LOWE'S HOME CENTERS, INC. vs. TOWN OF AUBURN PLANNING BOARD and DAVID DELOLLIS, PHILIP TULLY, RONALD BROOKS, DANIEL CARPENTER, and DAVID DOHERTY, in their capacity as members of the Town of Auburn Planning Board

Plaintiff Lowe’s Home Centers, Inc., (“Lowe’s”) filed its unverified complaint in Permit Session Case No. 352453 on August 8, 2007, appealing, pursuant to the provisions of G. L. c. 40A, § 17 and G. L. c. 185, § 3A, Defendant Town of Auburn Planning Board’s (the “Planning Board”) denial of three site plan applications (the “Site Plan Denials”) and two earth removal special permit applications (the “Special Permit Denials”) pertaining to property located at 614 Southbridge Street in Auburn, MA (“Locus”). The Site Plan Denials and Special Permit Denials were dated July 19, 2007. A case management conference was held on September 25, 2007.

Simultaneously with the appeal to this court, Lowe’s filed an appeal of the Site Plan Denials with the Town of Auburn Zoning Board of Appeals (the “ZBA”). In a decision dated October 12, 2007, the ZBA overturned the Site Plan Denials and approved the site plan applications (the “ZBA Decision”).

On November 1, 2007, three neighbors of Locus, Gary Lemerise, Diane Bruke, and Mary Ann Anderson (the “Abutters”), filed their unverified complaint in Permit Session Case No. 358291, appealing, pursuant to G. L. c. 40A, § 17, the ZBA Decision. Also on November 1, 2007, the Planning Board filed its unverified complaint in Permit Session Case No. 358322, appealing, pursuant to G. L. c. 40A, § 17, the ZBA Decision. On November 29, 2007, a status conference was held for Case No. 352453 and a case management conference was held for Cases Nos. 358291 and 358322. In a post-hearing order of the same date, the three cases were consolidated.

On January 15, 2008, the Planning Board and Abutters filed a Joint Motion for Summary Judgment for all three cases, together with a Statement of Facts and a supporting brief. The Planning Board and Abutters sought summary judgment with regards to the following issues: (1) whether the ZBA had jurisdiction to decide Lowe’s appeal of the Site Plan Denials; (2) whether the Land Court has jurisdiction to decide Lowe’s appeal of the Site Plan Denials; and (3) whether the Site Plan Denials were valid as a matter of law.

On March 21, 2008, Lowe’s and the ZBA filed a Joint Cross-Motion for Summary Judgment and Joint Opposition to the Motion for Summary Judgment filed by the Planning Board and Abutters, together with Statement of Additional Material Facts and Response to the Planning Board and Abutters’ Statement of Facts, a supporting memorandum, and Affidavits of Michael Weiss, Allen C. Nunnally, Tom Dillon, Edward B. Boiteau, Lawrence A. Brodeur, and Michael J. Hall. Lowe’s and the ZBA sought summary judgment on the issues of: (1) whether the Development, as hereinafter defined, is permitted as-of-right on Locus; (2) whether earth removal special permits are a prerequisite to site plan approval; (3) whether the Planning Board exceeded its authority in issuing the Site Plan Denials; (4) whether the ZBA had jurisdiction to decide Lowe’s appeal of the Site Plan Denials; and (5) whether the Land Court has jurisdiction to decide Lowe’s appeal of the Site Plan Denials. [Note 1]

On March 20, 2008, the Planning Board and Abutters filed a Motion in Opposition to the Cross-Motion for Summary Judgment of Lowe’s and the ZBA, together with a Statement of Additional Material Facts and Response to Lowe’s and ZBA’s Statement of Additional Material Facts, and a supporting brief. On March 25, 2008, Lowe’s and the ZBA filed a Reply Brief in support of their Cross-Motion for Summary Judgment. A summary judgment hearing was held on March 26, 2008, and all three cases were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm’r of Correction, 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds the following facts are not in dispute:

1. Locus consists of three adjoining parcels of land in Auburn, MA, two parcels (“Parcel 1” and “Parcel 2”) owned by Lowe’s and containing seventeen acres, and one parcel (“Parcel 3”) owned by the Massachusetts Turnpike Authority (“MTA”) and containing 1.84 acres. Parcel 1 is the former site of a motel, office, and conference center.

