Hanlon v. Town of Sheffield , 89 Mass. App. Ct. 392 ( 2016 )

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15-P-799 Appeals Court
JOHN R. HANLON, JR. vs. TOWN OF SHEFFIELD & others.1
No. 15-P-799.
Suffolk. March 7, 2016. - May 13, 2016.
Present: Kafker, C.J., Katzmann, & Grainger, JJ.
Zoning, Private airstrip, Validity of by-law or ordinance.
Statute, Construction. Municipal Corporations, By-laws and
ordinances.
Civil action commenced in the Land Court Department on
March 21, 2012.
The case was heard by Howard P. Speicher, J., on a motion
for summary judgment.
Alexandra H. Glover for the plaintiff.
Peter Sacks, State Solicitor, for Department of
Transportation, amicus curiae.
GRAINGER, J. The plaintiff John R. Hanlon, Jr., appeals
from summary judgment entered in favor of the defendants, ruling
that the town of Sheffield (town) was authorized to regulate the
1
Zoning board of appeals of Sheffield and building
inspector/zoning enforcement officer of Sheffield.
2
plaintiff's use of his property as a private noncommercial
aircraft landing area notwithstanding the regulatory authority
of the Massachusetts Department of Transportation aeronautics
division (division).2 In reversing the judgment we acknowledge
that the motion judge was confronted, as are we, with statutory
language in G. L. c. 90, § 39B, that undermines the evident
purpose of the statute, and we note that this is an appropriate
subject for corrective legislation.3
Background. The facts are undisputed. The plaintiff owns
approximately thirty-eight acres of land (property) in the town,
containing the plaintiff's residence and a number of
outbuildings suitable for storage of small airplanes. On the
property, the plaintiff created a strip eighty feet wide by
1,250 feet long for takeoff and landing of airplanes and, since
at least 2006, has operated aircraft from the property as a
hobby. In 2006, the plaintiff registered the property with the
Federal Aviation Administration as a helipad. Pursuant to G. L.
c. 90, § 39B, fourth par., he also registered the property as a
2
The Transportation Reform Act of 2009, St. 2009, c. 25,
transferred to the division the powers and duties of the former
Massachusetts Aeronautics Commission and additionally changed
the definition of "Commission" in the statute to the division.
G. L. c. 90, § 35(m). For the sake of consistency, we refer
only to the division regardless of which entity was in power at
the time.
3
We acknowledge the amicus brief and participation in oral
argument on behalf of the plaintiff by the State Solicitor.
3
noncommercial private restricted landing area (PRLA) with the
division. He neither sought nor received any approval from the
town with respect to the PRLA.
The property is located in a rural district under the town
zoning by-law. Section 3.1 of the by-law provides that land
may not be "used except as set forth in the . . . Table of Use
Regulations." The section further provides that "[a]ny . . .
use of premises not herein expressly permitted is hereby
prohibited." Although "commercial airfield" is listed as a
prohibited use in rural districts, the Table of Use Regulations
contains no mention of noncommercial or private airfields.
In a letter dated November 15, 2011, the town's building
commissioner/zoning enforcement officer ordered the plaintiff to
cease and desist from using the PRLA on the property as such use
was not "set forth" in § 3.1 of the by-law, and was therefore
prohibited. The plaintiff appealed the cease and desist order
to the town zoning board of appeals (board), which held hearings
on four dates.4 The board upheld the cease and desist order, and
the plaintiff appealed the decision to the Land Court. In the
Land Court, the plaintiff both appealed the board's decision,
see G. L. c. 40A, § 17, and sought a determination that the by-
law provision was invalid, see G. L. c. 240, § 14A, insofar as
4
Hearings were held on January 19, 2012, January 26, 2012,
February 6, 2012, and February 28, 2012.
4
it purports to regulate the use of the property for aircraft,
because the town never submitted it to the division for
approval. On the plaintiff's motion for summary judgment, the
judge held in favor of the town, declaring the by-law provision
valid and enforceable to prohibit the plaintiff's use of the
property as a PRLA.
Discussion. The issue at hand is whether G. L. c. 90,
§ 39B, fifth par., read in conjunction with the section's
preceding fourth paragraph, allows a municipality to ban
noncommercial PRLAs without prior approval from the division.
"We review questions of statutory interpretation de novo."
Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481
(2006). However, "[o]ur primary duty in interpreting a statute
is to effectuate the intent of the Legislature in enacting it.
. . . Where the meaning of a statute is not plain from its
language, we consider the cause of its enactment, the mischief
or imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
effectuated." Water Dept. of Fairhaven v. Department of Envtl.
Protection, 455 Mass. 740, 744 (2010) (quotations and citations
omitted). In doing so, "[w]e give substantial deference to a
reasonable interpretation of a statute by the administrative
agency charged with its administration enforcement." Commerce
Ins. Co. v. Commissioner of Ins., supra.
5
Section 39B, added to the General Laws by St. 1946, c. 607,
§ 1, governs division approval of municipal airport sites and
restricted landing areas and details the procedure for receiving
a certificate of approval from the division.5 The fifth
paragraph of § 39B, inserted by St. 1985, c. 30, requires that a
municipality making any rule, regulation, ordinance or by-law
"relative to the use and operation of aircraft on said airport
or restricted landing area," receive approval from the division
prior to the rule's taking effect. The language of the fifth
paragraph applies to all landing facilities; it does not
distinguish between commercial landing areas and private
noncommercial landing areas.6 Therefore, if the fifth paragraph
is applicable in these circumstances, the town's cease and
desist order is invalid, because the by-law provision on which
it is based has not been approved by the division.
