Opinion
17-P-1177
04-17-2019
COTTON TREE SERVICE, INC., & another v. PLANNING BOARD OF WESTHAMPTON & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this case, we consider whether the motion of an abutter, Timothy Fondakowski, to intervene in the appeal of Cotton Tree Service, Inc., and Dodge Maple Grove Farm, LLC (collectively Cotton Tree), from the denial of a special permit to operate a sawmill, filed after a settlement agreement was approved by a Superior Court judge and judgment had entered, was correctly denied. The judgment essentially ordered the Westhampton planning board (board) to issue the special permit pursuant to the settlement agreement. For the reasons that follow, we reverse the order denying Fondakowski's motion to intervene.
Background. On December 13, 2013, Cotton Tree filed an application to the board for a special permit for property located on Northwest Road in Westhampton (property) to allow stockpiling, chipping, and sawing of logs, and the sale of sawmill products. On April 21, 2015, after public hearings on several dates between February 4, 2014, and March 10, 2015, the board voted to deny the application and filed a written decision denying the application on May 28, 2015. In denying the special permit, the board found, among other things, that "[t]he commercial nature of the business . . . including the use of large trucks at the property to deliver and pick up wood products processed at the property and the actual processing of wood at the property in a manner visible to abutters, was significant in scope" and "[t]he proposed use was inconsistent with the neighborhood and, as such, not in harmony with the residential surroundings and could not be sufficiently mitigated by conditions of approval." Cotton Tree appealed by filing a complaint in Superior Court against the board and the town clerk of Westhampton (sometimes referred to collectively as board), seeking an order that the special permit had been constructively approved because the board had not met the deadlines set forth in G. L. c. 40A, § 9, or, alternatively, an order that the board's denial was arbitrary and capricious, based upon "improper reasoning," and was a result of "negative treatment" because Cotton Tree was not a resident of the town. During the course of the litigation, the board and Cotton Tree settled the action through an agreement for judgment, which was approved by the judge as a judgment on April 3, 2017. The agreement for judgment was executed by Cotton Tree's attorney and the board's attorney.
According to the board's May 28 decision, § 6.23 of the Westhampton zoning bylaw requires "a vote of four of the five-member board . . . to grant a special permit." See G. L. c. 40A, § 9. The vote was two to approve and two to deny.
Pursuant to G. L. c. 40A, § 9, "[s]pecial permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law . . . ."
The agreement for judgment provided that the case would be remanded to the board for a public hearing pursuant to G. L. c. 40A, § 9, followed by issuance of a special permit in the form attached to the agreement for judgment to allow the operation of a sawmill on the property. The agreement for judgment further provided that should the board fail to issue a special permit within sixty days, "the Court [will] directly issu[e] the Special Permit . . . . In the event the Special Permit is issued by the Court, the parties shall file the Special Permit . . . with the Westhampton Town Clerk, and in accordance with G. L. c. 40A, § 9 (13th par.), notice of such filing shall forthwith be mailed to all parties in interest . . . and to any person who requested that notice be sent to him." Further, at the conclusion of the twenty-day appeal period under § 9, Cotton Tree was to record a copy of the judgment and special permit in the Hampshire County registry of deeds.
The form of special permit attached to the agreement for judgment included findings that "[a]lthough the commercial nature of the business, to process wood, including the use of large trucks at the Property to deliver and pick up wood products processed at the Property and the actual processing of wood at the Property is significant in scope, the Planning Board finds that the use can be sufficiently mitigated by conditions of approval." Conditions imposed by the agreed upon special permit included "installation of a 12-foot vertical structure to serve as a sound barrier" along with "[a] buffer strip of either fencing or plantings to visually screen the wood processing equipment" and limits on the hours wood processing equipment may run and the number of trucks that may enter or leave the property each month.
On remand, the four-member board held a public hearing on May 23, 2017, and voted two in favor and two opposed to the special permit; therefore, the special permit was denied again. Cotton Tree filed a motion on May 31, 2017, to issue the special permit in the form agreed to by the parties in the agreement for judgment. The judge allowed the motion on the same date. On June 15, 2017, the town issued notice that the special permit had been signed by a judge of the Superior Court and had entered as a judgment, and that the decision was on file with the town clerk. The notice provided that "[a]ggrieved parties may appeal the decision pursuant to G. L. c. 40A, § 17," by filing notice with the town clerk within twenty days.
Fondakowski's emergency motion to intervene in the Superior Court action was entered on June 30, 2017. (The docket contains a notation that the motion to intervene was "received by fax on 6/27/2017.") Fondakowski stated in the motion that the special permit authorizes "wood chipping, stump grinding, band sawing and other wood processing equipment to operate Tuesday through Friday during the hours of 9:00 a.m. to 4:00 p.m." and allows 120 round-trip truck entries, not including an unlimited number of pick-up trucks. He contended that as an abutter, he will suffer loss of use and quiet enjoyment, which "will severely and adversely impact the value of [his] property." He asserted that the board's decision to settle the case and grant the special permit means that his "interests have [not] been adequately represented in this case."
The judge denied the motion to intervene on the ground that the decision on appeal before him involved a denial of a special permit "and therefore the abutters were not aggrieved by that decision." Fondakowski's motion for reconsideration also was denied.