2. The Abutters own properties abutting Locus on the west.

3. On May 5, 2005, Lowe’s applied to the ZBA for a variance relative to Locus from the sign regulations under the Auburn Zoning Bylaw (the “Bylaw”). Lowe’s sought approval of a two-foot outdoor wall sign reading “Indoor Lumber Yard.” On June 24, 2006, the ZBA approved the variance for a sign reading “Lumber Yard,” ordering the removal of the word “Indoor.”

4. On July 18, 2006, Lowe’s submitted three Site Plan Approval Applications (the “Site Plan Applications”) to the Planning Board pursuant to section 9.4 of the Bylaw, which states: “The Planning Board may approve a Site Plan in accordance with the standards of this by-law.” Section 9.4.1 of the Bylaw continues:

Applicability – Site Plan Approval shall be required in all instances for the development of land in Section 3, Table of Principal Uses as requiring Site Plan Approval and for all accessory uses thereto. Additionally, any expansion of an existing use which now requires Site Plan Approval shall be subject to the requirements of this by-law. Furthermore, any development that requires a Special Permit, or a Variance authorizing a use not specifically allowed by the By-law, is also subject to a Site Plan Approval by the Planning Board, unless this requirement is waived by the Planning Board. The requirements that follow for granting Site Plan Approval may be waived in part or in total at the discretion of the Planning Board.

The Bylaw’s Table of Principal Uses allows a “retail store and sales” use within the HB District with site plan approval. The site plan (the “Site Plan”) filed with the Site Plan Applications proposed a development (the “Development”) at Locus that would span all three parcels, requiring one Site Plan Application per parcel. Lowe’s proposes to build a retail establishment on Parcel 1 consisting of a 168,554 square foot structure, including a 136,358 square foot building and a 32,196 square foot attached garden center. A bank building currently exists on Parcel 2. The MTA owns Parcel 3 and proposes to build a Park-and-Ride lot on it. All three Site Plan Applications were filed for retail store uses (Parcel 1 as Retail Store - Home Improvement Center, Parcel 2 as Retail/Bank Building, and Parcel 3 as parking lot for retail store and park and ride facility for the MTA).

5. All three parcels are located in a Highway Business (“HB”) District under the Bylaw. In a HB District, retail store and sales uses are allowed with site plan approval. A lumber yard is a prohibited use in a HB District.

6. Lowe’s is registered to do business in Massachusetts as a corporation in the business of “Retail Sales.” [Note 2] A typical Lowe’s retail establishment, like the one proposed in the Site Plan Applications, contains aisles with display racks for a wide variety of home improvement merchandise. Additionally, it provides customers with shopping carts, check out lanes, parking for several hundred customers, and assistance for home improvement projects. Lowe’s described its proposed use of Locus as “retail use (home improvement)” in the Special Permit Applications, as hereinafter defined, and the Site Plan Applications.

7. Products related to building materials comprised 28% of Lowe’s sales by percentage of all sales in 2006: “lumber” represented 8%; “flooring” represented 7%; “millwork” represented 7%; and “building materials” represented 6%. The other 72% of sales were comprised of the following: “appliances;” “paint;” “fashion plumbing;” “lighting;” “tools;” “lawn and landscape products;” “hardware;” “seasonal living;” “cabinets & countertops;” “outdoor power equipment;” “rough plumbing;” “rough electrical;” “nursery;” “home environment;” “walls/windows;” “home organization;” and “other.”

8. 25% of Lowe’s customers are commercial sales customers.

9. Section 3.8.1.2.3 of the Bylaw requires Planning Board approval of an earth removal special permit for projects that necessitate removal of more than 500 cubic yards of earth when incidental to and in connection with the construction of a building or street. Construction of the Development in accordance with the Site Plan would require blasting a ledge and removing earth in quantities substantially in excess of this threshold (181,000 cubic yards) and, therefore, special permit approval is required.

10. Lowe’s submitted two Earth Removal Special Permit Applications (the “Special Permit Applications”) to the Planning Board on January 12, 2007, one for each of Parcel 1 and Parcel 3. In the Special Permit Applications, Lowe’s sought approval to blast a large amount of ledge on the northern, eastern, and western borders of Locus and to remove earth from Locus. Lowe’s estimated that 181,000 cubic yards of earth would need to be removed for construction of the Development. The Planning Board’s peer reviewer estimated that construction of the Development in accordance with the Site Plan would require between 207,415 and 233,386 cubic yards of earth removal.

