MISC 07-339996

October 23, 2008


Trombly, J.


This action was commenced by plaintiff Ibrahim Elrihane on February 2, 2007, seeking, pursuant to G.L. c. 40A, §17, to reverse a decision of the defendant City Council of the City of Revere denying issuance of a special permit to use a certain parcel of real property located at 392 Revere Beach Parkway, Revere (Locus), as a used-car dealership. The present case arises out of an earlier case concerning the same parties and property: Land Court case number 04 MISC 298357.

In the earlier case, filed on April 15, 2004, plaintiff appealed from a decision of the City Council, denying issuance of a special permit to use the Locus as a used-car dealership. After some initial filings, no action was taken on the case until 2006. On August 18, 2006, the parties filed a Joint Motion for Remand. On August 24, 2006, this Court (Trombly, J.) allowed the motion and ordered the case remanded to the City Council for further hearing and findings. The Land Court docket reflects no action on the case following this Order.

The present action is plaintiff’s appeal of the City Council’s second denial of his application for special permit, issued pursuant to the previously issued Order of Remand. On April 29, 2008, plaintiff filed a motion for Summary Judgment. On May 30, 2008, defendants filed their own Motion for Summary Judgment. The motions were argued on July 24, 2008, and are the matters presently before the Court.

Based on the record, the Court finds the following facts:

Mr. Elrihane is the record owner of a parcel of land located at 392 Revere Beach Parkway, Revere. He purchased the Locus on May 30, 2002. The locus lies within a residential zoning district. Plaintiff uses the property as a gas station and automotive repair facility. The City has allowed the plaintiff to construct and operate the repair facility as a preexisting, nonconforming use.

Some time in 2002, the plaintiff filed an application with the City of Revere City Council for a special permit to extend the use of the Locus to include a used-car dealership. [Note 1] The City Council submitted the application to the Site Plan Review Committee and on November 19, 2003, this committee made certain recommendations in a Memorandum to the City Council, in the event that the Council decided to approve the application. On March 29, 2004, the City Council held a public hearing to consider the application and voted to deny it. On April 15, 2004, plaintiff appealed this decision to the Land Court in case number 04 MISC 298357. After some initial filings by both parties, no action took place on the case until 2006, when it was remanded at the request of the parties.

On May 22, 2006, while the first case was still on appeal in the Land Court, the City Council passed an ordinance imposing a one year moratorium on the issuance of Class II automotive sales [Note 2] licenses and on the use of land for Class II automotive sales purposes (Moratorium). Simultaneously, the City Council presented a proposed act to the Massachusetts Legislature to limit the number of Class II automotive sales licenses available in the City.

On August 18, 2006, the parties requested that the Land Court remand the then pending case to the City Council for further hearing and findings. On August 24, 2006, the Court ordered that the case be so remanded.

On December 31, 2006, the Massachusetts Legislature enacted the proposed act, limiting the number of Class II Licenses to thirty (Home Rule Act). At the time, the number of Class II Licenses issued by the City Licensing Board already exceeded thirty. On January 16, 2007, the City Council, after hearing the plaintiff’s application for special permit on remand, again denied it. The City Council submitted a record of its reasons for this decision. The reasons reference a memorandum of the City Solicitor prepared for the City Council. According to these documents, the decision was based on the finding that the Moratorium and Home Rule Act made the issue moot and on its conclusion that the City Council and the City Licensing Board no longer had authority to allow such use or issue such license, respectively.

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Anderson v. Liberty, 477 U.S. 242, 247-48 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Id. at 248. In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Id.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 3] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any…” Mass. R. Civ. P. 56(c).

After reviewing the record before me, I have determined, pursuant to Mass. R. Civ. P. 56(c), that there is no genuine issue of material fact, and that the case is, therefore, proper for summary judgment. Mass. R. Civ. P. 56(c).

Plaintiff presents several arguments against the validity of the City Council’s decision. Firstly, plaintiff does not believe that the Moratorium or the Home Rule Act strips the City Council of its authority to issue a special permit, even if such permitted use will not obtain a license from the licensing board. Plaintiff has never been granted the special permit to use the Locus as a used-car dealership, nor did he apply for a Class II License from the City Licensing Board on or before May 22, 2006. Under the terms of the Moratorium, no new Class II Licenses are to be issued for one year on applications made after May 22, 2006. The Moratorium further prohibits use permits for Class II automotive sales purposes for one year. This is made even more clear by the fact that the Moratorium amends the provision of the City’s Ordinances pertaining to Automotive Sales Class II. Under these amendments, such use is no longer allowed by right in the TED zoning district and special permits may no longer be issued in the PDD1 and HB districts for one year. It would be a contradiction if the Moratorium implicitly allowed the City Council to grant such a special permit to expand an already non-conforming use of a piece of property in a residential zoning district.

