KEVIN M. SEXTON, Trustee v. ZONING BOARD OF APPEALS OF WELLFLEET.

• Court: Massachusetts Appeals Court
• Decided: December 4, 2025
• Docket: 24-P-1116
• Status: Unpublished

Opinion

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1116

KEVIN M. SEXTON, trustee,1

vs.

ZONING BOARD OF APPEALS OF WELLFLEET.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from the plaintiff's efforts to create

additional parking and construct a new driveway for rental

cottages he owns on property in the town of Wellfleet. The

town's building commissioner ordered that the plaintiff cease

and desist from cutting "timber" (first order) and from

expanding the parking lot without the required permit (second

order), informing him that those actions violated certain

sections of Wellfleet's zoning bylaws (bylaws). After the

town's zoning board of appeals (board) affirmed the cease and

desist orders, the plaintiff appealed the board's decisions to

the Land Court under G. L. c. 40A, § 17. The plaintiff then

1 Of the Cook Family Trust II. moved for summary judgment, claiming that the board's decisions

were "legally untenable, improper, arbitrary, capricious,

unreasonable, and exceeded the Board's authority." We affirm

the Land Court judge's order (1) entering summary judgment for

the board and against the plaintiff with respect to the first

order; (2) entering summary judgment for the board and against

the plaintiff with respect to the second order, to the extent it

required the plaintiff to apply for a permit before cutting any

further trees to create additional parking on his property; and

(3) remanding the matters to the board to determine whether

clearing some amount of the property would be permitted as

"reasonable control of brush and trees" under bylaw section 6.9

(section 6.9) and to allow the plaintiff to apply for the

appropriate permit to expand parking and create a new driveway.

Background. The summary judgment record establishes the

following facts, which are not in dispute. The plaintiff owned

land in the town of Wellfleet (property), within the National

Seashore Park District (NSP), which covers the portion of

Wellfleet located within the Cape Cod National Seashore National

Park (CCNS). The plaintiff operated a cottage colony on the

property, consisting of sixteen rental cottages, one single-

family residence, and parking. Bylaw section 5.3.2 prohibited

cottage colonies in the NSP; however, the plaintiff's cottage

2 colony was allowed as a preexisting nonconforming use under

bylaw section 6.1.

On June 14, 2021, the plaintiff's brother informed the

Wellfleet building commissioner that trees would be cut down on

the property in connection with the construction of a private

parking lot and dirt driveway. Tree cutting commenced that day.

All trees cut were "scrub pine trees." On June 15, 2021, the

building commissioner issued the first order, asserting that the

plaintiff's tree cutting violated section 6.9 governing the

cutting of "timber" in the NSP. The plaintiff stopped cutting

trees after receiving the order. On June 25, 2021, the building

commissioner issued the second order, asserting that the

plaintiff's tree cutting violated bylaw section 8.2, which

required a permit for the alteration of use of land in the NSP,

and section 5.3.2, which required a permit for extension of a

nonconforming use. The order informed the plaintiff he could

submit a permit application to seek zoning approval.

Discussion. 1. Standard of review. "The allowance of a

motion for summary 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 omitted).

Williams v. Board of Appeals of Norwell, 490 Mass. 684, 689

(2022). Our review is de novo. See Tracer Lane II Realty, LLC

3 v. Waltham, 489 Mass. 775, 778 (2022). "We will uphold a zoning

board's decision and that of the reviewing [Land] Court if a

rational basis for the [decision] exists which is supported by

the record" (quotation and citation omitted). Eastern Point,

LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct.

481, 486 (2009).

2. Cutting of "timber". In relevant part, section 6.9,

"Cutting of Timber," provides as follows: "Within the National

Seashore Park District there shall be no cutting of timber

except for the following reasons: (a) By an owner for the

purpose of reasonably controlling brush or trees . . . ." The

board found that the plaintiff cut trees "to build a parking

area and driveway for the residents of the cottage

colony . . . ." It determined that the word "timber," as used

in section 6.9, "includes 'scrub pine' trees, the type of trees

removed during the course of the [plaintiff's] tree removal

project." The plaintiff argues that the word "timber" refers to

trees that are used to produce building materials. He asserts

that scrub pines are "unsuitable for lumber," and therefore the

board's interpretation of section 6.9 was error. We disagree.

"[W]here [a bylaw's] language is plain and unambiguous, we

enforce the bylaw according to its plain wording," but where

"terms are undefined or otherwise ambiguous, we will defer to a

4 local zoning board's reasonable interpretation" (citation

omitted). Pinecroft v. Zoning Bd. of Appeals of West Boylston,

101 Mass. App. Ct. 122, 128 (2022). Interpreting a bylaw

follows ordinary rules of statutory construction, including

giving words their usual and accepted meanings and considering

the law's purpose. See Williams, 490 Mass. at 693-694. "An

interpretation of a bylaw provision is unreasonable if it is

inconsistent with that provision's purpose or the bylaw as a

whole." Pinecroft, supra at 128. If the board's interpretation

of its bylaw is reasonable, the court may not substitute its

judgment. Tanner v. Board of Appeals of Boxford, 61 Mass. App.

Ct. 647, 649 (2004).

