FIRST CLASS, LLC and PERFECTION FENCE CORP. v. CARL RUSSELL, KAREN TEPER, JOSEPH KELLEHER, EDWIN PARSONS and MICHAEL HARRINGTON, as they are members of the TOWN OF MARSHFIELD ZONING BOARD OF APPEALS and TOWN OF MARSHFIELD

On November 28, 2006, First Class, LLC and Perfection Fence Corp. (Plaintiffs) initiated this action by filing a two-count complaint against the Town of Marshfield (Town) and the members of the Marshfield Zoning Board of Appeals (ZBA) involving Plaintiffs’ Marshfield property. [Note 1] In this action, Plaintiffs seek an annulment of the ZBA’s denial of Plaintiffs’ several applications for a second curb cut on the Property. Plaintiffs challenge the denial on several grounds, including an appeal of the variance denial under G. L. c. 40A, § 17 and four challenges to the validity of the Zoning Bylaw under G. L. c. 240, § 14A. On January 25, 2007, the Town filed its Answer.

In the presence of counsel and the parties, this court took a view of Plaintiffs’ property on March 24, 2008, and a one-day trial was held on April 3, 2008. At trial this court heard the testimony of Brian Skulsky, President of Perfection Fence Corp.; Todd Skulsky, Vice President of Perfection Fence Corp.; Ronald Mueler, a traffic engineer and Vice President of Greenman-Pederson, testifying on Plaintiffs’ behalf; Bruce Lee Jacobs, an environmental engineer at Hydro Analysis; Scott Horsley, an environmental scientist; and J. Michael Garvin, a traffic engineer, whose testimony was proffered by Defendants. Twenty-eight exhibits, including a stipulation of facts, were entered in evidence and both parties submitted post-trial briefs on June 9, 2008.

Based on all the evidence and reasonable inferences drawn therefrom, and observations from the view, this court finds the following material facts:

1. Plaintiff First Class, LLC is a Massachusetts Limited Liability Corporation with a principal place of business at 635 Plain Street, Marshfield, Massachusetts.

2. Plaintiff Perfection Fence Corp. (Perfection Fence) is a Massachusetts corporation with a principal place of business at 635 Plain Street, Marshfield, Massachusetts.

3. First Class, LLC, owns an eight acre parcel of land located in the industrial zoning district of Marshfield (Property). The Property is also located in the Planned Mixed-Use Development overlay district. The Property has approximately 375 feet of frontage along Route 139 (a/k/a Plain Street) and the frontage of the Property is located within the Water Resource Protection District (WRPD). Perfection Fence Corp. leases the Property from First Class, LLC.

4. First Class acquired the Property in 2002. At that time, there were two existing curb cuts along Route 139, one at the westerly end of the Property and one near its center.

5. Perfection Fence operates a business on the Property at which it stores, assembles, and sells decorative fencing, including lanterns, gazebos, and accessory sheds. The Property is also used as a showroom for members of the public to view and choose decorative fencing and accessories to be assembled on-site and delivered to the customer’s home. This creates some conflict of traffic between private individuals frequenting the showroom and trucks transporting items from the site to customers for assembly.

6. In 2001, Perfection Fence applied to the ZBA for site plan approval to operate its business. It also applied to the Planning Board (Planning Board) for a special permit allowing the proposed use in the WRPD. The plans in both these applications showed two curb cuts on the Property, where they were then located.

7. Both the Board and the ZBA approved the plans. However, in approving the site plan, the ZBA imposed several conditions, including a condition that Perfection Fence reduce the number of curb cuts to one by eliminating the westerly curb cut. Perfection Fence appealed that decision, but voluntarily dismissed the action when the ZBA eliminated the condition prohibiting retail sales at the Property. The condition regarding the removal of the curb cut was not eliminated by the ZBA.

8. In October 2002, Perfection Fence applied to the Massachusetts Highway Department seeking approval to move the existing curb cut and driveway on the westerly side of the Property to the easterly side and permission to open a curb cut at the center of the Property, as shown on their plan submitted to the ZBA. In December 2002, the Highway Department approved the application and Perfection Fence constructed the improvements on the Property.

9. The Marshfield Zoning By-law permits only one curb cut on each lot with less than 600 feet of frontage. In July 2003, following the Highway Department’s approval of the center curb cut, Perfection Fence submitted a petition to the ZBA for a variance to allow more than one curb cut on the Property, which has less than 600 feet of frontage along Route 139. On December 16, 2003, the ZBA denied that petition. Thereafter, Plaintiffs opened for business at the Property with the one approved curb cut, which they have been using since that time.

10. Three years later, in July 2006, Perfection Fence petitioned the ZBA for site plan modification to open the second curb cut, which they still wanted to utilize. August 2006, Perfection Fence again petitioned the ZBA for a variance to open the second curb cut. The ZBA denied the petition for a variance on October 30, 2006, and denied the petition for site plan modification on November 6, 2006.

