Roma, III, Ltd. v. Bd. of Appeals of Rockport
| Decision Date | 08 January 2018 |
| Docket Number | SJC–12278 |
| Citation | 88 N.E.3d 269,478 Mass. 580 |
| Parties | ROMA, III, LTD. v. BOARD OF APPEALS OF ROCKPORT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jackie Cowin, Boston, for the defendant.
Nicholas Preston Shapiro (Robert K. Hopkins also present), Boston, for the plaintiff.
Maura Healy, Attorney General, & Elizabeth N. Dewar, State Solicitor, for division of aeronautics of the Department of Transportation, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.
A judge of the Land Court barred the town of Rockport (town) from enforcing a zoning bylaw that prohibited the use of land for a private heliport without some form of approval, variance, or special permit because the bylaw had not been approved by the division of aeronautics of the Department of Transportation (division). The issue on appeal is whether cities and towns may exercise their zoning authority to determine whether land in their communities may be used as a noncommercial private restricted landing area, here a heliport, or whether they may do so only with the approval of the division because the exercise of such zoning authority is preempted by the State's aeronautics statutes, G. L. c. 90, §§ 35 – 52 (aeronautics code). We hold that there is no clear legislative intent to preempt local zoning enactments with respect to noncommercial private restricted landing areas, and that a city or town does not need the prior approval of the division to enforce a zoning bylaw that requires some form of approval, variance, or special permit for land to be used as a private heliport.1
Background. Roma, III, Ltd. (plaintiff), is the owner of 1.62 acres of oceanfront property in Rockport (property). The property, improved by a single-family residence, is located in what is classified as a residential A zoning district.
Ron Roma (Roma) is licensed as a helicopter pilot and regularly uses the helicopter he owns to travel to his various family homes, business engagements, and other activities. Roma does not operate his helicopter for any commercial purpose. In September, 2013, following Roma's request for a determination of airspace suitability for a private helicopter landing area on the property, the Federal Aviation Administration recognized the property as a licensed private use heliport. Roma also received approval following an airspace review from the division. The heliport on the property is a flat section of lawn near the ocean with a windsock installed to indicate the direction of the wind. Roma stores his helicopter in a hangar located at the Beverly Airport.
On November 14, 2014, Roma flew his helicopter to the property. Later that month, the town building inspector issued an enforcement order stating that "a heliport is not allowed, either as a principal use of the property or an accessory use, in any zoning district in the [t]own," and that the use of the property for the landing of a helicopter is in violation of the town's bylaw. The town building inspector ordered "that the landing of helicopters on the property be stopped immediately" and that the "[f]ailure to comply with this order may result in fines of up to $300 per day."
The plaintiff filed an appeal from the enforcement order to the board of appeals of Rockport (board). After a public hearing, the board voted unanimously to deny the appeal. It later issued a written decision noting that, under § I.B of the town zoning bylaw, uses that are not expressly permitted are deemed prohibited. That section states that "[n]o parcel of land in any district shall be used for any purpose other than those authorized for the district in which it is located." The board found that, because neither the table of permitted uses in § III.B of the bylaw nor any other section of the bylaw authorizes the use of land for a heliport, the private heliport on the plaintiff's land was not permitted. Nor, the board concluded, is the heliport allowed as a "customarily incidental" accessory use or as an accessory use normally associated with a one-family detached dwelling that is not detrimental to a residential neighborhood. Consequently, the heliport would require "some form of approval, variance and/or special permit" after a separate hearing. The board found that "[h]elicopter landings in a dense [,] village-style neighborhood are neither a minor nor an insignificant event" and that "[t]he vibration and noise resounding in this neighborhood[,] even when an over-ocean approach path would be utilized would, in the judgment of this [b]oard, be detrimental."