11. The Planning Board opened the public hearing on the Special Permit Applications on February 13, 2007 and continued it through several hearings including April 24, 2007. On April 24, 2007, the Planning Board closed the public hearing and voted 5-0 to deny the Special Permit Applications.

12. On June 26, 2007, the Planning Board voted 4-0 with one abstention to deny the Site Plan Applications.

13. The Site Plan Denials stated the reasons for denial of the Site Plan Applications as follows:

The Site Plan Denials also stated as reasons for denial: Lack of Adequate Buffer; Noise Attenuation; Deficient Traffic Analysis; and Severe Traffic Impacts.

14. On July 19, 2007, the Site Plan Denials and the Special Permit Denials were both filed with the Town Clerk.

15. Lowe’s appealed the Site Plan Denials and the Special Permit Denials to this court on August 8, 2007. On the same day Lowe’s appealed the Site Plan Denials to the ZBA. Lowe’s did not apply to the building inspector for a building permit for the Development prior to filing the simultaneous appeals to this court and the ZBA.

16. The ZBA held a public hearing regarding Lowe’s appeal of the Site Plan Denials on September 20, 2007.

17. On October 12, 2007, the ZBA filed the ZBA Decision reversing the Planning Board’s denial of the Site Plan Applications and granting site plan approval to Lowe’s.

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The central issue before this court on the motions for summary judgment is the Site Plan Denials. Lowe’s and the ZBA argue that both the ZBA and the Land Court have jurisdiction to hear an appeal of the Site Plan Denials. They also argue that the Site Plan Applications were for an as-of-right use, and therefore the Planning Board exceeded its authority in the Site Plan Denials. They further contend that an earth removal special permit is not a prerequisite to site plan approval. The Planning Board and Abutters argue that the ZBA Decision is invalid since the ZBA lacked jurisdiction to hear Lowe’s appeal based on Lowe’s failure to apply for a building permit. They also argue that this court is without jurisdiction to hear Lowe’s appeal to the Land Court since the Planning Board is not a “special permit granting authority” within the purview of G. L. c. 40A, § 17. [Note 3] The Planning Board and Abutters further argue that, even if the ZBA or Land Court has jurisdiction, the proposed use was not as-of-right and it was not permitted in the HB District. They also argue that the Development is ineligible for site plan approval since Lowe’s did not first obtain an earth removal special permit.

Procedural Issues

A. Appeal to ZBA.

As discussed, infra, it is clear that Lowe’s required site plan approval under the Bylaw for the Development. Moreover, the Bylaw makes site plan approval a condition precedent to the granting of a building permit by the building inspector. Bylaw § 9.2 (“No building permit shall be issued by the Building Inspector unless the construction, alteration or relocation for which the permit is sought complies with the provisions of this by-law . . . .”). The Planning Board and the Abutters contend that the ZBA did not have the authority to hear Lowe’s appeal of the Site Plan Denials because Lowe’s did not apply for a building permit. The ZBA claims that G. L. c. 40A, § 8 granted it jurisdiction to hear Lowe’s appeal of the Site Plan Denials. Section 8 states:

An appeal to the permit granting authority as the zoning ordinance or by_law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by_law adopted thereunder.

In St. Botolph Citizen’s Comm., Inc., v. Boston Redevelopment Auth., 429 Mass. 1 , 9 (1999), the Supreme Judicial Court held that “the right of an aggrieved person to appeal a local planning board’s site plan review decision arises only when the building permit for the proposed project is issued or denied by the building inspector.” Furthermore, a jurisdictional prerequisite of an appeal to a zoning board of appeals pursuant to G. L. c. 40A, § 8, is an “action by an administrative officer, the inspector of buildings, or other administrative official.” Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct. 67 , 69 (2006) (internal quotations omitted).

When site plan approval is a prerequisite to building permit approval, a planning board’s decision regarding site plan approval is not appealable to a zoning board of appeals prior to the submission of a building permit application. See Dufault v. Millenium Power Partners, L.P., 49 Mass. App. Ct. 137 , 142 (2000). [Note 4] As such, a formal denial by the building inspector was required prior to an appeal of the Site Plan Denials to the ZBA. Id. Since Lowe’s never filed an application with the building inspector, the ZBA lacked jurisdiction to hear the appeal of the Site Plan Denials. Thus, the ZBA Decision must be reversed.

