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24-P-1418 Appeals Court
SLV BRIDGEWATER PO, LLC vs. TOWN OF BRIDGEWATER & others.1
No. 24-P-1418.
Plymouth. November 17, 2025. – July 22, 2026.
Present: Hershfang, Hodgens, & Smyth, JJ.
Zoning, Comprehensive permit, Building inspector, Lodging house.
Lodging House. Practice, Civil, Zoning appeal, Summary
judgment.
Civil action commenced in the Superior Court Department on September 10, 2021.
The case was heard by William M. White, Jr., J., on a motion for summary judgment.
Jason A. Pithie (Howard N. Gorney also present) for the plaintiff.
Jason M. Rawlins for the defendants.
HODGENS, J. After the plaintiff, SLV Bridgewater PO, LLC
(SLV), constructed an apartment building pursuant to a
1 The zoning board of appeals of Bridgewater and Stephan Solari, as building inspector and zoning enforcement officer of Bridgewater.
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comprehensive permit approved under G. L. c. 40B, the defendant
building inspector for the town of Bridgewater issued a cease
and desist order. Citing a provision of the town's zoning
bylaws prohibiting lodging houses, the order asserted that SLV
had violated the bylaw by leasing, or intending to lease,
apartment units to four or more tenants unrelated to the owner
of the property. SLV unsuccessfully appealed from that order to
the town's zoning board of appeals (board) and thereafter
challenged the board's decision and sought damages by filing a
complaint in the Superior Court. A judge allowed the
defendants' motion for summary judgment. We reverse in part and
affirm in part.
Background. On October 10, 2018, the board unanimously
approved a comprehensive permit pursuant to G. L. c. 40B, §§ 20-23, allowing Scollay Development, LLC, to construct a four-story
apartment building containing "one, two and three-bedroom
units," and reserving just over twenty-five percent of units for
below-market rent. The comprehensive permit included more than
one hundred conditions, separated into nine categories including
regulatory, general, activity and use limitation, waivers, and
validity of permit, among others. Regulatory conditions limited
the total number of "dwelling units" to fifty-eight "as shown on
the Plans of Record," and a maximum of one hundred and twelve
bedrooms. General conditions required construction "in
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accordance with the Plans of Record" and compliance with all
town bylaws "unless expressly waived" or "as provided on the
approved Plans." The board expressly waived a zoning bylaw
prohibiting multi-family dwellings in the district.
On May 31, 2019, Scollay Development, LLC, assigned its
rights in the comprehensive permit to SLV. On July 15, 2019,
SLV submitted a "Notice of Project Change" to the board,
indicated that the comprehensive permit had been transferred,
and sought approval for a new set of architectural plans. The
new plans made "insubstantial change[s]," maintained the fiftyeight apartments, and referenced three available configurations:
one bedroom; two bedrooms; and three bedrooms. The plans
clearly indicate that each bedroom would have two beds such that
one-bedroom units would have two beds; two-bedroom units would
have four beds; and three-bedroom units would have six beds for
a total of 222 beds. On August 20, 2019, the board unanimously
approved the new plans, showing bedroom occupancy, without any
additional conditions.
Nearly two years later, on June 16, 2021, the building
inspector sent SLV the cease and desist order. He noted that
the zoning bylaws prohibited "the addition of lodging houses
within any zoning district" and further noted that a lodging
house is defined as a "house/dwelling unit where lodgings are
let to four or more persons not within the second degree of
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kindred to the legal owner of the premises." The building
inspector reasoned that because each apartment constituted a
"dwelling unit" under the bylaw, SLV could not lease any unit to
four or more people outside the second degree of kindred to SLV.
He ordered SLV to "cease and desist from letting dwelling units
to four or more persons not within the second degree of kindred"
and ordered SLV to immediately notify tenants that it would be
unable "to accommodate or honor lodging where four or more
persons not within the second degree of kindred will be
staying."
SLV appealed from the building inspector's order to the
board pursuant to G. L. c. 40A, §§ 8, 14-15. Following a public
hearing, the board unanimously voted to uphold the building
inspector's order. Pursuant to G. L. c. 40A, § 17, SLV appealed
from the board's decision by filing a multi-count complaint in
the Superior Court. As to all counts, SLV claimed, among other
reasons, that there was no lawful basis for the cease and desist
order because it had obtained a comprehensive permit that
allowed a maximum of six tenants per unit as set forth in the
newly approved plans. SLV also sought damages. The defendants
filed counterclaims seeking a declaration that SLV was operating
an illegal lodging house.
The judge allowed the defendants' motion for summary
judgment on the complaint and counterclaims. In so doing, the
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judge rejected the claims seeking damages, concluded that SLV
did not obtain a waiver from the occupancy limit set forth in
the lodging-house bylaw, declared that "SLV is in violation of
the lodging-house bylaw," and enjoined SLV from letting units to
four or more persons who are not related to each other by blood
or marriage."