Discussion. 1. Appeals pursuant to G. L. c. 40A, § 17 . Persons aggrieved by a decision of the special permit granting authority, here the board, may appeal to the Superior Court or Land Court "by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk . . . . The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require." G. L. c. 40A, § 17. "Massachusetts courts have long declined to construe the statutory language 'make such other decree as justice and equity may require,' G. L. c. 40A, § 17, as permitting a reviewing court to 'invade the whole area of administrative decision'" (citation omitted). Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 n.21 (2009). "In the ordinary course, a reviewing judge is reluctant to order a board to implement particular relief, such as to issue a modified special permit and variance." Id. at 387. It is only in the unusual case where remand would be "futile or would [merely] postpone an inevitable result," that "an order of particular relief may be appropriate." Id. at 388. Thus, it is the rare case that a judge orders a special permit to be granted.
It has long been held that persons opposing a special permit that was denied by the local board are not "persons aggrieved" and may not appeal pursuant to G. L. c. 40A, § 17, because "far from being aggrieved by the decision of the board, they were presumably benefited by it." Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 18 Mass. App. Ct. 632, 633 (1984).
2. Motion to intervene. Fondakowski sought to intervene as of right pursuant to Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), or, alternatively, permissively pursuant to Mass. R. Civ. P. 24 (b), 365 Mass. 769 (1974). Rule 24 (a) provides that "[u]pon timely application anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
"In reviewing a motion to intervene, which involves questions of fact and of law, 'a judge has discretion in determining whether an intervening party has demonstrated facts that entitle him or her to intervention as of right, and we accordingly review the judge's factual findings for clear error.' Apart from the discretion to find facts, however, a judge's ruling on a motion to intervene as of right is a ruling of law, not a discretionary matter." Guardianship of B.V.G., 474 Mass. 315, 320 (2016), quoting Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). "[T]he judge should 'take all well-pleaded, nonconclusory allegations in the motion to intervene . . . and declarations supporting the motion as true absent sham, frivolity or other objections." Beacon Residential Mgt., LP v. R.P., 477 Mass. 749, 754 (2017), quoting Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).
3. Analysis. Here, the judge did not make findings of fact concerning the adequacy of Fondakowski's claim of entitlement to intervene. Nor did he comment on the basis for Fondakowski's motion -- the board's settlement of the case in a manner that required the issuance of the special permit, notwithstanding the board's vote to deny it. Instead, he noted that Fondakowski sought to intervene in Cotton Tree's appeal from the board's denial of a special permit, and ruled that Fondakowski was therefore not aggrieved, citing Berkshire Power Dev., Inc. v. Zoning Bd. of Appeals of Agawam, 43 Mass. App. Ct. 828, 831 (1997) (Berkshire).
In Berkshire, a developer appealed from the denial of a special permit application, pursuant to c. 40A, § 17. In that case, the board's vote of two in favor and one opposed constituted a denial since a unanimous vote was required for special permits. See G. L. c. 40A, § 9 (unanimous vote required to issue special permit by three-member board). On appeal to the Superior Court, the judge determined that no special permit was required and that therefore the board's majority vote actually constituted an approval of the application. Berkshire, 43 Mass. App. Ct. at 831. The judge purported to "affirm" the board's approval of the application, which had in fact been denied, and judgment was entered accordingly. The board did not appeal from the judgment and instead entered into a settlement agreement with the developer. Id. Subsequently, the judge allowed the abutters' motion to intervene, reasoning that "motions to intervene after judgment, while seldom granted, may be allowed 'if the proposed intervener demonstrates a strong justification.'" Id., quoting Cruz Mgmt. Co. v. Thomas, 417 Mass. 782,785 (1994). The judge found that "the newly developed 'inadequate representation' of the interests of the abutters," among other things, justified allowance of the motion to intervene. Id. at 831-832. While the propriety of the order granting the motion to intervene was not an issue before this court in the Berkshire case, we think the judge's reasoning as recited in Berkshire is compelling. "As we stated in McDonnell v. Quirk, 22 Mass. App. Ct. 126, 133 (1986), concerning a motion for postjudgment intervention, '[i]f the underlying action takes an unexpected turn, we perceive no reason why the third party cannot intervene to protect its position.'" Johnson Turf & Golf. Mgt. v. Beverly, 60 Mass. App. Ct. 386, 390 (2004).
Granting the motion to intervene is compelled in the circumstances of this case where the agreement for judgment approved by the judge both predestined the outcome of a public hearing on remand, caused the board's actual decision (denying the special permit) resulting from the public hearing to be disregarded, and placed the court-ordered special permit beyond the scope of any judicial review under § 17. We conclude that in these circumstances, accepting Fondakowski's assertions as true for purposes of this motion, he was entitled to intervene as of right. See Beacon Residential Mgt., LP, 477 Mass. at 754.
The board argues that the motion to intervene was untimely. The judge did not reach this issue and the record sheds very little light on when Fondakowski learned of the terms of the agreement for judgment. Fondakowski's brief asserts he learned of the agreement for judgment at the public hearing on May 23, 2017. It is not clear whether he learned of the terms of the agreement for judgment or its impact on the public hearing and the board's decision on remand at that time. As of May 23, he may well have believed that the May 23 public hearing was being conducted in the ordinary course and that the board's findings would reflect the evidence presented. The motion to intervene was filed within fifteen days of the date the town clerk distributed notice that the special permit had issued. We cannot say on this record and in these circumstances that the motion to intervene was untimely.
Fondakowski's request for appellate attorney's fees and costs is denied.
Conclusion. The order denying the motion to intervene is reversed, and a new order shall enter allowing the motion.
So ordered.
By the Court (Blake, Lemire & Singh, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 17, 2019.