Opinion
15-P-1178
07-29-2016
JOHN C. POWERS & another, trustees v. FALMOUTH ZONING BOARD OF APPEALS & another.
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
On June 7, 2012, the Falmouth zoning board of appeals (board) issued a special permit to defendant Johnson Homes, Inc. (developer), to construct ten units of housing in Falmouth. The trustees of the real estate trust that owns abutting land (collectively, the abutter) appealed the special permit pursuant to G. L. c. 40A, § 17. In the same complaint, they also sought a declaration that the rezoning under which the special permit was issued amounted to illegal "spot zoning." See Schertzer v. Somerville, 345 Mass. 747, 752 (1963). Through a combination of rulings on summary judgment and a trial, a Land Court judge affirmed the issuance of the special permit and rejected the spot zoning claim. We affirm.
The spot zoning claim and a portion of the appeal of the issuance of the special permit (including the legal issue now raised on appeal) were resolved on summary judgment. The remainder of the appeal of the special permit was resolved at trial.
Background. The proposed development involves two adjacent lots in a mixed use area of Falmouth. The lots, known as lot 8 and lot 9, both have frontage on County Road, a main thoroughfare. At the time the special permit application was being considered, five commercial condominium units already had been built on lot 8, which is 1.51 acres in size. Lot 9, which is 1.1 acres in size, was vacant. Prior to the development of lot 8 into commercial condominiums, the two lots were held by separate -- but apparently related -- real estate trusts.
Lot 8 was held by Francis P. Bagarella and Carol A. Bagarella, as trustees of the Nye's Park Professional Offices Trust, while lot 9 was held by Francis P. Bagarella of the Pharmacy Realty Trust.
At all relevant times, lot 8 was included in the "business 3" (B-3) zoning district. Most of lot 9 had been in a "residential B" district that allowed only semidetached and two-family dwellings, but in 2007, a town meeting vote reconfigured the boundary of the B-3 district to include most of lot 9.
The shape of lot 9 has been described as "pipe-stemmed," with the stem of the pipe providing the frontage on County Road. Prior to the rezoning, only the stem portion was included in the B-3 district. After the rezoning, the only part of lot 9 still zoned for semidetached or two-family residential use was a twenty-five foot wide buffer zone bordering the abutter's land.
Multifamily housing is not allowed in a residential B district, but is allowed in a B-3 district by special permit. Under the zoning by-law, at most six residential units can be constructed per acre. Under the developer's proposal, all ten of the proposed units would be built on what is now lot 9. As a result, if lot 9 were considered in isolation, the developer's proposal would exceed the six units per acre density requirement. In order to bring its proposal into compliance, the developer proposed to merge the two lots into one, and to have the existing commercial development and the proposed residential development treated as a single project. If considered in that light, the project would have fifteen total units (five commercial and ten residential) on 2.62 acres, which, the developer argued would satisfy the density requirement.
After conducting a public hearing over multiple dates, the board unanimously approved the special permit with conditions. With regard to the density requirement, the board accepted the developer's argument about treating the existing office development and proposed housing development as a single project, but conditioned its grant on the two lots formally being merged prior to the developer obtaining a building permit.
By the time of trial, the two lots had not formally been merged, but the developer had taken some steps to consolidate ownership and control. Specifically, as of December 13, 2013, a new entity known as Nye's Park, LLC, acquired title to lot 9 and to four of the five condominium units on lot 8. The new entity also became manager of the Lot 8 Nye's Park Condominium Association.
The judge ruled in favor of the developer on summary judgment as to both the spot zoning claim and the portion of the special permit appeal involving the density issue. Following trial on the remaining issues, the judge upheld the issuance of the special permit and entered judgment in the developer's favor. He ruled that:
"[T]he [b]oard sufficiently considered all ten factors listed in [the relevant section of the zoning by-law] and reasonably concluded that the adverse effects of the proposed development will not outweigh its benefits to North Falmouth. . . . The facts I have found in this case support the conclusion that the development will be in harmony with the general purpose and intent of the Falmouth zoning bylaw. Nothing in the record, on the facts I have found, would indicate that the [b]oard's determination was arbitrary, capricious, or legally untenable."The judge underscored the need -- recognized by the town -- for additional year-round, rental units.
The judge found that the proposed development was "in harmony with the [l]ocal [p]lan . . . . [which] states that 'housing is a critical need in town, for the younger workforce and the elderly, at, or below the median income . . . . [and that it] makes a genuine contribution toward solving this problem."
Discussion. The abutter makes two discrete arguments on appeal: (1) that the judge erred in concluding that the 2007 zoning amendment did not constitute illegal "spot zoning," and (2) that the judge erred in affirming the issuance of the special permit in the face of the zoning by-law's six units per acre density requirement. We address these in order.