On appeal, SLV only challenges the judgment as it pertains
to the occupancy limit and does not press its claims for
damages. For the reasons that follow, we reverse that portion
of the judgment pertaining to the occupancy limit. Where SLV
has not advanced any argument on its claims for damages, we
affirm that portion of the judgment that rejects those claims.
See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019).
Discussion. Our obligation on appeal is to examine the
"zoning board's decision and that of the reviewing Superior
Court." Eastern Point, LLC v. Zoning Bd. of Appeals of
Gloucester, 74 Mass. App. Ct. 481, 486 (2009). The board's
decision "cannot be disturbed unless it is based on a legally
untenable ground, or is unreasonable, whimsical, capricious or
arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass.
635, 639 (1970). "[S]ummary judgment is appropriate where there
are no genuine issues of material fact in dispute and the moving
party is entitled to judgment as a matter of law" (citation
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omitted). Williams v. Board of Appeals of Norwell, 490 Mass.
684, 689 (2022). Applying de novo review to the summary
judgment record, Tracer Lane II Realty, LLC v. Waltham, 489
Mass. 775, 778 (2022), we conclude that the decisions of the
board and the reviewing judge upholding the cease and desist
order conflict with the requirements of G. L. c. 40B.
We need not address the defendants' interpretation of the
lodging house bylaw because the board established the occupancy
limits through the operation of G. L. c. 40B, § 21. By
approving the comprehensive permit applications under G. L.
c. 40B, § 21, which authorizes the board to override certain
local requirements, the board established the occupancy limits
long before the cease and desist order attempted to enforce the
lodging-house bylaw. See Dennis Hous. Corp. v. Zoning Bd. of
Appeals of Dennis, 439 Mass. 71, 77 (2003) (board "has the power
to override requirements or restrictions that would normally be
imposed by" local boards). Through the comprehensive permit
dated October 10, 2018, the board initially approved a "mix of
one, two and three-bedroom units." On August 20, 2019, the
board unanimously approved SLV's new plans that included
apartment configurations of one bedroom (two beds), two bedroom
(four beds), and three bedroom (six beds) without any limitation
on the basis of the familial relationship of the occupants to
one another or to the owner of an apartment. The board did not
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impose any conditions limiting occupancy to less than the number
of beds identified in the newly approved plans or to persons
within the second degree of kindred. After obtaining the
board's approval of the new plans, SLV constructed the apartment
building "in accordance with the Plans of Record" as required by
the conditions of the comprehensive permit. By incorporating
the plans of record, the comprehensive permit, as amended by the
board's approval of the new plans, fixed the occupancy limit,
superseded the occupancy limit contained in the lodging-house
section of the bylaws, and foreclosed the building inspector's
attempt in the 2021 cease and desist order to impose different
occupancy limitations. See G. L. c. 40B, § 21 (decision of
board granting comprehensive permit subsumes approvals by "any
local board or official who would otherwise act"); Zoning Bd. of
Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748, 759
(2010) (core purpose of chapter 40B is "to streamline the
process for obtaining the necessary authorization to build much
needed low and moderate income housing"); Dennis Hous. Corp.,
439 Mass. at 77 (board may "override" bylaw).
Approval of a comprehensive permit does not, by itself,
deprive municipal officials from exercising all legitimate
police powers under the zoning bylaws. See Board of Appeals of
Hanover v. Housing Appeals Comm. in Dep't of Community Affairs,
363 Mass. 339, 360 (1973) ("municipalities can pass zoning
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ordinances or by-laws as an exercise of their independent police
powers but these powers cannot be exercised in a manner which
frustrates the purpose or implementation of a general or special
law"). See also Board of Appeals of N. Andover v. Housing
Appeals Committee, 4 Mass. App. Ct. 676, 683 (1976) (G. L.
c. 40B, §§ 20-23 does not prevent enforcement of building
requirements under State building code). Municipal officials
cannot, however, approve an occupancy limit under a
comprehensive permit only to later unilaterally change their
minds about the very same occupancy limit under the guise of
that power. Here, the board's approval of the comprehensive
permit allowing up to six occupants in designated apartments
without any limitation as to their familial relationships
necessarily deprived the building inspector of any lawful basis
to issue a subsequent cease and desist order that attempted to
restrict unit occupancy to fewer than four people. See Taylor
v. Board of Appeals of Lexington, 451 Mass. 270, 277-278 (2008)
(chapter 40B furthers Legislature's goal of increasing low or
moderate income housing "primarily by overriding local zoning
restrictions"); Board of Appeals of Hanover, 363 Mass. at 385
(comprehensive permit is "mechanism designed to supersede, when
necessary, local restrictive requirements and regulations,
including zoning by-laws and ordinances"). By upholding the
building inspector's cease and desist order that had no lawful
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basis, the board decided SLV's appeal on "a legally untenable
ground." MacGibbon, 356 Mass. at 639. The defendants' motion
for summary judgment should have been denied on this basis.