5
The first version of the statute passed in 1946 consisted
of current paragraphs 1, 3, 4, and 6. Two years later, the
second paragraph was added. In 1985, thirty-nine years
thereafter, the fifth paragraph was added.
6
The full text of the fifth paragraph states:
"A city or town in which is situated the whole or any
portion of an airport or restricted landing area owned by a
person may, as to so much thereof as is located within its
boundaries, make and enforce rules and regulations relative
to the use and operation of aircraft on said airport or
restricted landing area. Such rules and regulations,
ordinances or by-laws shall be submitted to the [division]
and shall not take effect until approved by the
[division]."
6
However, the fourth paragraph of § 39B, already in effect
at the time the fifth paragraph was enacted, contains the
following introductory clause: "This section shall not apply to
restricted landing areas designed for non-commercial private use
. . ." (emphasis added). Read literally, this wording exempts
noncommercial private landing areas from every provision
contained in all six paragraphs of § 39B, whether the provision
was enacted at the same time or almost four decades after the
fourth paragraph.
The application of the fourth paragraph to the fifth
paragraph of § 39B creates a serious incongruity. The fifth
paragraph is a legislative delegation to the division to approve
or disapprove municipal ordinances and by-laws regulating an
"airport or restricted landing area owned by a person."7 The
statute as a whole contains no other provision that refers to
any municipal power to regulate private noncommercial landing
areas other than the language in § 39B, fifth par. The fifth
paragraph allows for division review of such municipal rules and
regulations, and thereby implies the permissibility of those
rules and regulations in the first place.
7
See G. L. c. 90, § 35(o), as amended by St. 1946, c. 507
(defining "Person" as "any individual, firm, partnership,
corporation, company, association, joint stock association; and
[including] any trustee, receiver, assignee or other similar
representative thereof"). This simply details varieties of
private ownership.
7
As a result, were we to apply the exemption of the fourth
paragraph of § 39B to the fifth paragraph, it would eliminate
the only statutory basis for a town's regulation of private
noncommercial landing areas. Otherwise stated, our choice is to
interpret the statute to require town regulation of private
noncommercial landing areas to be subject to division approval
or, alternatively, to declare that there is no basis for any
municipal regulation at the outset. To avoid the latter
outcome, we read the word "section" in the fourth paragraph to
apply to the preceding paragraphs, but not to the fifth
paragraph. See, e.g., Commonwealth v. Neiman, 396 Mass. 754,
757-758 (1986) (use of "this section" in fourth paragraph of
G. L. c. 94C, § 32A, held to apply only to immediately preceding
subsection).
This interpretation resolves additional discrepancies with
related sections of G. L. c. 90. For example, G. L. c. 90,
§ 39, as appearing in St. 1948, c. 637, § 10, sets forth the
express legislative grant of "general supervision and control
over aeronautics" to the division. This wording is difficult to
reconcile with an unreviewable assignment of one portion of the
same regulatory authority to cities and towns. General, not
limited, "supervision and control" is delegated to the division
specifically
8
"for the purpose of protecting and insuring the general
public interests and safety, and the safety of persons
receiving instructions concerning, or operating or using,
aircraft and of persons and property being transported in
aircraft, and for the purpose of developing and promoting
aeronautics within the commonwealth . . . ."
G. L. c. 90, § 39, fourth par., as amended by St. 1946, c. 583,
§ 3. Likewise, § 40 of c. 90, as amended by St. 1946, c. 582,
§ 1, reinforces the breadth of jurisdiction delegated to the
division by the Legislature. The division is authorized and
directed to "foster air commerce and private flying within the
commonwealth and for such purpose shall: (a) encourage the
establishment of airports and air navigation facilities and the
development of education in aeronautics."
On the infrequent occasions when we are presented with this
level of statutory incongruity, our cases instruct "that we
should not accept the literal meaning of the words of a statute
without regard for that statute's purpose and history."
Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839
(1986). Libertarian Assn. of Mass. v. Secretary of the
Commonwealth, 462 Mass. 538, 551 (2012). We "are not foreclosed
by faulty or imprecise draftsmanship from giving statutes and
ordinances a practical and reasonable construction." Advanced
Dev. Concepts, Inc. v. Blackstone, 33 Mass. App. Ct. 228, 232
(1992). Cf. Reade v Secretary of the Commonwealth, 472 Mass.
573, 584 (2015).
9
We therefore conclude that this case "presents one of those
rare instances in which a court must overcome its reluctance to
supply word or words which were not employed by the Legislature
. . . in order to render a statute intelligible and so
effectuate its obvious intent." Watros v. Greater Lynn Mental
Health & Retardation Assn., Inc. 421 Mass. 106, 114 n.3 (1995)
(quotation and citation omitted). Accordingly, we interpret the
word "section" in the fourth paragraph of G. L. c. 90, § 39B, to
refer to those provisions of the § 39B in effect at the time the
fourth paragraph was added to the statute in 1946, but not to
the fifth paragraph, here at issue, which was added to the
statute in 1985, almost four decades later. As a result, any
part of § 3.1 of the town zoning by-law that purports to
regulate "the use and operation of aircraft on [an] airport or
restricted landing area" cannot take effect until "submitted to
the [division] and . . . until approved by the [division]."
The judgment is reversed and the matter is remanded to the
Land Court for entry of a new judgment consistent with this
opinion.
So ordered.