11. In denying the petition for a variance, the ZBA stated that the “conditions and circumstances [were] not unique to the applicant’s lot in that all lots along the Route 139 corridor must deal with the high volume of traffic.” The ZBA further stated that “[s]trict application of the Bylaw would not deprive the Applicant of reasonable use of its lot as the business is thriving in its location. There are no unique circumstances or conditions relating to this lot. Relief would impair the intent and purpose of the Bylaw. Relief would be a grant of special privilege.”

12. Route 139 is a state highway and is classified as a rural minor arterial roadway by the Massachusetts Highway Department. The road is heavily traveled at all times during the day and traffic is extensive. Over 25,000 motor vehicles travel over Route 139 on a daily basis. All of the businesses located on this road experience heavy traffic conditions and are affected in like manner by the number of cars that travel on this road every day.

13. The topography of Route 139 is flat and there is a large control box owned by Verizon located on Route 139 directly abutting the sidewalk in front of the Property. Although this control box slightly impedes the vision of drivers exiting the parking area from the current driveway on the Property, both the minimum and desirable sight lines, as established by the American Association of State Highway and Transportation Officials (AASHTO), are met by the location of Plaintiffs’ existing driveway.

14. The addition of a second curb cut on the Property would have a negligible effect on the quality of water flowing to the Furnace Brook Aquifer, one of water resources protected by the regulations which pertain in the WRPD. However, with respect to traffic, the addition of a second curb cut and driveway on the Property would increase the number of conflict points along that portion of Route 139, potentially decreasing the safety of the traffic conditions along the road.

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Plaintiffs’ Challenge under G. L. c. 40A, §17

Plaintiffs contend they are entitled to a variance allowing two curb cuts because, due to the flat topography of Route 139 and the visual impediment caused by the Verizon control box, a second curb cut is necessary to maintain vehicular and pedestrian safety on the Property. A second curb cut would, in Plaintiffs’ opinion, allow for better traffic flow on the Property and make it easier for large delivery trucks to safely navigate the Property.

An appeal of a municipal board’s decision on an application for a variance or special permit is heard de novo, with the court considering all evidence pertinent to the authority of the board’s action. Pendergast v. Board of Appeals, 331 Mass. 555 , 558-59 (1954). The judge then makes his or her own findings of fact, independent of any findings of the board. Id. To set aside a local board’s decision, the court must find, based on the evidence, that the board’s decision was “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). In addition, inasmuch as “no person has a legal right to a variance and they are to be granted sparingly,” the burden of proof rests upon “the person seeking a variance and the board ordering a variance to produce evidence . . . that the statutory prerequisites have been met and that the variance is justified.” Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 115 (1985) (citations omitted).

In order to satisfy the prerequisites for the grant of a variance, Plaintiffs are required to prove that “owing to circumstances relating to soil conditions, shape, or topography of its land or structures, and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the bylaw would involve substantial hardship, financial or otherwise, to the petitioner, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such bylaw.” G. L. c. 40A, § 10. The requirements of G. L. c. 40A, § 10, are conjunctive and each of the statutory elements must be established. See Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 , 450 (1956).

Plaintiffs have failed to show a condition that relates to the soil conditions, shape, or topography of the land or structures thereon that affects the Property but not the properties surrounding it. Although Plaintiffs point to the existence of the Verizon control box as a visual impediment to cars entering the stream of traffic on Route 139 from the Property, the evidence, coupled with the court’s observations at the view, did not support that allegation. Plaintiffs failed to establish that the location of the control box creates a hazardous condition. Taking into account the testimony of Mr. Mueler, Mr. Garvin, and the conditions observed during the view of the Property, this court finds that the minimum and desirable sight distances are met by the single curb cut already at the Property. The location of the Verizon control box may cause drivers in certain vehicles, depending on the height of the vehicle, to pull forward a bit more toward Route 139 than the driver otherwise might do if the control box were not there, but that fact does not create a hazardous situation.

There is nothing that distinguishes the Property from the adjacent properties along Route 139. Plaintiffs, recognizing that fact, rely heavily on the existence of the Verizon control box to distinguish the Property and justify their entitlement to a variance to allow a second curb cut. They argue persuasively that traffic flow within the Property would be more efficient if the truck traffic and the automobile traffic could be kept separate, but that reality is not sufficient to justify the grant of a variance under G. L. c. 40A, § 10. Plaintiffs have failed to establish that there is anything unique about the Property’s soil conditions, shape or topography, and therefore the Board’s denial was proper.

Plaintiffs’ Challenges Under G. L. c. 240, § 14A

Local zoning regulations enacted in accordance with enabling statutes are presumed valid. Beard v. Salisbury, 378 Mass. 435 , 439 (1979). To rebut this presumption, a plaintiff challenging an ordinance or bylaw provision must show that the regulation is unconstitutional or conflicts with the purposes of G. L. c. 40A, in that it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals, or welfare. Beard, 378 Mass. at 440; Nahigian v. Town of Lexington, 32 Mass. App. Ct. 517 , 524 (1992).

