Opinion
21-P-811
09-27-2022
BOSTON CLEAR WATER COMPANY, LLC v. ZONING BOARD OF APPEALS OF LYNNFIELD & others.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
This is an appeal from an order by a judge of the Land Court allowing summary judgment in favor of the Zoning Board of Appeals of Lynnfield (board). In broad strokes, the plaintiff argues on appeal that summary judgment was erroneously allowed for two reasons. First, the plaintiff contends that the meaning of the phrase "public water supply" in section B.4 of Appendix A of the town's bylaws was controlled, by virtue of the doctrine of preemption, by the definition of "Public Water System" appearing in the then-applicable version of Department of Environmental Protection (DEP) drinking water regulations. See 310 Code Mass. Regs. § 22.02(1) (2016). Second, in the alternative, the plaintiff argues that the board's construction of "public water supply use" was arbitrary and capricious. We affirm, for the same reasons fully and thoroughly explained by the Land Court judge, to which we have little, if anything, to add.
All regulatory citations will be to the 2016 version. In 2020, some DEP regulations were amended.
1. Preemption. The question presented is whether the board's interpretation of the phrase "public water supply" in section B.4 of Appendix A of the bylaws to mean "a water system operated by a public sector entity ... as opposed to [a] commercial spring water operation" is preempted by the definition of "Public Water System" in 310 Code Mass. Regs. § 22.02. We begin our analysis, as did the Land Court judge, with article 89 of the Amendments to the Massachusetts Constitution, commonly known as the Home Rule Amendment. "Massachusetts has the strongest type of home rule, and municipal action is presumed to be valid" (quotation and citations omitted). Connors v. Boston, 430 Mass. 31, 35 (1999).
The Home Rule Amendment provides in pertinent part that "[a]ny city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court." Art. 89, § 6, of the Amendments to the Massachusetts Constitution. See G. L. c. 43B, § 13 (implementing Home Rule Amendment). Because the provisions of the Home Rule Amendment permit a city or town to undertake any action that is not "inconsistent" with State laws or the Constitution, to determine whether a local bylaw is preempted by State law, "the same process of ascertaining legislative intent must be performed as has been performed in the Federal preemption cases and in our own cases involving 'inconsistent' or 'repugnant' local ordinances or by-laws." Bloom v. Worcester, 363 Mass. 136, 155 (1973). "We look 'to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject'" (citation omitted). Connors, 430 Mass. at 35-36, quoting Boston Gas Co. v. Somerville, 420 Mass. 702, 704 (1995) . "[A] sharp conflict between the local and State legislation is required before the local regulation will be held invalid." School Comm. of Boston v. Boston, 383 Mass. 693, 701 (1981), citing Grace v. Brookline, 379 Mass. 43, 53-54 (1979). "That sharp conflict appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law." Grace, supra at 54. "The legislative intent to preclude local action must be clear." Bloom, supra.
Under G. L. c. 111, § 160, the DEP "may make rules and regulations and issue such orders as in its opinion may be necessary to prevent the pollution and to secure the sanitary protection of all such waters used as sources of water supply and to ensure the delivery of a fit and pure water supply to all consumers." Pursuant to this statutory authority, the DEP promulgated comprehensive drinking water regulations, the purpose of which are to "promote the public health and general welfare by preventing the pollution and securing the sanitary protection of all such waters used as sources of water supply and ensuring that public water systems in Massachusetts provide to the users thereof water that is safe, fit and pure to drink." 310 Code Mass. Regs. § 22.01(1) . These regulations establish maximum levels of various microbiological contaminants; inorganic chemicals; elements including sodium, lead, and copper; synthetic organic compounds; and volatile organic compounds that may be present in drinking water, 310 Code Mass. Regs. §§ 22.05-22.06B, 22.07A-22.07B, and prescribe particular monitoring and compliance requirements for entities subject to the regulations, in order to ensure that the above-mentioned compounds are not present in drinking water samples in amounts above allowable levels. See 310 Code Mass. Regs. §§ 22.03, 22.06A.