Further, although the Home Rule Act does not mirror the Moratorium in prohibiting use permits, the Moratorium was in effect at the time the City Council denied the plaintiffs application. Nonetheless, the Home Rule Act does limit the number of Class II Licenses that the City Licensing Board may issue to thirty. At the time, the number of outstanding licenses exceeded thirty. Thus, the City Licensing Board was effectively prohibited from issuing further Class II Licenses. The mere application for a special permit does not vest rights in the applicant for that potential permitted use. Caputo v. Board of Appeals, 330 Mass. 107 , 111 (1953); Spector v. Building Inspector of Milton, 250 Mass. 63 , 71 (1924); Winniker Realty Inc. v. Zoning Board of Appeals, 362 Mass. 869 (1972). Should the applicant obtain the requested special permit, the issuance does not relate back to the date of his or her application for the purpose of determining zoning requirements.

There is no question that the Home Rule Act’s limitation of Class II Licenses makes it impossible for the plaintiff to operate a used-car dealership on the Locus, at the present; even if the City Council had the authority to grant the special permit to plaintiff, the Home Rule Act would apply to deny his application for the necessary Class II License. Any decision by the City Council on the plaintiff’s application for such use is of no actual effect because no license may be obtained at the present time. Thus, the plaintiff’s application for a special permit for that use is moot, and the City Council correctly denied his application.

The plaintiff alleges that his application met every requirement, and thus, the City Council had no choice but to approve it. He further contends that pursuant to G.L. c. 40A, §6, because the City Council failed to make a finding that the requested use of the Locus as a used-car dealership was not substantially more detrimental to the neighborhood than the existing use, the Council implicitly found in its denial of the application that this requested use was not so substantially more detrimental. Under §6, the City Council has the discretion to deny application for special permits. G.L. c. 40A, §6. This discretion may be exercised within the bounds of the applicable ordinance or by-law, if any. In the present case, there is no suggestion that the City Council has violated the provisions of its guiding ordinance.

The plaintiff contends that the findings made by the City Council in denying his application are unrelated to the issues presented by the application and insufficient so as to invalidate the decision. However, as previously discussed, the City Council correctly found that the Moratorium and Home Rule Act made it impossible for the plaintiff to use the Locus as a used-car dealership. Assuming that the City Council is required by its ordinances to provide sufficient findings when rendering a decision on a special permit application, the Court finds that there are ample findings both in the City Council’s Reasons as well as in the Memorandum of the City Solicitor for the City Council and referenced in the Reasons. In these documents, the City Council found that the Moratorium and Home Rule Act applied to prevent plaintiff from obtaining the necessary license, even if the special permit were granted. In so finding, the City Council did not make an analysis or determination on the merits of the application, absent the Moratorium and Home Rule Act. Such a determination would have been of no consequence in reality and, accordingly, was a proper exercise of the council’s discretion.

Finally, the plaintiff suggests that the Moratorium and subsequent Home Rule Act are a violation of the Fourteenth Amendment of the U.S. Constitution, because they are arbitrary and capricious. It is sufficiently clear to this Court that there exists some rational basis for the statute limiting the number of used-car dealership in the City. In fact, the preamble to the Moratorium states that the purpose of the measure is public safety. The plaintiff has not met his burden of showing that the Moratorium and Home Rule Act do not have a rational basis, and the City Council’s decision must stand.


For the foregoing reasons, this Court concludes that the City Council’s Decision properly denies the plaintiff’s application for special use permit to use the Locus as a used-car dealership. This being a matter of law, the plaintiff’s Motion for Summary Judgment is hereby DENIED and the defendants’ Motion for Summary Judgment is ALLOWED.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.


Dated: October 23, 2008


[Note 1] The defendants correctly point out that in the first case, the plaintiff states in his Complaint that he made application for the special permit some time in 2002, but contradictorily states in the present Memorandum in Support of Summary Judgment that he made application on February 24, 2004. The date of application does not influence the legal outcome of this case; however, the Court finds that the application must have been made, at the very least, prior to the Site Plan Review Memorandum of November 19, 2003.

[Note 2] Class II automotive sales encompass used-car dealerships.

[Note 3] A motion for summary judgment can rest in whole or in part on facts set forth in the moving party’s pleadings if, but only if, they are conceded in the opposing party’s pleadings. Cmty. Nat’l Bank, 369 Mass. at 557, n.6. It may also rest on the allegations contained in the opposing party’s pleadings. G. L. c. 231, §87 (“in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them”).