Opinion
18-P-1533
04-01-2020
INDIANHEAD REALTY, INC. v. ZONING BOARD OF APPEALS OF PLYMOUTH & Others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Indianhead Realty, Inc., sought a "zoning permit" for construction of an outdoor recreation facility which, as proposed, would first require excavation and removal of approximately 475,000 cubic yards of gravel over a two to three year period. The town of Plymouth's building commissioner denied the permit, concluding the plaintiff required a special permit pursuant to the local zoning bylaw (bylaw). Plymouth's zoning board of appeals (board) agreed and on appeal to the Land Court and following a trial, the judge entered judgment affirming the board's decision. Substantially for the reasons stated by the judge and the analysis in Old Colony Council-Boy Scouts of America v. Zoning Bd. of Appeals of Plymouth, 31 Mass. App. Ct. 46, 47-49 (1991) (Old Colony Council ), we affirm.
The judge found that under § 205-[5] of the zoning bylaw, a "zoning permit" is a prerequisite to a building permit and allows the town to ensure that all plans for uses or structures meet the requirements of the bylaw.
Background. For purposes of this appeal, the plaintiff adopted the judge's findings of fact. The judge found that, on property that already houses a recreational campground, the plaintiff proposed to construct a baseball field, multi-purpose recreational field, BMX park, parking lot, and a walking trail; all of which the plaintiff contended and the judge agreed, were permitted as of right in the rural residential zoning district in which the property was located. See bylaw § 205-40(E). The proposed earth removal component of the development plan would be conducted in three phases prior to the fourth phase of development -- the actual construction of the recreational facilities and walking path. The proposed fields, parking lot, and walking path were designed to cover 6.33 acres and a total of 11.79 acres would be excavated and graded to an average grade of forty-five feet. According to trial exhibit 3, the existing highest elevations on the property are approximately ninety feet. The excavation would remove 475,000 cubic feet of material over 2.1 to 2.8 years, depending on whether there are thirty or forty truck trips per day, and would generate between $655,500 and $997,500 in revenue for the plaintiff. The excavation would create a flat recreational area, but result in a bowl shape on the property. The interveners are abutters within three hundred feet of the property and in the same district.
The campground exists pursuant to a 1968 special permit issued for "trailer park" use. The campground occupies approximately forty-five acres; the remaining thirty-five acres will be dedicated to the proposed project. The record suggests there has been further subdivision of the property since the application for the zoning permit was submitted.
Because of the result we reach, we need not consider the interveners' argument that the proposed sports fields are not permitted as of right. We do note that the list of allowed uses in the rural residential zoning district includes "outdoor recreation, including play and sporting areas [and] nature study." Bylaw § 205-40(B)(1). Uses permitted by special permit subject to environmental design criteria include "[s]and and gravel quarries and similar extractive industries, subject to § 205-18." Bylaw § 205-40(D)(1).
The applicable provisions of the bylaw at issue here, entitled "Natural features conservation requirements," provided that removal of more than ten cubic yards of soil, gravel, or quarried stone for sale or use on a separate site is prohibited except, as pertinent here, "[w]hen incidental to and required in connection with the construction of an approved use or structure ... on the same site." See § 205-18(F)(1)(b). Section 205-18(F)(2) of the bylaw provides that "[i]n all cases except subdivisions the Building Commissioner shall determine whether the excavation of material is incidental to and required for an allowed use." Section 205-18(F)(3) provides that "the term[s] ‘incidental to and required’ shall be defined as only of the amount of material reasonably necessary to allow a use to be conducted or a structure or subdivision road to be constructed in compliance with the applicable legal requirements for such use, structure, or road." Here, the building commissioner denied the application, concluding that the proposed excavation of approximately 475,000 cubic yards of gravel required a special permit. See bylaw § 205-40(D)(1). On review, the board found that the proposed excavation was not reasonably necessary or incidental to construction of the proposed recreation area, and that the proposed use was a " ‘sand and gravel’ quarry" or "other extractive industry," which requires a special permit subject to § 205-18 of the bylaw.
The version of the bylaw contained in the record indicates that § 205-18(F) was last amended on April 4, 1988.
After trial, a judge of the Land Court concluded that the plaintiff's plan did not propose gravel removal in an amount reasonably necessary to allow the use to be constructed. The judge found, for example, that the plan depicts two site arrival points; more than one arrival point is not required; and eliminating one site arrival point would allow for a different configuration and substantially reduce the volume of material extracted. In addition, the judge found that, combined with other construction techniques, the amount of material removed could be reduced by as much as 375,000 cubic yards. The judge affirmed the decision of the board that the plaintiff's proposed project requires a special permit.
Discussion. It was the plaintiff's burden to demonstrate it was entitled to a zoning permit. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 297 (1981). Moreover, "the decision of a board cannot be disturbed unless it is based on a legally untenable ground or is based on an unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use regulation to the facts as found by the judge" (quotation and citations omitted). Wendy's Old Fashioned Hamburgers of N. Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374, 381-382 (2009).
On appeal, the plaintiff contends it demonstrated that its proposed earth removal is "reasonably necessary" and incidental to a permitted use. We rejected a similar argument in Old Colony Council, 31 Mass. App. Ct. at 47-48.
Indianhead Realty also argues the building commissioner's decision was "fatally flawed" because § 205-5(B)(2)(a) requires the building commissioner to submit copies of a zoning permit application plan to other town boards having jurisdiction. While that may be true should an application pass the building commissioner's threshold determination that the excavation of material is "incidental to and required for an allowed use," nothing in the bylaw required the building commissioner to obtain other boards' opinions before determining that the excavation requires a special permit because it is not incidental to and required for creation of an allowed use.
