SLV Bridgewater PO, LLC v. Town of Bridgewater

Opinion

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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. 2

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 3

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 fifty-

eight 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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 lodging-

house 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 11

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 12

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 three-

bedroom 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 lodging-

house 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). 13

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.