Opinion
15-P-1548
02-03-2017
PAULINI LOAM, LLC v. ZONING BOARD OF APPEALS OF FRAMINGHAM & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal from the Land Court's amended judgment that vacated defendant zoning board of appeals of Framingham's (ZBA) decision denying a building permit, and that declared that the plaintiff is allowed by right, pursuant to the town's zoning by-law, to build a concrete plant on its property. The defendants argue: (1) that the judge erred by vacating the ZBA's decision and declaring that the plaintiff's proposal to build a concrete plant is allowed by right under the town's zoning by-law; (2) that the judge erred by allowing the plaintiff to present more information about its proposal than what was provided in its original application to the building inspector; and (3) that the judge erred in entering a declaration that the eight-year zoning freeze period be tolled during the pendency of this litigation. We affirm.
Standard of review . We defer to the factual findings of the trial judge unless they are clearly erroneous, Grady v. Zoning Bd. of Appeals of Peabody , 465 Mass. 725, 728 (2013), and review the judge's determinations of law, including interpretations of zoning by-laws, de novo. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley , 461 Mass. 469, 474 (2012).
Discussion . 1. Building permit allowed by right . The defendants argue that the judge erred by vacating the ZBA decision and erred by declaring that the plaintiff's proposal to build a concrete plant is allowed by right under the town's zoning by-law. Framingham's zoning by-law section III.G.l.c. is applicable to general manufacturing districts and allows by right, "[m]anufacturing of any description utilizing processes free from neighborhood disturbing odors and/or agencies." By-law section III.G.2., also applicable to general manufacturing districts, requires a special permit for any uses which would "be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features, or because hazardous to the community on account of fire or explosion or any other cause." Read together, it follows that an applicant would not need a special permit pursuant to section III.G.2 if their proposed use would not be "offensive" or "injurious."
After interpreting the by-law, the issue becomes strictly a fact specific inquiry on whether the concrete plant would be offensive or injurious to the surrounding community, thus requiring a special permit, or utilizing processes free from neighborhood disturbing odors and/or agencies, and thus allowed by right. In reaching his conclusion that the plaintiff's permit is allowed by right, the judge thoroughly analyzed expert testimony from both parties regarding the proposed facility's impact on air quality, noise, traffic, and storm water management, as well as the mitigating steps the plaintiff has followed to comply with the defendants' concerns.
The defendants disagree with the case-by-case approach that the trial judge used and argue that concrete plants fall within a specific category of facilities that always require a special permit. We disagree and conclude that a fact specific inquiry was necessary to determine whether the permit should be granted by right or only through a special permit. See Banquer Realty Co . v. Acting Bldg. Commissioner of Boston , 389 Mass. 565, 575–576 (1983). If the town of Framingham had intended to distinguish between concrete plants and mulch and loam facilities , for zoning purposes, it could have done so by the use of precise language in the by-law. See Framingham Clinic, Inc . v. Zoning Bd. of Appeals of Framingham , 382 Mass. 283, 296 (1981). The judge's findings supported the conclusion that the plaintiff is allowed, by right, to build the proposed facility. There was no error.
At the time of trial and since the 1960s, the property was leased to a mulch and landscaping company that used the facility for processing, storing, and distributing mulch, loam, and other landscaping material.
The defendants also argue that the judge erred by declaring that the plaintiff was allowed by right to build a concrete plant because the plaintiff's application to the ZBA did not comply with the town's setback requirements. We have carefully considered the claim and deem it to be without merit and not warranting discussion. See Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
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2. Exhaustion of administrative remedies . The defendants argue that the plaintiff's claim should have been dismissed because the plaintiff did not exhaust its administrative remedies before filing this action at the Land Court. The defendants contend that the plaintiff presented more information about its proposal at trial than what was included in its permit application to the building inspector and the ZBA.
Generally, "in the absence of statutory directive to the contrary, administrative remedies should be exhausted before resort to the courts." Banquer Realty Co ., 389 Mass. at 572 (1983). Here, the judge found that the plaintiff provided more information than what was contained in its initial application, however, it was not materially different than what was available to the ZBA during its review.
Exhaustion of administrative remedies is not a prerequisite to bringing a claim under G. L. c. 240, § 14A, as amended by St. 1977, c. 829, § 14. "The right to file and prosecute such a petition [under § 14A ] shall not be affected by the fact that no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for ...." Ibid . See Gamsey v. Building Inspector of Chatham , 28 Mass. App. Ct. 614, 616 (1990) (" ‘In the case of G. L. c. 240, § 14A, the Legislature has determined that resort to local zoning procedures is not a necessary prerequisite to obtaining judicial relief.’ [Banquer Realty Co ., supra at 573]"). The plaintiff is seeking a determination as to the extent the local zoning by-law affects its right to use its property as a concrete plant. At trial, the plaintiff submitted updated studies about the impact that the concrete plant would have on the community, and made stipulations regarding their hours of operation and contested ordinance issues. The plaintiff's new information may be considered under the G. L. c. 240, § 14A, claim. Judicial relief that would otherwise be available under the statutory language of G. L. c. 240, § 14A, without exhaustion of administrative remedies is not "precluded once a plaintiff has applied for a permit but has been denied." Banquer Realty Co ., 389 Mass. at 573.
3. Tolling freeze . The defendants argue that G. L. c. 40A, § 6, has a tolling provision that only applies when "any lot shown on a plan endorsed by the planning board is the subject matter of any appeal or any litigation" and that the subject matter of litigation here is under G. L. c. 40A, § 17.
"The purpose of the statutory zoning freeze ... is to protect landowners from the practice in some communities of adopting onerous amendments to the zoning by-law after submission of a preliminary plan which is opposed by segments within the community." Heritage Park Dev. Corp . v. Southbridge , 424 Mass. 71, 75–76 (1997) (quotation omitted). In Massachusetts Broken Stone Co . v. Weston , 430 Mass. 637, 640 (2000), the Supreme Judicial Court explained that the eight year zoning freeze provided by G. L. c. 40A, § 6, applies to the entirety of the land shown on the plan, not to the particular subdivision or subdivision lots. The eight year zoning freeze was intended by the Legislature to "afford broad protection to developers." Heritage Park Dev. Corp . 424 Mass. at 76. We conclude that the zoning freeze protections defined in Massachusetts Broken Stone Co . are applicable in the present case and the failure to toll the zoning freeze would frustrate the purpose of the statute.
4. Motion to strike . Finally, the defendants argue that the judge erred by effectively denying the defendants' motion to strike or in the alternative reopen evidence. The denial of the defendants' motion allowed the plaintiff to request a declaration under G. L. c. 40A, § 6, in its posttrial memorandum, which was later granted. The judge acted within his discretion in denying the defendants' motion. See Clark v. Leisure Woods Estates, Inc ., 89 Mass. App. Ct. 87, 95-96 (2016). There was no error.
Amended judgment affirmed .