Opinion
16-P-669
04-10-2017
Jack SAADE v. TOWN OF MILTON& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs (abutters) own land in Milton that abuts a parcel of approximately nine acres on which defendant-intervener Milton NRC, LLC (the developer), plans to build a multifamily residential development. The developer has a obtained a special permit to construct that project. That special permit was issued pursuant to a "Planned Unit Townhouse Development" (PUTD) by-law adopted by the defendant town of Milton in 2014 and approved by the Attorney General in 2015. In their action filed in Land Court, the abutters sought a declaration that the PUTD by-law amounted to illegal "spot zoning." See Schertzer v. Somerville, 345 Mass. 747, 752 (1963). On cross motions for summary judgment, a Land Court judge ruled in the defendants' favor in a thoughtful and comprehensive memorandum of decision. The judge also denied the abutters' subsequent motion for relief from judgment under Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974). The abutters filed a timely notice of appeal. For substantially the same reasons cited by the motion judge, we affirm.
The original named plaintiffs, Jack Saade and Qi He, are the record owners of a parcel that abuts the land that is the subject of this proceeding. Qi He's claims, identical to Saade's, were dismissed when she failed to appear herself or through an attorney at the case management conference. (Saade and Qi He have litigated the case pro se.) Summary judgment was later allowed against Saade. Although Qi He joined in the notice of appeal filed after the entry of final judgment, and purports to join in Saade's brief, she is not a party before us because she failed to perfect entry of her appeal pursuant to Mass.R.A.P. 10, as amended, 430 Mass. 1605 (1999). However, nothing of substance results from her absence; as we discuss below, summary judgment was proper (and we would not have reached the propriety of Qi He's dismissal). For convenience we discuss the abutters as if both were properly before us in this appeal.
We also note that the complaint purportedly also was brought on behalf of a number of unidentified "John Doe" parties. As the Land Court judge observed, even if Saade could have represented other such parties (which, as a nonattorney, he could not), "property rights claims of this nature cannot be asserted on behalf of unidentified John and Jane Does."
Although the complaint was drafted so as to encompass other claims, the abutters overtly abandoned such claims during the course of the Land Court proceedings (as the judge specifically noted). The only issue before us is the spot zoning claim. Moreover, any contentions made in their appellate brief with regard to any additional issues do not rise to the level of adequate appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
One claiming that a zoning amendment, a legislative action, amounts to spot zoning faces a heavy burden. See Van Renselaar v. Springfield, 58 Mass. App. Ct. 104, 108 (2003) ("[E]very presumption is to be made in favor of the ... validity" of a zoning amendment [quotation omitted] ). 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, quoting from Crall v. Leominster, 362 Mass. 95, 103 (1972).
We agree with the judge that the abutters here, as a matter of law, cannot meet their formidable burden. The PUTD by-law creates an overlay district that, through a special permit process, allows for more dense residential development than otherwise would be allowed in a residential district. It applies to any parcel (including combinations of lots) in a residential district that meets certain specified criteria. The summary judgment record establishes that six such parcels currently meet those criteria, and that additional parcels could qualify if a developer acquired and combined separate existing lots for this purpose. The abutters' factual premise that the by-law effectively singles out the developer's parcel for favorable zoning treatment is contradicted on the record before us. Contrast Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 249 (1943) (one lot improperly singled out to become industrial district where it was "in the vicinity of a long-established residential area" and "surrounded on all sides for a substantial distance by an area zoned for single residences").
In their brief, the abutters now claim that, as a matter of fact, the other five parcels do not qualify, but in the summary judgment process, they did not properly controvert the defendants' attestations that they did.
Moreover, even had the abutters demonstrated that only the developer's parcel could make use of the by-law, that alone would not mean that they would prevail. See W.R. Grace & Co.Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559, 569 (2002) (fact that a zoning amendment may benefit primarily, or even solely, one owner does not by itself render it invalid as spot zoning). Both by its expressly stated purpose and design, the by-law serves several public interest goals, including providing a greater mix of housing options (including more affordable housing), preservation of historic structures, and various environment-related goals (dedicated open space and buffering). Where, as here, "amendments have a substantive relationship to the promotion of the public welfare, the amendments are not, by definition, spot zoning, irrespective of the subjective purposes of the sponsors." Id. at 570. The fact that the by-law was enacted concurrently with the town's comprehensive planning efforts and is consistent with the planning goals that emerged from that process adds further support for its validity. See Sullivan v. Acton, 38 Mass. App. Ct. 113, 116 (1995) (rezoning of undeveloped locus was result of "long-range study and recommendations by the planning board" rather than spot zoning).
Nor is there any merit in the abutters' argument that the by-law violates the requirement set forth in G. L. c. 40A, § 4, inserted by St. 1975, c. 808, § 3, that "[a]ny ordinance or bylaw which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." The PUTD by-law applies throughout the district to any parcels that meet the specified criteria, and it does not treat identically situated parcels in the same area differently. Nothing more is required. The abutters' interpretation of the uniformity requirement would invalidate the whole idea of an overlay district, a concept that consistently has survived appellate scrutiny. See, e.g., KCI Mgmt., Inc. v. Board of Appeal of Boston, 54 Mass. App. Ct. 254, 263 (2002) ; Andrews v. Amherst, 68 Mass. App. Ct. 365, 375 (2007). See also Bobrowski, Massachusetts Land Use & Planning Law § 3.04[C], at 92 (3d ed. 2011) ("It is worth noting that an Appellate Court has never invalidated an overlay district as spot or reverse spot zoning").
Judgment affirmed.
Order denying motion for relief from judgment affirmed.