The DEP regulations address themselves to "public water systems." See, e.g., 310 Code Mass. Regs. § 22.04 (regulating the "Construction, Operation and Maintenance of Public Water Systems"). "Public water system" is defined in the regulations as "a system for the provision to the public of water for human consumption, through pipes or other constructed conveyances, if such system has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days of the year." 310 Code Mass. Regs. § 22.02(1). This definition "includes any collection, treatment, storage, and distribution facilities under control of the operator of such a system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system." I_d. A public water system may be a "community water system" or a "non community water system"; these are defined as:
" (a.) Community Water System means a Public Water System which serves at least 15 service connections used by year round residents or regularly serves at least 25 year round residents.
"(b) Non community Water System means a Public Water System that is not a Community Water System.
"1. Non-transient Non-community Water System or NTNC means a Public Water System that is not a Community Water System and that has at least 15 service connections or regularly serves at least 25 of the same individuals or more approximately four or more
hours per day, four or more days per week, more than six months or 180 days per year, such as a workplace providing water to its employees.
"2. Transient Non-community Water System or TNC means a Public Water System that is not a Community Water System or a Non-transient Non-community Water System but is a Public Water System which has at least 15 service connections or serves water to 25 different persons at least 60 days of the year. Some examples of these types of systems are: restaurants, motels, camp grounds, parks, golf courses, ski areas and community centers."310 Code Mass. Regs. § 22.01(1).
On the other hand, when the Legislature enacted the Zoning Enabling Act in 1954, G. L. c. 40A, §§ 1-22, inserted by St. 1954, c. 368, § 2, it, "among other things, granted cities and towns the power to restrict the use, location, and construction of buildings through their enactment of ordinances or bylaws." Roma, III, Ltd. v. Board of Appeals of Rockport, 478 Mass. 580, 585-586 (2018) (Roma). Municipalities maintained that power when the Zoning Enabling Act was replaced by the Zoning Act in 1975. See G. L. c. 40A, §§ 1-17, inserted by St. 1975, c. 808, § 2A. Under the Zoning Act "'[a] municipality may enact zoning provisions to deal with a variety of matters, including fire safety; density of population and intensity of use; the adequate provision of water, water supply, and sewerage; the conservation of natural resources; and the prevention of pollution of the environment.'" Roma, supra at 586, quoting Sturges v. Chilmark, 380 Mass. 246, 253 (1980). "From the wide scope of the purposes of [t]he Zoning Act, it is apparent that the Legislature intended to permit cities and towns to adopt any and all zoning provisions which are constitutionally permissible, subject, however, to limitations expressly stated in that act (see, e.g., G. L. c. 40A, § 3) or in other controlling legislation." Sturges, supra.
Long before the enactment of G. L. c. 40A, the Legislature provided cities and town with the power to self-govern. See West St. Assocs., LLC v. Planning Bd. of Mansfield, 488 Mass. 319, 321 (2021), and cases cited. Under G. L. c. 40, § 21 (1), "[t]owns may, for the purposes hereinafter [enumerated in the statute], make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits." Among other enumerated purposes, towns may adopt bylaws for "regulating throughout the town or within a limited portion thereof, by any designated board or commission, the inspection, materials, construction, alteration or use of pipes and fixtures through which water is supplied by public water works; and to prohibit the use of such water by persons neglecting or refusing to comply with such by-laws." G. L. c. 40, § 21 (7).
General Laws c. 40A, § 3, lists several explicit limitations on the permissible subject matter of zoning ordinances and bylaws. None of these limitations concerns the regulation, siting, or operation of water supplies.
Consistent with G. L. c. 40A, the stated scope of Lynnfield's bylaws is to "regulate[] the construction, repair, alteration, reconstruction, height, number of stories, and size of building and structures, the side and width of lots, the percentage of lot area that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and establish[] performance standards governing the use of land in the Town." As part of such regulation, the bylaws include a table of use restrictions, which lists whether certain "principal uses" --which are divided into categories -- are permitted as of right in particular zoning districts. The use at issue in this case is "public water supply use," which is included in the category of "Community and Exempt Facilities." As we have already noted, the board interpreted the term "public water supply" as "a water system operated by a public sector entity (such as either of the two water districts that provide water in Lynnfield) as opposed to a commercial water supply."