Spot zoning. As the abutter acknowledges, one claiming that a zoning amendment, a legislative act, amounts to "spot zoning" faces a heavy burden. See Van Renselaar v. Springfield, 58 Mass. App. Ct. 104, 108 (2003) ("every presumption is to be made in favor of the . . . validity" of a zoning amendment). To prevail on a spot zoning claim, "the challenger must prove by a preponderance of the evidence that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare." Johnson v. Edgartown, 425 Mass. 117, 121 (1997), citing Sturges v. Chilmark, 380 Mass. 246, 256 (1980). "[T]he party challenging the amendment has the burden of proving 'facts which compel a conclusion that the question whether the amendment falls within the enabling statute is not even fairly debatable.'" Van Renselaar v. Springfield, supra.
The developer presses no argument that the challenge to the rezoning was untimely, and the board did not participate in this appeal. We do not consider the timeliness question. The developer does argue that the abutter lacks standing even though it is a direct abutter to the development and raised density concerns regarding the project. See 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700-705 (2012) (abutter has a presumption of standing, such that "the initial burden of going forward with evidence" lies with the adverse party). See also id. at 704-705, citing Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8, 11-12 (2009) (density concerns are clearly the type of problem meant to be addressed by zoning laws). In any event, we need not resolve that question. See Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 & n.12 (2013) (standing need not be addressed "[w]here the merits have been fully briefed and the question of standing is not outcome determinative"), citing Boston Gas Co. v. Department of Pub. Util., 368 Mass. 780, 805 (1975).
We agree with the judge that the abutter here, as a matter of law, cannot meet its formidable burden. Parcel 9, while currently vacant, lies in a mixed use area along one of the town's main roads. The rezoning moved the boundary of the B-3 district slightly to the east so that lot 9, like other lots with frontage on County Road, is subject to B-3 zoning. These circumstances are comparable to those in which claims of spot zoning have been rejected, and distinguishable from those in which such claims have been accepted. Compare Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 249 (1943) (one lot improperly singled out to become business district "in the vicinity of a long-established residential area"), with Sullivan v. Acton, 38 Mass. App. Ct. 113, 115-116 (1995) (undeveloped, rezoned locus was result of "long-range study and recommendations by the planning board" rather than spot zoning).
The fact that the zoning amendment may benefit primarily, or even solely, one owner does not render it invalid. See W.R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559, 569 (2002). Nor can the abutter show that the rezoning -- also a legislative act -- was somehow invalid for lack of planning. In fact, the rezoning proposal went to town meeting only after the matter was reviewed by the town planning board, which concluded that the proposal "made sense" and that "this site [is] suitable for an extension of the existing Business 3 Zone." We note that, although the spot zoning claim was resolved on summary judgment, the evidence adduced at trial demonstrated that the project -- allowed by the rezoning -- was in harmony with the town's planning goals. See note 7, supra.
In supporting the rezoning, the planning board made it clear that it was not relying on the developer's contemporaneously expressed willingness to commit to not building multi-family housing at the site.
Density requirement. The abutter's appeal of the issuance of the special permit is limited to the density issue. We are not unsympathetic to the abutter's characterization of the proposed housing development as comprising ten units on a 1.1 acre parcel. However, we are mindful that the board's decision can be overturned only if it is "based on a legally untenable ground or [is] unreasonable, whimsical, capricious or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72 (2003), quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). The local decision must stand if the facts found by the court support any rational basis for it. Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 74. With this standard of review in mind, we conclude that there was no legal impediment to the board's ability to consider the proposed housing as part of the development of the larger parcel that would be formed once lots 8 and 9 were merged.
In its brief, the abutter separately claimed error in the board's approval of the special permit even though the lots had not yet been merged. At oral argument, the abutter abandoned this timing argument. In any event, our cases have long recognized the authority of a zoning board to "grant a special permit subject to later satisfaction of the conditions imposed which stated sufficiently definite standards by which to measure compliance." Balas v. Board of Appeals of Plymouth, 13 Mass. App. Ct. 995, 996 (1982). However, although the developer has taken steps to consolidate its ownership and control of the two lots, it does not claim that it yet has satisfied the merger condition set by the board. Rather, it persuasively argues that such issues are not yet ripe.
That leaves the question of whether the board erred in how it applied the density requirement to that larger parcel. As the judge recognized, the by-law does not expressly address how the density requirement should be measured where a parcel includes both residential and commercial units. The judge concluded that the board reasonably could treat each commercial unit as equivalent to a residential unit, meaning that the overall density of the combined development could not exceed six units per acre (fifteen units for the two and one-half acre parcel). We discern no error in that ruling. See Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453, 460 (2006) (where by-law is silent or ambiguous, local board's interpretation of it is entitled to deference).
Judgment affirmed.
By the Court (Cohen, Milkey & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 29, 2016.