B. Appeal to the Land Court.

The Planning Board and the Abutters also argue that the Land Court is without jurisdiction to hear Lowe’s appeal of the Site Plan Denials. G. L. c. 40A, § 17 states, in part, “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the land court . . . .” The Planning Board and the Abutters contend that since Lowe’s applied for site plan approval for an as-of-right use, the Planning Board was not sitting as a “special permit granting authority,” and therefore, G. L. c. 40A, § 17 does not authorize an appeal to this court. [Note 5]

Lowe’s applied to the Planning Board for site plan approval for the Development as an as-of-right use. The Planning Board has authority to hear such applications. Bylaw § 9.4 (“The Planning Board may approve a Site Plan in accordance with the standards of this by-law.”). [Note 6] Here, the Planning Board was not acting with the discretionary authority of a special permit granting authority, but rather was charged with evaluating the Site Plan Applications in accordance within the framework of an as-of-right use. G. L. c. 40A, § 17 confers standing to an aggrieved party who appeals a planning board decision directly to the Land Court when the planning board acted as a special permit granting authority pursuant to the applicable bylaw. [Note 7] Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20-21 (1995). Here, because the Planning Board was not acting as a “special permit granting authority” in its review of the Site Plan Applications, this court lacks jurisdiction to hear an appeal of the Site Plan Denials under G. L. c. 40A, § 17.

Notwithstanding the foregoing, Lowe’s appeal to the Land Court was also brought pursuant to G. L. c. 185, § 3A, which states in part:

[T]he permit session of the land court . . . shall have original jurisdiction, concurrently with the superior court department, over . . . claims between persons holding any right, title or interest in land and any municipal, regional or state board . . . arising out of any action taken with respect to any permit or approval concerning the use or development of real property . . . only if the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet or more gross floor area or both.

Lowe’s appeal to the Land Court arose from the Site Plan Denials and Special Permit Denials and indisputably concerns a development that exceeds 25,000 square feet in gross floor area. [Note 8] Therefore, this appeal is properly before the permit session of the Land Court in accordance with section 3A. [Note 9]

Site Plan Approval

A. Use Permitted As-of-right.

Lowe’s filed the Site Plan Applications for a proposed principle use of Locus as a “retail store and sales.” The Bylaw’s Table of Principal Uses indicates that site plan approval is required for a land use classification of “retail store and sales” within a HB District. Therefore, the Development cannot proceed without site plan approval and it is necessary to determine whether the Site Plan Denials were improper.

The first issue with regards to site plan approval is whether the proposed use of Locus as stated in the Site Plan Applications is permitted as-of-right in a HB District. Lowe’s argues that it is entitled to site plan approval because the Development is for a “retail store and sales” use, an as-of-right use in a HB District. The Planning Board argues that the Site Plan is for a “lumber yard” use, which is not permitted in the HB District.

Section 3.1 of the Bylaw states, in part:

No land, structure, or building shall be used except for the purposes permitted in the district as set forth in this section unless otherwise permitted in this by-law. In all districts only one principle use per lot is authorized . . . If an activity might be classified under more than one of the principal use definitions, the more specific definition shall determine whether the use is permitted. If the activity might be classified under equally specific definitions, it shall not be permitted unless both principal uses are permitted in the district. [Note 10]

Section 3.2 of the Bylaw contains the “Principle Use Definitions,” which categorizes the different types of land development. [Note 11] Section 3.2.5.0 defines a “retail store and sales” as

[a]n establishment engaged in displaying and selling goods or merchandise within a building to the general public or to business establishments which goods or merchandise are not intended for resale; except that a garden center, florist or commercial greenhouse may have open air display of horticultural products.

Such use is an allowed use in a HB District. Section 3.2.7.1 defines a “lumber yard” as “A facility or area for the open or enclosed storage and sales of building materials.” A “lumber yard” is not an allowed use in a HB District.

The sale of lumber and building materials represent only 28% of Lowe’s total sales. Lowe’s Site Plan Applications proposed a lumber yard on Locus and also requested a signage variance for a sign directing customers to the lumber yard. The lumber yard, however, is not the “primary” or “most important” use of Lowe’s proposed retail establishment on Locus. 72% of the merchandise sold in a typical Lowe’s store is more closely related to appliances, decorations, tools, and power equipment than building materials. Furthermore, the large parking lot, display racks, multiple retail counters, shopping carts and assistance for home improvement projects combine to indicate that a Lowe’s retail establishment is set up to facilitate the sale of its goods and merchandise to individual consumers who intend to use the products for home improvement rather than commercial resale. Also, 75% of Lowe’s customers are not commercial sales customers. Thus, Lowe’s is openly and primarily engaged in the business of “displaying and selling goods or merchandise within a building to the general public or to business establishments which goods or merchandise are not intended for resale.” Accordingly, a Lowe’s retail establishment’s principle use is more appropriately defined as a “retail store and sales” than a “lumber yard.” Therefore, I find that the Site Plan Applications proposed a use which is permitted as-of-right in a HB District.

