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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.
