Opinion
12-P-269
12-18-2012
ROUTE 16 LAND DEVELOPMENT CORP. & another v. ZONING BOARD OF APPEALS of MILFORD & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment after a bench trial in which a judge of the Superior Court found and ruled for the defendants. The case arises from the denial by the defendants of the plaintiffs' application for a special permit authorizing the plaintiffs' operation of an adult entertainment enterprise on their premises. In affirming the denial of the plaintiffs' application, the judge ruled that (1) the plaintiffs' constitutional challenges to the town's by-law, enacted in 1996, were moot by operation of G. L. c. 40A, § 6, which excludes nonconforming adult uses from grandfather zoning protection, and (2) the 2008 amendments to the 1996 by-law satisfied constitutional standards and may properly be enforced by the defendants, despite the fact that the plaintiffs did not challenge the constitutionality of the 2008 amendments in their complaint. On appeal, the plaintiffs argue that the judge erred in ruling that their claims were moot, thereby entitling them to relief on the merits with respect to the 1996 by-law. Alternatively, the plaintiffs argue that even if their claims were moot, the judge nevertheless erred in ruling on the validity and applicability of the 2008 amendments. The plaintiffs are related entities: one owns the locus and the other operates a bar on the locus. The bar has been in operation since 2001. Seeking to offer additional entertainment for its patrons -- including exotic dancers, male and female impersonators, and strippers -- the plaintiffs applied for a special permit in February, 2008. Section 2.3 of the then applicable 1996 by-law required adult entertainment enterprises to obtain a special permit from the Milford zoning board of appeals (board), specifically providing: 'No Adult Entertainment Enterprise shall be located within the same block or within 400 feet of a residential zone, dwelling unit, school, place of worship, church, park, playground, youth center or another Adult Entertainment Enterprise.'
It is undisputed that the plaintiffs sought to operate an 'Adult Entertainment Enterprise' within the meaning of the by-law.
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Applying the 1996 by-law, the board denied the plaintiffs' application in March, 2008, based on the proximity of the locus to a residential zoning district and a planned school/day care center. The application, however, spurred the town to adopt certain amendments to the 1996 by-law in May, 2008, approximately one month following the plaintiffs' commencement of this action in the Superior Court. In consideration of the plaintiffs' claims, the judge applied the 2008 by-law, not its 1996 predecessor, effectively ruling that because the plaintiffs never had an adult entertainment special permit, they did not have prior lawful use or any zoning freeze protection when the by-law was amended in 2008. We agree.
The plaintiffs aver that G. L. c. 40A, § 6, allows local by-laws to deny grandfather protection to adult uses, but does not prohibit them from granting such protection. The 1996 by-law, they contend, granted grandfather protection to their proposed adult entertainment use because it did not specifically exclude such use from that protection. Even assuming that G. L. c. 40A, § 6, through reference to G. L. c. 40A, § 9A, permits local by-laws to confer grandfather status on adult entertainment uses, the by-law here cannot be so construed.
'[T]he plain and pertinent language of [G. L. c. 40A,] § 6 authorizes an exemption only for 'structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such . . . by-law . . . .' It follows from the clear language of § 6 that it applies only to those uses that were lawfully existing prior to the enactment of the zoning by-law or prior to enactment of a by-law amendment that rendered [the plaintiffs'] use noncompliant.' Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527, 536 (2004). See Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249, 256-257 (1990); Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 528-529 (1990). The last sentence of the first paragraph of G. L. c. 40A, § 6, however, excludes identified adult entertainment uses from the grandfathering provisions of that paragraph. And, as the board pointed out, grandfathering for adult entertainment uses is not constitutionally required. See David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1332 (11th Cir. 2000).
We disagree with the plaintiffs' contention that the 1996 by-law is more permissive than G. L. c. 40A, § 6. Unlike the statute, § 3.1 of the by-law does not distinguish adult entertainment uses from other uses. The absence of language denying grandfather protection to adult entertainment uses from the by-law does not in turn avail the plaintiffs of the benefits of that status. See, e.g., Bruno, supra at 535-537. Section 3.1 of the 1996 by-law provides as follows: 'The lawful use of any structure or land existing at the time of the enactment or subsequent amendment of this By-Law may be continued although such structure or use does not conform with the provisions of this By-Law, subject to the following conditions and exceptions.' This by-law is not more permissive than the statute because we do not read the by-law's omission of language excepting adult entertainment uses from the grandfather protection as an implicit rejection of that statutory exception. Moreover, regardless of whether it was lawful, adult entertainment had not commenced at the plaintiffs' locus and was never an existing use on which the plaintiffs could rely at any relevant time.
Our view of the mootness issue is further informed and controlled by a pair of related cases. See D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 54 (lst Cir. 1999), cert. denied, 529 U.S. 1110 (2000) (deeming the plaintiff's Federal constitutional challenge to prior versions of a municipal zoning ordinance regulating adult entertainment moot as the dispute concerned the constitutionality of the then-effective ordinance, reasoning that 'even if we were to find the [prior] provisions unconstitutional, [the plaintiff] would not be entitled to any relief'); D.H.L. Assocs., Inc. v. Board of Selectmen of Tyngsborough, 64 Mass. App. Ct. 254, 258 (2005) (this court concluded that the same plaintiff's art. 16 of the Massachusetts Declaration of Rights challenge to the by-law was moot in light of G. L. c. 40A, § 6). Here, given the enactment of the 2008 amendment, the case had been moot for some time before trial.
We do not consider whether the 2008 by-law is enforceable against the plaintiffs since they have not applied for a special permit under said by-law. As no case or controversy was presented to the board or the court regarding whether this amended by-law applies to the plaintiffs, it was not appropriate for the judge to consider it on this record. See Highland Tap of Boston, Inc. v. Commissioner of Consumer Affairs & Licensing of Boston, 33 Mass. App. Ct. 559, 567 n.12 (1992) (electing not to decide State and Federal constitutional issues for the reasons, inter alia, that the issues had not been briefed by the plaintiff and the court neither knew what factual record may be developed nor if constitutional questions may be presented in the future). Therefore, we must vacate the judgment and remand for the entry of a new judgment dismissing the case as moot.
So ordered.
By the Court (Grasso, Fecteau & Agnes, JJ.),