We disagree with the defendants' contention that a
condition embedded within the comprehensive permit reserved the
building inspector's authority to enforce the lodging-house
bylaw's occupancy limit at some future time. They point to the
board's comprehensive permit condition that generally required
SLV to "comply with the Town of Bridgewater Zoning Bylaw."
Given the board's ability to override local regulations, the
power of a zoning board to subsequently enforce its zoning
regulations does not extend to changing occupancy limits that
had previously been fixed by a comprehensive permit. Neither
chapter 40A nor 40B countenances such caprice by a municipal
board -- approving occupancy limits under a comprehensive permit
followed by an astonishing about-face years later by issuing a
cease and desist order imposing new occupancy limits.
Government power exercised thusly slips into the prohibited
category of "unreasonable, whimsical, capricious or arbitrary"
conduct. MacGibbon, 356 Mass. at 639. We also note that the
board was aware that SLV is a business entity and logically
cannot be kindred to the tenants. With that understanding, as
well as the plans showing up to six tenants per unit without
restriction, it would be unreasonable for the board to approve
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the comprehensive permit only to later agree with the building
inspector that tenants in units with four or more occupants also
required kinship with SLV.
Moreover, the defendants' position would thwart the
appellate process under chapter 40B and would reduce the
comprehensive permit to a hollow parchment promise. When a
municipality approves a comprehensive permit, the board is
authorized to impose conditions. See G. L. c. 40B, § 21. If
the conditions and requirements render the "housing uneconomic,"
within twenty days of the board decision "the applicant shall
have the right to appeal to the housing appeals committee in the
executive office of housing and livable communities for a review
of the same." G. L. c. 40B, § 22. As illustrated by the
present case, an applicant is deprived of these appellate rights
if the conditions and requirements lack specificity.
The comprehensive permit's condition that SLV comply with
all zoning bylaws gave no hint that the lodging-house bylaw
might someday strike like a bolt out of the blue to render the
"housing uneconomic" -- such a potential problem did not emerge
here until years after project approval when the building
inspector invoked the specific occupancy limits in the lodginghouse bylaw. By then, the twenty-day appeal period had lapsed,
and SLV did not have an opportunity to appeal to the housing
appeals committee. If the board wanted to limit occupancy based
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on familial relationships, rather than approving the
unrestricted bedroom configurations in the new architectural
plans, the board should have added conditions specifying such
occupancy limits. G. L. c. 40B, § 21. That was not done here.
The board's general reservation of rights under the zoning
bylaws fell far short of providing the rudimentary "full notice
as shall enable all those interested to know what is projected
and to have opportunity to protest," Kane v. Board of Appeals of
Medford, 273 Mass. 97, 104 (1930), the specific occupancy limits
later invoked under the cease and desist order.
Finally, we reject the defendants' contention that the
defendants are entitled to summary judgment because SLV failed
to request a specific waiver of the lodging-house bylaw
prohibiting occupancy by four or more unrelated tenants. While
regulations provide that "a list of requested Waivers," 760 Code
Mass. Regs. § 56.05(2)(h) (2020), shall be submitted in an
application to the board, the absence of "a particular item
shall not necessarily invalidate an application." 760 Code
Mass. Regs. § 56.05(2) (2020). Here, although the list of
waivers did not include the lodging house section of the bylaws,
the intended occupancy was not a secret where nothing in the
application suggested that occupancy would be limited based on
familial relationships. According to the procedural summary in
the comprehensive permit and the exhibits in support of the
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application, Scollay Development, SLV's predecessor, disclosed
from the outset that it intended to lease a "mix of one, two and
three-bedroom units." A sample lease clause on subletting,
submitted to the board, stated that the units were "intended
only for residential purposes by not more than one family unit
nor more than two (2) unrelated persons per bedroom," which
would have allowed at least six unrelated persons in a threebedroom unit. Aided by a consultant on chapter 40B projects,
the board approved the application and expressly waived the
zoning bylaw prohibiting multi-family dwellings in the district.
The new plans submitted by SLV, and approved by the board, made
"insubstantial change[s]" and simply delineated the occupancy
limits of the apartments as one bedroom (two beds), two bedrooms
(four beds), and three bedrooms (six beds). Because Scollay
Development sought occupancy limits that allowed for units with
more than four tenants unrelated to the owner, the absence of an
additional, express request by SLV for a waiver of the lodginghouse bylaw's prohibition regarding tenants unrelated to the
owner did not invalidate the application or the subsequent
comprehensive permit. See 760 Code Mass. Regs. § 56.05(7)
("Applicant may request Waivers as listed in its application or
as may subsequently arise during the hearing . . . " [emphasis
added]) . See also 760 Code Mass. Regs. § 56.05(2).
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Conclusion. We reverse so much of the judgment that
declares that SLV is in violation of the lodging house bylaw and
enforces the cease and desist order. The matter shall be
remanded for a new judgment instructing the board to vacate the
cease and desist order. The remainder of the judgment on the
claims for damages is affirmed.
So ordered.