Although the bylaw does not define "timber," the

prohibition against the cutting of "timber" in section 6.9 is

limited to land located in the NSP. The board based its

interpretation of "timber" as including scrub pines on several

factors. First, the board found that, dating back to the

adoption of section 6.9, most trees in the NSP were scrub pine

trees and few, if any, were "trees suitable for use in the

erection of buildings." The board also looked to the stated

objective of zoning bylaws for the NSP, all of which is located

within the CCNS, to protect "the scenic, scientific[,] and

cultural values of the area," to preserve undeveloped areas in

5 their natural condition, and to allow for uses that do not

conflict with the regulations governing activities in the CCNS.

36 C.F.R. § 27.3(a)-(b). The board further considered the broad

purpose of the CCNS "to preserve the seashore character of the

[NSP] by prohibiting significant environmental changes."

Finally, the board relied on the stated objective of zoning

regulation within the CCNS, and therefore the NSP, "to preserve

the seashore character of the area by appropriate restrictions

or prohibitions upon the . . . cutting of timber. . . or other

uses which would detract from the natural or traditional

seashore scene." 36 C.F.R. § 27.3(d).

We agree with the motion judge that the board's

interpretation of the term "timber" was well reasoned, supported

by facts and the language of the bylaw, and consistent with the

regulations governing the activities of the NSP and the CCNS.

See Pinecroft, 101 Mass. App. Ct. at 128. On the other hand,

the interpretation of "timber" urged by the plaintiff would

permit the vast majority of trees in the NSP to be clear cut

without restriction simply because they are not suitable for

commercial use, which would undermine the express objectives of

the NSP. We therefore conclude that there was a rational basis

for the board to affirm the first order based on its

6 determination that the word "timber" as used in section 6.9

included the scrub pine trees removed by the plaintiff.

3. Requirement of a special permit. In relevant part,

bylaw section 8.2, "Permits Required," provides that "no use of

land . . . shall be begun or changed without a permit having

been issued." Bylaw section 6.1.1 specifically allows for the

"alteration or extension" of a nonconforming cottage colony use

by "special permit" if the use is limited to the "parcels

employed at the time the use was made non-conforming." The

process for obtaining such a special permit is laid out in bylaw

section 8.4.2. Within the NSP, special permits are subject to

additional criteria in bylaw section 6.24, including a

requirement that "landscape shall be preserved in its natural

state insofar as practical."

The plaintiff argues that private parking was a permitted

land use in all Wellfleet zoning districts and his tree clearing

to create additional parking for his cottage colony was an

accessory to a preexisting nonconforming use of his property and

thus did not require a permit.2 The board did not dispute that

2 We disagree with the plaintiff's contention that the judge erroneously framed the issue as "whether cutting trees was an extension of a nonconforming use." The judge's decision stated, "The question is whether cutting down trees to create additional parking and a driveway constitutes an alteration or extension of a nonconforming cottage colony use under Section

7 the plaintiff's cottage colony was a preexisting nonconforming

use of land in the NSP and thereby exempt from the bylaw's

prohibition against cottage colonies. See G. L. c. 40A, § 6.

The board also agreed with the plaintiff that private parking

was a permitted use of any real property in the town, and

private parking for the cottage colony was an allowed accessory

use of the plaintiff's property. However, as the board has

noted, without information about the plaintiff's plan it was

"impossible" for it to weigh whether the additional parking and

driveway on the property would be incidental to the permitted

cottage colony use or an expansion requiring a permit.

The expansion of use of a property that has a preexisting

nonconforming use is not inherently an expansion of the

nonconformity. See Maselbas v. Zoning Bd. of Appeals of North

Attleborough, 45 Mass. App. Ct. 54, 56-57 (1998) (addition of

detached garage not impermissible extension of preexisting

nonconforming two-family residence where new structure did not

expand home's footprint or extend its nonconforming use).

Whether the plaintiff's creation of new parking and a driveway

in this case "increase[ed] the nonconforming nature" of his

existing cottage colony and allowed parking, and thus required a

6.1.1" (emphasis added). In any event, we review the board's decision de novo.

8 special permit is a fact-driven inquiry. See Henry v. Board of

Appeals of Dunstable, 418 Mass. 841, 844-845 (1994) (determining

whether activity was incidental to permitted use is fact-

dependent inquiry comparing net effect of incidental use to

primary use and evaluating reasonableness of relationship

between incidental and primary uses). The board could not make

that factual determination unless the plaintiff provided

information through the permit application process about the

number, nature, and extent of any additional parking spaces he

sought to create by cutting down trees on his property. We thus

conclude that the board's decision to affirm the second order

was not arbitrary or capricious to the extent it required the

plaintiff to apply for a permit as required by the process set

9 out in the bylaws.3 See Stevens v. Zoning Bd. of Appeals of

Bourne, 97 Mass. App. Ct. 713, 717 (2020).

Judgment affirmed.

By the Court (Grant, Brennan & Smyth, JJ.4),

Clerk

Entered: December 4, 2025.

3 We agree with the judge, and neither party argues to the contrary on appeal, that it was error for the board to find that the plaintiff's cottage colony already had adequate parking and that his effort to create additional parking and a driveway was forbidden because "it is not compatible with the National Seashore Zoning Standards, [36 C.F.R. § 27.1(b)(1) and § 27.3]."

4 The panelists are listed in order of seniority.