The board's interpretation of "public water supply" is not preempted by the DEP's definition of "public water system" because the board's construction of the town's bylaw is not inconsistent with or repugnant to the State regulation; there is no "sharp conflict" between them. Bloom, 363 Mass. at 154. DEP's regulations are concerned with the quality, safety, and purity of drinking water at any place it might be dispensed to members of the public, whereas the bylaws are concerned with where public water supply uses may be located in the town.
Nonetheless, the plaintiff argues that if the board's construction of "public water supply" is upheld, DEP's regulation of drinking water would be frustrated, and absurd results would ensue. In fact, the opposite is true: if the DEP's definition of "public water system" were controlling on the board and the town, then operations such as restaurants, hotels, golf courses, campgrounds, ski areas, and so on -- all of which may be certified as "public water system[s]" under the drinking water regulations, 310 Code Mass. Regs. § 22.02 --would have to be considered "by right" uses under the town's zoning bylaws, and would, perforce, be allowed everywhere, in all types of zoning districts.
The parties agree that the plaintiff is registered with the DEP as a "transient non-community public water system" under 310 Code Mass. Regs. § 22.02(1). The parties further agree that the Sagamore Spring Golf Club, also located in Lynnfield, is registered with the DEP as a "transient non-community public water system."
We acknowledge that DEP's regulations do impose some restrictions on where public water systems may be sited, and on how they may be constructed. For example, the regulations provide that, "[t]o the extent practicable," a person constructing a new public water system shall avoid locating the system at a site which "is subject to a significant risk from earthquakes, floods, fires, or other disasters which could cause a breakdown of the Public Water System," or which, "except for intake structures, is within the floodplain of a 100-year flood or is lower than any recorded high tide where appropriate records exist." 310 Code Mass. Regs. §§ 22.04(2) (a) & (b) . These siting concerns are all designed to protect the safety of the water source, a concern that is not implicated by the board's interpretation of the bylaws.
It is also true that the DEP regulations impose certain limitations on the use of land surrounding surface water supplies and ground water supplies. See 310 Code Mass. Regs. §§ 22.20C, 22.21. But, notably, the restrictions on land use around surface or ground water supplies are designed to be "effectuated, at least in part," through local ordinances and zoning bylaws. For example, the regulations provide that "no public water supply well, wellfield or spring designed to withdraw, or spring which flows, 100,000 gallons per day or more that will be used in a public water system owned or operated by a municipality, and is located within that municipality, shall be placed on-line unless the municipality has wellhead protection zoning or nonzoning controls in effect that prohibit siting within the Zone II the land uses set forth in 310 CMR 22.21(2)(a) and (b)" (emphasis added). 310 Code Mass. Regs. § 22.21(1)(e). Thus, it is clear that the regulations do not intend to preempt all local zoning bylaws dealing with wells, water supplies, and the like. Further, the fact that this regulation in particular draws a distinction between a "public water system," simpliciter, and a "public water system owned or operated by a municipality," reinforces the conclusion that the DEP drinking water regulations address themselves to a fundamentally different subject than do the town's bylaws at issue here. See Roma, 478 Mass. at 591 (local bylaw prohibiting noncommercial private heliports in residential districts not preempted by State aeronautics code, notwithstanding fact that State Department of Transportation had "general supervision and control" over aeronautics under State statute). Cf. West St. Assocs., LLC v. Planning Bd. of Mansfield, 488 Mass. 319, 323-324 (2021) (local bylaw requiring marijuana dispensaries to be nonprofit entities preempted by State law specifically granting dispensaries option to be for-profit businesses).
The regulation defines "zoning controls" as "by-laws and ordinances adopted by cities and towns in accordance with M.G.L. c. 4 0A," and defines "non-zoning controls" as "by-laws, ordinances, rules and regulations, other than Zoning Controls, adopted in accordance with the constitutional and statutory powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants." 310 Code Mass. Regs. § 22.02(1).
The Land Court judge also pointed out, sensibly, that it was unlikely that the DEP's definition of "public water system" was controlling on the board and the town because the Massachusetts Water Management Act, G. L. c. 21G, §§ 1-20, also uses the term "public water system," but defines it in a manner different than the sense adopted by the DEP in its drinking water regulations, and which would not apply to the plaintiff here. The Water Management Act defines "public water system" as "a system for the provision to the public of piped water for human consumption, if such system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least sixty days of the year." G. L. c. 21G, § 2.