Old Colony Council also involved the town of Plymouth and a proposed plan to create a use permitted as of right (a cranberry bog), after removal of substantial amounts of earth (460,000 cubic yards). The purpose of the "Natural features conservation requirements" section of the bylaw then, as now, was to "prevent cumulative damage to landscape and topography and related valuable and non-renewable natural resources of the Town of Plymouth." Old Colony Council, 31 Mass. App. Ct. at 47. The bylaw then in effect provided that "[e]xcept when incidental to and reasonably required in connection with the construction of an approved use ... no removal for sale ... of soil, sand, gravel, or quarried stone in excess of ten (10) cubic yards shall be allowed except by special permit ...." Id. at 47-48. The plaintiff in Old Colony Council argued that "where a use is permitted as of right, no special permit is needed for the excavation necessary to prepare a site for that permitted use, regardless of the quantity of the earth materials to be removed." Id. at 48. Focusing our analysis on whether the proposed excavation was "incidental" to the proposed allowed use, we concluded that the proposed excavation was not minor or incidental after noting that the judge found that "[t]he net effect of the plaintiff's undertaking ... is the creation of a sand and gravel quarry in conjunction with creating a cranberry bog." Id. at 49. We reasoned that "[w]here ... the proposal involved the removal of 460,000 cubic yards of fill over a two and a half year period and an excavation which would provide substantial funds in excess of the cost of constructing the bog, the judge was warranted in upholding the board's conclusion that the excavation of material was not incidental to the construction and maintenance of a cranberry bog." Id.
Our analysis in Old Colony Council makes it quite clear that "incidental and required" in this context does not mean that an unlimited amount of material may be removed so long as the excavation can be connected to creation of an approved use. "Determining whether an activity is an ‘incidental’ use is a fact-dependent inquiry, which both compares the net effect of the incidental use to that of the primary use and evaluates the reasonableness of the relationship between the incidental and the permissible primary uses." Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 844 (1994). Here, the board permissibly concluded the proposed earth removal is not reasonably necessary or incidental to the allowed recreational use. There was no error in the judge's conclusion that removal of 475,000 cubic feet of earth over a two to three year period in order to create an allowed use without a special permit for the earth removal, does not fall within the exception, particularly in view of the evidence that the plan provided for two entry points when elimination of one entry point could result in a substantial reduction in the amount of material removed.
Even if, as the plaintiff suggests, the current bylaw's focus on the "reasonably necessary" component of the definition of "incidental and required" distinguishes this case from the bylaw we addressed in Old Colony Council, which we need not decide, we agree with the judge that the plaintiff did not demonstrate that the excavation proposed was of "only ... the amount of material reasonably necessary." The judge found that the plaintiff's engineer "was not asked to minimize the amount of [m]aterial to be excavated, and was not asked to keep any of the [m]aterial on the site."
The plaintiff also contends that the board and the judge imposed a more rigorous standard than "reasonably required" by applying a "minimum necessary" standard. We agree with the judge that the board's use of the phrase "minimum necessary" did not take away from its "other findings and reasoning laid out in the [d]ecision [demonstrating] it found the proposed excavation was not reasonably necessary" for construction of an allowed use. Moreover, the interpretation proffered by the plaintiff, in essence that any amount of earth removal necessary to create an allowed use is permissible, is entirely inconsistent with the stated purpose of the bylaw's "Natural features conservation requirements." In addition, it removes any assessment of reasonableness from consideration. The evidence presented and credited by the judge supported the judge's conclusion that other construction methods could substantially reduce the amount of earth removal necessary while retaining the elements of the plan and that the amount of earth removal proposed was not reasonably necessary for creation of the recreational facilities proposed.
Contrary to the plaintiff's suggestion, the town was not required to propose an alternative plan. Framingham Clinic, Inc., 382 Mass. at 297 (burden on applicant to prove entitlement to building permit). The plaintiff further argues that the bylaw prohibits a "cut and fill" method of development and the town's expert impermissibly suggested that method of development in order to reduce earth removal. It is true that the bylaw strongly discourages "cut and fill" in "all instances possible," but the bylaw does not prohibit it. Faced with a proposal to cut and remove 475,000 cubic yards of earth, the town could permissibly conclude, consistent with its bylaws, that "cut and fill" was permitted in this case.
In addition, we reject the plaintiff's perplexing argument that the bowl shape of the final development is consistent with the natural topography because it maintains the sides of the property -- ignoring completely the excavation of all the material between the sides of the property and the creation of the previously nonexistent bottom of the "bowl." The plaintiff also suggests the Americans with Disabilities Act (ADA) requirement of "at least one" accessible site arrival point, is tantamount to a "strong preference" for maximizing accessibility with more than one arrival point. The plaintiff cites no authority for this proposition and we find unavailing the plaintiff's attempt to refute the judge's ruling that the ADA requires only one accessible arrival point. The judge's findings are sufficient to support her conclusion that the proposed earth removal necessary to construct multiple entrances is not "reasonably necessary" to construct the proposed use. There was no error in the judge's conclusion that a special permit is required.
According to the interveners, the proposed second arrival point has no proposed parking lot, and requires travel along an old dirt road, climbing over a banking, and crossing a culvert, none of which are accessible to individuals with disabilities, before reaching the proposed footpath.
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Finally, we reject the plaintiff's argument that the judge's decision makes a use permitted as of right subject to special permit requirements. Earth removal is listed as a use that requires a special permit in the rural residential district. Where the use involved is as of right, but the development plan proposes earth removal that is so substantial it does not fall within an exception to applicable bylaws, the town may lawfully require a special permit for the earth removal component of the project. The town may regulate earth removal in its zoning ordinances and it has done so here. See Leominster Materials Corp. v. Board of Appeals of Leominster, 42 Mass. App. Ct. 458, 462 (1997).
Judgment affirmed.