MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns a twenty-foot right of way (way) abutting a beachfront home owned by Brian S. Hickey and Mary P. Hickey (Hickeys). The zoning board of appeals of Dennis (board) upheld a determination of the building commissioner that Pathways Association, Inc. (Pathways), did not need approval under the zoning bylaw (bylaw) to construct a stairway within the way. On the Hickeys’ appeal under G. L. c. 40A, § 17, a judge of the Land Court concluded that the board misapplied the use provisions of the bylaw, and judgment entered annulling the boards decision. We reverse.
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Background. The way has been the subject of several prior appeals. See Hickey v. Pathways Assn, Inc., 472 Mass. 735 (2015) (Hickey I); Hickey v. Conservation Commn of Dennis, 93 Mass. App. Ct. 655 (2018) (Hickey II); Loiselle v. Hickey, 93 Mass. App. Ct. 644 (2018) (Loiselle); Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 (2018). We summarize only those facts relevant to the issues in this appeal.
The way, which is located in the R-40 residential district in Dennis, begins at a public street, proceeds northerly to the edge of a steep coastal bank, descends sharply to a beach, and ends at Cape Cod Bay. Pathways is a neighborhood association whose members have easement rights in the way. See Hickey I, 472 Mass. at 743, 764-765; Loiselle, 93 Mass. App. Ct. at 650-652. Although up to 200 inland lots have such easement rights, only thirty-five inland owners are members of Pathways.
Pathways has endeavored for several years to build a stairway within the way to ease the passage of its members across the coastal bank. To that end, in January 2016, Pathways asked the building commissioner to provide an opinion interpreting the bylaw. In response the building commissioner determined that “[t]he walkway and stairs that are proposed are nothing more than landscape features designed for pedestrian access” and that “[t]he [t]own of Dennis does not require a building permit for landscape features and ․ would not require ․ applicants to seek relief from the [board] for setbacks to a landscape feature.” The Hickeys appealed to the board, which upheld the building commissioners decision. The board concluded that the setback requirements of the bylaw “do not apply to facilities located in ways” and that “ways are regulated under the Subdivision Control By-law.” The board also declined to address the Hickeys’ assertion that Pathways members had no right to use the stairway “for views, resting or recreating,” finding that the bylaw did not regulate such uses.
The Hickeys then appealed to the Land Court under G. L. c. 40A, § 17. At trial the Hickeys challenged the stairway as both an illegal structure and an illegal use but, as the judge observed, did not “cast their arguments ․ in the same way they presented them to the [b]oard.” The judge thus concluded that a remand was necessary for the board to interpret several provisions of the bylaw in the first instance. Pertinent here is section 2.2.1, which provides:
“[S]tructures shall be erected or used and premises shall be used only as set forth in the ‘Use Regulations Schedule,’ except as exempted by Section 2.4 or by statute․ Any use not specifically enumerated in a district herein shall be deemed to be prohibited.”
As we read the judges decision, the board was to consider two specific issues pertaining to section 2.2.1 on remand. First, the board was to explain how the stairway was an allowed use under section 2.2.1, given that it did not “appear to be one of the allowed ‘principal uses’ of properties in the R-40 District,” as set forth in the Use Regulations Schedule. Second, the board was to clarify why it was “disclaim[ing] the power” under section 2.2.1 “to regulate uses of ‘ways’ for ‘views, resting or recreating.’ ”
On remand the board again concluded that the stairway did not require any relief under the bylaw. With regard to the use issue, the board made the following findings, among others: “the ‘way is not a parcel of land, but rather a portion of a street network providing access’ ”; “[p]edestrian facilities are typically located within ways”; “[t]he staircase in question is a pedestrian facility similar to a sidewalk located within a way”; and “the staircase, as a pedestrian facility, is an allowed use of the way.”
Upon return of the matter to the Land Court, the judge issued an amended decision vacating the boards decision on remand. The judge concluded that the use of the stairway was specifically prohibited by the bylaws Use Regulations Schedule -- in particular, the prohibition against structures used by a “[p]rivate club, for members only” in the R-40 District.
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The judge also appeared to conclude that the use of the stairway ran afoul of the provision in section 2.2.1 that “[a]ny use not specifically enumerated in a district herein shall be deemed to be prohibited.” We perceive the judges reasoning to be that the Use Regulations Schedule does not identify private ways as an allowed use in the R-40 District.
