,” and not to a “dwelling.” See note 2, supra. The key to this case, then, lies in the distinction between these terms as they are used in the by-laws. The by-laws define a “dwelling” as, “A structure used or intended to be used by one (1) family or household for living, sleeping, cooking or eating,”
Usage throughout the by-laws is consistent with our interpretation of the term “dwelling” as referring to the physical structurc of a residential building, and of the term, “dwelling unit” as referring to the subdivision of such a building into habitable subparts. For example, § 139-7 (A) (2), permits construction of
Similarly, § 139-8 (A) permits use of “(3) A dwelling containing two (2) dwelling units . . . provided that any lot on which the dwelling units are located shall not contain any additional dwellings or dwelling units . . . [and that] ... (4) [d]welling units shall be under the same ownership as the principal dwelling.” Again, these subsections distinguish a “dwelling” from a “dwelling unit,” and support the view that the former term refers to a residential building, and the latter to a subdivision thereof.
The defendants contend that the by-law’s proscription of time-sharing applies to both single-family and multiple-family residences. They argue that a single-family residence is simply a “dwelling” consisting of only one “dwelling unit.” We think that such an interpretation is inconsistent with the sense in which these terms are used throughout the by-laws. As discussed, the by-laws appear to distinguish between these terms, and to use the term “dwelling unit” exclusively to refer to an individual subdivision of a multiple-unit residential building. The evident function of the term is as a device for counting the number of separate households occupying a residential building, i.e., as a measure of intensity of use. Where a section is intended to apply to both single-family and multiple-family residences, the by-laws expressly accomplish this by using both
We therefore conclude, as did the judge below, that the by-law’s proscription of time-sharing does not apply to the single-family residences that Madaket proposes to build.
Judgment affirmed.
“Time-Sharing or Time-Interval-Ownership Dwelling Unit — A dwelling unit in which the exclusive right of use, possession or ownership circulates among various owners or lessees thereof in accordance with a fixed or floating time schedule on a periodically recurring basis, whether such use, possession or occupancy is subject to either: a time-share estate, in which the ownership or leasehold estate in property is devoted to a time-share fee (tenants in common, time-span ownership, interval ownership) and a time-share lease; or time-share use, including any contractual right of exclusive
Although the definition of the term “dwelling” appears to comprise only single-family residential buildings, we do not think that the town meeting intended this result. Examination of other sections of the by-laws makes clear that such a literal construction would be unwarranted. For example, § 139-2, in defining “customary home occupations,” and § 139-7 (A) (1) and (2) (a), refer to a “single-family dwelling.” Obviously, a distinction is being made between such uses and multiple-family dwellings. The qualify - ing language would be superfluous if by definition the term “dwelling” encompassed only single-family residences. In addition, § 139-8(A) refers to a “dwelling containing two (2) dwelling units,” and § 139-18 (I) requires that “multi-family uses,” in districts where such are permitted, have one parking space “for each 1.2 dwelling units.”
Dissenting Opinion
(dissenting). The language of the zoning bylaw itself, as well as its legislative history and good sense, ■separately and in combination requires the conclusion that single-family homes subject to time-sharing or time-interval ownership in Nantucket are transient residential facilities, and therefore are not permitted in the zoning district in which the plaintiff’s lots lie.
It is unquestioned that the lots lie in a district from which the by-law excludes transient residential facilities. The question is whether the term “transient residential facilities” includes single-family homes subject to time-sharing, as well as multiunit buildings. Section 139-2 of the by-law defines transient residential facilities as “[hjotels, motels, lodging or guest houses and time-sharing or time-interval-ownership dwelling units.” The court concludes that a single-family home does not fit within that definition; more specifically, that a single-family home, whether or not subject to time-sharing, cannot contain a “dwelling unit.” The court concludes, as did the trial judge, that the term “dwelling unit” necessarily refers to a separate unit within a multi-family residence; a “subdivision” of a structure divided into “habitable subparts.” Ante at 139. But,
It cannot fairly be said that the Nantucket by-law unambiguously provides that single-family homes subject to time- sharing or time-interval ownership are permissible in zoning districts in which dwelling units in multi-unit buildings subject to time-sharing or time-interval ownership are prohibited. Thus, such a construction may be achieved, if at all, only by the use of interpretive aids traditionally invoked to resolve ambiguities. See Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Taxation, 363 Mass. 685, 690-691 & n.8 (1973); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 478 (1986). However, those aids point the other way. One such aid is judicial recognition that “[a] local board of appeals brings to the matter an intimate understanding of the immediate circumstances, of local conditions, and of the background and purposes of the entire by-law; and so, at least in the first instance, the board’s administrative view is valuable and is wanted.” Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53, 57 (1985). Here, the Nantucket board of appeals concluded that single-family homes subject to time-sharing or time-interval ownership are not permitted in the zon
Another aid to construction, related to that just discussed, is the legislative history of the by-law. Owens v. Board of Appeals of Belmont, 11 Mass. App. Ct. 994, 995 (1981). Like the view of the board of appeals, the relevant legislative history does not support the court’s result, but, instead, clearly cuts the other way. The provisions of the by-law regarding time-sharing were adopted at Nantucket’s annual town meeting held on April 7, 1982, pursuant to Article 14 on the town meeting warrant. Prior to adoption of that article, the Nantucket Planning and Economic Development Commission submitted a report to the town. A relevant paragraph taken from that report states as follows: “An important point to remember is that time-sharing does not have to be employed along with condominium ownership or be installed in multi-family structures, although clearly multi-family condos continue to be the principal ownership and structure types chosen for time-sharing thus far on the mainland. This distinction is particularly important
Not only does the legislative history contain the report just referred to, but also the town planning board submitted the following recommendation for the guidance of those voting at the town meeting: “The Planning Board RECOMMENDS FAVORABLE ACTION on Article 14 as written. The Board finds that time sharing or interval ownership constitutes a use of property which is clearly different in intensity, type, and degree from that normally associated with single family home use. The location of time sharing or interval ownership uses in heretofore stable, quiet residential neighborhoods is contrary to the general intent and purpose of the zoning by-law. The use of a structure for time sharing is very similar to the intensity, type and degree of use normally associated with such transient residential facilities as hotels, motels, and guest houses. For that reason, the Board feels that time sharing or interval ownership use should be permitted in districts which now allow transient residential facilities — Residential Commercial and Limited Commercial.” It is abundantly clear that the town intended by its by-law as amended to prohibit single-family homes subject to time-sharing or time-interval ownership in the district in which the plaintiff’s lots are located.
In view of its interpretation of the by-law, it was unnecessary for the court to reach the constitutional issues addressed by the trial judge and argued on appeal by the parties. In view of the by-law construction for which I argue, it is necessary that I focus on the constitutional questions at least briefly. The by-law as I would construe it does not violate art. 2, § 7 (5), of the Home Rule Amendment, as appearing in art. 89 of the Amendments to the Massachusetts Constitution as a regulation of civil relationships not incidental to a lawful exercise of zoning
The plaintiff’s due process challenge to the by-law is without merit. The test is “whether the challenged measure bears a rational relation to any permissible public object which the legislative body ‘may plausibly be said to have been pursuing.’” Sturges v. Chilmark, 380 Mass. 246, 256 (1980), quoting Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 372 (1979). As the town argues, control of the nature and intensity of use of residential areas, and the encouragement of use and ownership by persons with a significant stake in the community clearly are public objects which the town meeting “may plausibly be said to have been pursuing” in adopting the time-sharing provisions of the by-law. I would reverse the judgment below.