2. Board's interpretation not arbitrary and capricious. Where a particular zoning ordinance or bylaw is not preempted by State law, it "[is] to be construed in accordance with ordinary principles of statutory construction, with some measure of deference given to the board's interpretation." APT Asset Mgt. v. Board of Appeals of Melrose, 50 Mass.App.Ct. 133, 138 (2000), citing Advanced Dev. Concepts, Inc. v. Blackstone, 33 Mass.App.Ct. 228, 231 (1992). "In the end, the court must affirm the board's decision unless it finds that [the decision] was 'based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.'" Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 72 (2003), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). "Even when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld, as will that of a judge affirming that action under G. L. c. 40A, § 17, if a rational basis for the denial exists which is supported by the record." Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 356 (2001) . In order to determine whether the board's interpretation of a particular bylaw stands upon a reasonable basis, "[the] zoning by-law must be read in its complete context and be given a sensible meaning within that context" (citation omitted). Selectmen of Hatfield v. Garvey, 362 Mass. 821, 826 (1973).
The town's zoning bylaws establish five types of residential zoning district: Single Residence A, Single Residence B, Single Residence C, Single Residence D, and Elderly Housing. There are also various types of business and industrial districts. The spring at issue here is located in the "Single Residence C" zoning district. In such a district, the table of uses in the zoning bylaws permits the construction of one single-family dwelling on each lot, and, with the approval of the board, the alteration to an existing single-family dwelling. Several "community and exempt uses" are also permitted in the Single Residence C zoning district, including "[m]unicipal recreation or public water supply use." General retail is not a permitted use in the Single Residence C zoning district.
Substantially all the inhabitants of Lynnfield get their water from two legislatively created entities, the Lynnfield Water District and the Lynnfield Center Water District. The Lynnfield Water District was created in 1924, "for the purpose of supplying [the inhabitants of Lynnfield] with water for the extinguishment of fires and for domestic and other purposes." St. 1924, c. 445, § 1. The Lynnfield Water District was chartered as a corporate body, with an elected board of commissioners, and was given the power to take land by eminent domain, to construct all buildings and infrastructure needed to supply the town with water, to borrow money and levy taxes for those purposes, and to set equitable rates for the use of town water. See St. 1924, c. 445, §§ 2, 4, 7, 10. In 1939, the Legislature established the Lynnfield Center Water District to provide water to all inhabitants of the town not within the boundaries of the original Lynnfield Water District. See St. 1939, c. 336, § 1. This water district, likewise, was to be directed by an elected board of commissioners and had the power to take land by eminent domain, to construct buildings and appurtenances for the provision of water, and to borrow funds, levy taxes, and set water rates. See St. 1939, c. 336, §§ 2, 4, 7, 9, 10. Under the DEP's 2016 drinking water regulations, discussed supra, the Lynnfield Water District was registered as a "community public water system," serving a population of 4,784 persons through 1,449 service connections. The Lynnfield Center Water District was also registered with the DEP as a "community public water system," serving a population of 8,338 persons through 2,721 service connections. All land owned by both water districts was listed in the records of the town's Assessor as serving a "municipal" use, whereas the land owned by the plaintiff was listed in the Assessor's records as serving a "store" use.
From all of this, the Land Court judge was correct in her conclusion that the board had a rational basis for construing the phrase "public water supply" as it did. The water districts were public-sector, nonprofit entities, chartered by the Legislature, that provide the town with water. The Land Court judge correctly pointed out that the only other instance when the zoning bylaws use the word "public" -- in designating a "[p]ublic or nonprofit library, museum, art gallery, or civic center" as a "community and exempt facility" that is permitted in residential zoning districts -- the meaning of "public" is the same as in the board's construction of "public water supply," i.e., "publicly owned and non-commercial." The plaintiff, conversely, is a privately owned, for-profit business whose purpose is the retail sale of spring water; if its preferred construction of "public" were adopted, then all sorts of retail concerns would become permitted "by right" uses in residential zoning districts where they are currently prohibited, and the purposes of the town's zoning bylaws would be frustrated. This would be an absurd result, which the board's construction of "public water supply" sensibly avoided.
Judgment affirmed.
By the Court Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.