Discussion. Judicial review under G. L. c. 40A, § 17, is “highly deferential” to the decision of the local zoning board. Wendys Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 382 (2009), quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003). A judge must not reverse a boards decision “unless it is based on a legally untenable ground” or is “unreasonable, whimsical, capricious or arbitrary.” Wendys Old Fashioned Hamburgers of New York, Inc., supra, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 487 (1999). On appellate review we “remain[ ] ‘highly deferential’ ” to the boards decision “[w]ith respect to conclusions regarding interpretations of a zoning ordinance and their application to the facts.” Wendys Old Fashioned Hamburgers of New York, Inc., supra at 383, quoting Britton, supra at 74.
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Notwithstanding these settled principles, the Hickeys contend that no deference is warranted in this case because the boards decision on remand did not address the bylaws prohibition against structures used by a “[p]rivate club, for members only” in the R-40 District. We do not fault the board for that omission, however, because the judge did not identify the “[p]rivate club, for members only” issue in his initial decision remanding the matter to the board. Instead, the issue appears for the first time in the judges amended decision following the remand.
Although we lack the benefit of the boards views as a result, a second remand to the board is unnecessary because we conclude that under no reasonable interpretation of the bylaw can the proposed stairway be deemed a “[p]rivate club, for members only.”
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Cf. Wendys Old Fashioned Hamburgers of New York, Inc., 454 Mass. at 382-383 (“we have approved affirmative relief from the denial by the board where remand to a board would be futile, or where it is clear that remand would postpone an inevitable result”). The bylaw defines “[p]rivate club, for members only” as “[a] structure or facility owned and/or operated by a corporation or association of persons for social or recreational purposes.” While Pathways may qualify as a “corporation or association of persons,” it would not own or operate the stairway “for social or recreational purposes.” Rather, the stairway, as the board found, “is a pedestrian facility similar to a sidewalk”, and its purpose is to facilitate access over the way. See Hickey II, 93 Mass. App. Ct. at 659 (“As the incorporated association representing inland owners who hold easements allowing them to use [the] [w]ay for access, Pathways is a proper party to seek approval to build a walkway in order that such access rights can be used”).
In reaching a contrary conclusion, the judge appears to have reasoned that the prohibition applies because Pathways itself is a “[p]rivate club, for members only” and would own the stairway. Likewise, the Hickeys’ argument on appeal is that Pathways itself is a “[p]rivate club, for members only.” But the bylaw regulates use, not ownership, and the judge made no findings that the use of the stairway would bring it within the scope of the prohibition. In particular, the judge did not find that Pathways would use the stairway “for social and recreational purposes”; to the contrary, his sole finding on use is that Pathways seeks to build the stairway to “ease the passage of its members up and down the coastal bank.” Furthermore, the judge did not find, and we can conceive of no lawful way, that Pathways could restrict use of the stairway to its members only. Pathways’ members comprise a small percentage of the overall number of easement holders, who, as the judge recognized, are not “obligate[d] ․ to join Pathways or abide by its rules.”
The Hickeys rely in the alternative on the provision of section 2.2.1 that “[a]ny use not specifically enumerated in a district herein shall be deemed to be prohibited.” But the Hickeys do not identify the nature of the use that they believe had to be enumerated. They do not rely on the judges reasoning that the bylaw does not list private ways as an allowed use, nor do they resurrect their argument that the bylaw prohibits using the stairway for “views, resting or recreating.” In any event we agree with Pathways that it was not “unreasonable, whimsical, capricious or arbitrary” for the board to find that private ways are allowed in Dennis, including in the R-40 District. Wendys Old Fashioned Hamburgers of New York, Inc., 454 Mass. at 382. Indeed, the bylaw refers in multiple places to private ways and streets, demonstrating that they are allowed uses even though they are nowhere identified in the Use Regulations Schedule. See Britton, 59 Mass. App. Ct. at 74-75 (boards discretion “extends up to those rarely encountered points where no rational view of the facts ․ supports the boards conclusion”).
The judgment is reversed, and the matter is remanded for entry of a new judgment affirming the decision of the board.
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So ordered.
reversed and remanded
FOOTNOTES
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. Only Pathways appealed from the judgment. The board did not participate in the appeal.
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. The judge upheld the boards determination that the bylaw does not regulate structures within streets and ways. That part of the judges decision is not at issue on appeal.
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. No party has challenged the judges factual findings as clearly erroneous. See Wendys Old Fashioned Hamburgers of New York, Inc., supra at 383.
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. It is difficult to discern from the boards decision on remand whether it believes that the use provisions of the bylaw apply to the stairway at all. We will assume, without deciding, that they do apply.
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. We do not address the Hickeys’ contention that the stairway will overburden the easement, as that issue is not properly before us.