The plaintiff filed a timely complaint appealing from the board's decision to the Land Court, followed by two amended complaints, and the parties thereafter cross-moved for summary judgment. The judge concluded that he was "constrained to apply" the Appeals Court's holding in Hanlon v. Sheffield, 89 Mass.App.Ct. 392, 50 N.E.3d 443 (2016), which interpreted G. L. c. 90, § 39B, to indicate that a town may not enforce a zoning bylaw that would prohibit a private landowner from creating a noncommercial private restricted landing area on his or her property, unless the relevant bylaw had been approved by the division.2 Because the town zoning bylaw had not been approved by the division, the judge granted summary judgment to the plaintiff.3 We granted the board's application for direct appellate review.
Discussion. Because the judge concluded that his decision was dictated by the controlling authority in Hanlon, which interpreted § 39B, we begin by discussing that statute. Section 39B, as enacted in 1946, consisted of what currently comprises the first, third, fourth, and sixth paragraphs of the statute, followed shortly thereafter by the insertion of the second paragraph in 1948. In essence, as relevant here, the first through third paragraphs provide that, before a city or town acquires any property to construct, enlarge, or improve "an airport[4 ] or restricted landing area,"5 it must first apply to the division for a certificate of approval of the site. However, the fourth paragraph of § 39B provides:
"This section shall not apply to restricted landing areas designed for non-commercial private use, nor to any airport, restricted landing area or other air navigation facility owned or operated within the commonwealth by the federal government; provided, that each person[6 ] constructing or maintaining a restricted landing area for non-commercial private use shall so inform the [division] in writing; and provided, further, that such person shall construct and maintain said restricted landing area in such manner as shall not endanger the public safety."
As a result of the fourth paragraph, a private landowner who wishes to establish a noncommercial private restricted landing area does not need prior division approval; the landowner simply needs to inform the division in writing of its establishment, and ensure that it is not built or maintained in a manner that would endanger the public safety.
In 1985, § 39B was amended to add a fifth paragraph, which provides:
Under this provision, a city or town may enact rules and regulations governing "the use and operation of aircraft" at an airport or restricted landing area, but these rules and regulations cannot become effective until the division has approved them. On its face, the fifth paragraph applies to all restricted landing areas; unlike the fourth paragraph, it is not limited to noncommercial private restricted landing areas. However, because the fourth paragraph declares that "[ § 39B ] shall not apply to restricted landing areas designed for non-commercial private use," the defendants in Hanlon and the board here contended that the language of the fifth paragraph that requires division approval of all "rules and regulations relative to the use and operation of aircraft on said ... restricted landing area" does not apply to noncommercial private restricted landing areas.
The Appeals Court in Hanlon, 89 Mass.App.Ct. at 396–397, 50 N.E.3d 443, rejected this argument, interpreting § 39B to require prior division approval before any city or town regulation "relative to the use and operation of aircraft" on a noncommercial private restricted landing area becomes effective. The Appeals Court reasoned that the sole source of a town's authority to regulate the use and operation of aircraft derives from the fifth paragraph of § 39B ; consequently, if the fourth paragraph eliminated this authority with respect to noncommercial private restricted landing areas, the town would have no authority to regulate the use and operation of aircraft in these areas. Id. at 395, 50 N.E.3d 443. According to the Appeals Court, its decision declining to interpret the fourth paragraph as removing this authority conserved the authority granted to the town under the fifth paragraph by allowing it to regulate the use and operation of aircraft in noncommercial private restricted landing areas, albeit subjecting that regulation to prior division approval. Id.
The flaw in this reasoning is that, under the zoning bylaw in the town of Sheffield, land may not be used as a noncommercial private restricted landing area without specific zoning board approval in the form of a variance or special permit, which Hanlon had not obtained. The relevant question in Hanlon, therefore, was not whether a city or town may regulate "the use and operation of aircraft" on what was already a noncommercial private restricted landing area....
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Bos. Clear Water Co. v. Zoning Bd. of Appeals of Lynnfield
...cities and towns the power to restrict the use, location, and construction of buildings through their enactment of ordinances or bylaws."[3] Roma, III, Ltd. v. Board Appeals of Rockport, 478 Mass. 580, 585-586 (2018) (Roma). Municipalities maintained that power when the Zoning Enabling Act ......