In Count III, Plaintiffs challenge Marshfield’s WRPD as being violative of the uniformity requirements of G. L. c. 40A, § 4, as further delineated in SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984). The purpose of the uniformity requirement is to ensure that similarly situated land receives identical treatment, so that “if anyone can go ahead with a certain development [in a district] then so can everybody else.” SCIT, 19 Mass. App. Ct. at 107. The Supreme Judicial Court reaffirmed the holding in SCIT and further refined it, holding that a zoning by-law that permits “at least one use in each zoning district as a matter of right” does not violate G. L. c. 40A, § 4. Gage v. Town of Egremont, 409 Mass. 345 , 348 (1991).

Plaintiffs allege that all uses allowed as-of-right in the WRPD are either exempt from zoning or “merely illusory.” This court disagrees. The Marshfield Zoning Bylaw allows as-of- right a “Communications Tower containing Communications Facilities” in both the industrial zoning district and the WRPD. [Note 2] Contrary to Plaintiffs’ contention, this use is not required by federal law and is not exempt from zoning regulation. See The Federal Telecommunications Act of 1996, 42 U.S.C. § 332 (c)(7). The Telecommunications Act merely proscribes zoning regulation that discriminates among providers or prohibits, or has the effect of prohibiting, access to personal wireless services. Accordingly, the allowance of this use in the WRPD district is sufficient to bring the Bylaw into compliance with SCIT and Gage. In Count IV of their amended complaint, Plaintiffs challenge the Marshfield Bylaw as not being uniformly applied within the industrial zoning district. Plaintiffs contend that because a variance is required for additional curb cuts within the WRPD, but not elsewhere within the industrial zoning district, that the Bylaw is not uniformly applied and, is therefore, void. Again, this court disagrees.

The use of overlay zoning districts has been generally accepted and regarded as a valid exercise of local zoning authority. See generally S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477 (1980); Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221 (1972). By their very nature, overlay districts add certain requirements to land located therein. Plaintiffs failed to show that any parcels of land with less than 600 feet of frontage within the WRPD are treated differently with respect to the requirement of a variance for more than one curb cut. Instead, Plaintiffs argue that because parcels located within the WRPD and the industrial zoning district are treated differently from parcels located within the industrial zoning district but outside of the WRPD, the Bylaw must be void. The fact that properties located within the WRPD are subject to additional restrictions is a proper function of the overlay district itself and does not void the Bylaw.

Finally, Plaintiffs allege in Count VI that the Bylaw must be void because it conflicts with state law and the state law was meant to occupy the field. In the instant case, Plaintiffs have failed to carry their heavy burden in proving that the Bylaw is inconsistent with G. L. c. 81, § 21, regulates curb cuts on state highways. Generally, “the cases dealing with repugnancy or inconsistency of local regulations with state statutes have given considerable latitude to municipalities, requiring a sharp conflict between local and state provisions before the local regulations have been held invalid.” Bloom v. Worcester, 363 Mass. 136 , 154 (1973). In order for Plaintiffs to show that the Bylaw is void for inconsistency, they must show that it (1) affects a subject that has been so comprehensively dealt with by the state legislature that the intent to expel local jurisdiction must be inferred, (2) affects a subject on which the state legislature has prohibited local action, or (3) prevents a state legislative purpose from being achieved. Id. at 155. Plaintiffs have failed to prove any of these criteria. Indeed, G. L. c. 81, § 21 expressly contemplates local action by providing that a permit for a driveway shall not be granted where “the board or department in a city or town having authority over public ways has notified the department . . . of their objection to the driveway.” G. L. c. 81, § 21. Plaintiffs’ constitutional challenge

In Count V of their amended complaint, Plaintiffs allege that the Bylaw is unconstitutional, on its face and as applied to the Property. “Zoning has always been treated as a local matter and much weight must be accorded to the judgment of the local legislative body, since it is familiar with local conditions.” Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 116-17 (1955). Therefore, “any possible permissible legislative goal which may rationally be furthered by the regulation will support a measure’s constitutionality.” Sturges v. Town of Chilmark, 380 Mass. 246 , 256-57 (1980). Plaintiffs simply have not carried their onerous burden with respect to this count. The purpose of the WRPD, the protection of water resources, is a valid public purpose.

As for Plaintiffs’ position that the Bylaw is unconstitutional as applied to the Property, they failed the carry their burden there as well. The fact that the evidence established in this case that a second curb cut would not have more than a negligible effect on the aquifer does not change the fact that the one-curb cut requirement serves the legitimate public purpose of protecting the water resources within the Town. The potential of substantial cumulative effect of many properties each having a small negative effect on the aquifer is precisely what the Bylaw seeks to avoid. Further, the curb cut Bylaw is also applicable to the Property because it is implicated by Plaintiffs’ special permit application for the portion of the Property by Perfection Fence for the storage and assembly of fencing.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: December 5, 2008