B. Approval of Site Plan Applications.

Since the use proposed in the Site Plan Applications is permitted as-of-right, it must next be determined whether this court can overturn the Site Plan Denials and grant an approval of the Site Plan Applications. In a review of a board’s decision to deny a site plan application for an as-of-right use, a court examines evidence de novo and makes its own findings of fact. Prudential Ins. Co. of Am. v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282 n. 7 (1986).

Site plan approval acts as a method for regulating as-of-right uses rather than prohibiting them. Y. D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 31 (1970). When evaluating the Site Plan Applications, the Planning Board may not unconditionally deny the Site Plan Applications, but rather, it may impose reasonable conditions upon them. See Prudential, 23 Mass. App. Ct. at 281-82; Quincy, 39 Mass. App. Ct. at 21-22 (“[W]here the proposed use is one permitted by right the planning board may only apply substantive criteria . . . i.e., it may impose reasonable terms and conditions on the proposed use, but it does not have the discretionary power to deny the use.”). Thus, when a site plan application is submitted for an as-of-right use, a planning board is obligated to grant an approval with reasonable conditions unless, “despite best efforts, no form of reasonable conditions [can] be devised to satisfy the problem with the plan . . . .” Prudential, 23 Mass. App. Ct. at 283 n. 9; Castle Hill Apartments Ltd. P’ship v. Planning Bd. of Holyoke, 65 Mass. App. Ct. 840 , 845-46 (2006).

The Planning Board has not yet had an opportunity to assess the Site Plan Applications within the framework of an as-of-right use. The Site Plan Denials treated the Development as a use which was not permitted as-of-right. Therefore, I REMAND the Site Plan Denials to the Planning Board to take action consistent with this decision. The Planning Board cited other reasons for denial of the Site Plan Applications, but denied the Site Plan Applications instead of conditioning them. The Planning Board must analyze the Site Plan and either approve it with reasonable conditions or determine if the problems are so intractable that approval is not possible. See Prudential, 23 Mass. App. Ct. at 282-83.

C. Relationship to Earth Removal Special Permits.

Finally, this court must determine whether the Bylaw required Lowe’s to obtain earth removal special permits as a prerequisite to site plan approval. The Planning Board argues that the denial of the Special Permit Applications rendered the Site Plan Applications defective, and therefore, approval of the Site Plan Applications would have been improper and in violation of the Bylaw. Lowe’s argues that the denial of the Special Permit Applications is independent from the denial of the Site Plan Applications.

Bylaw section 3.8.1.2.3, which governs earth removal, requires a special permit where the “removal of earth products” will “exceed 500 cubic yards when incidental to and in connection with the construction of a building or street or other activity authorized by [the Bylaw].” The Planning Board contends that approval of a site plan is conditioned upon approval of earth removal special permits by the Bylaw, which states, in part, that “Site Plan Approval shall be required for the development of land in Section 3, Table of Principle Uses as requiring Site Plan Approval and . . . any development that requires a Special Permit . . . is also subject to a Site Plan Approval by the Planning Board.” Bylaw § 9.4.1 (emphasis added). However, this language does not indicate that an earth removal special permit is a prerequisite to a separate site plan approval. Rather, it requires that where a development is proposed that would require earth removal, thus triggering the need for a special permit, a separate site plan approval is required for the proposed use. Therefore, I find that the Bylaw does not require Lowe’s to obtain an earth removal special permit as a prerequisite to site plan approval for a use as-of-right. [Note 12]

In summary, through this decision, this court has determined that because Lowe’s failed to request a building permit from the building inspector for a proposed use of Locus requiring site plan approval, the ZBA lacked jurisdiction to hear the appeal of the Site Plan Denials and must be reversed. Furthermore, this matter is properly before the Land Court pursuant to G. L. c. 185, § 3A. Next, Lowe’s retail establishment’s principal use is more appropriately defined as a “retail store and sales” than a “lumber yard,” and, as such, the Site Plan Applications proposed a use which is permitted as-of-right in a HB District. Because the Planning Board failed to assess the Site Plan Applications within the framework of an as-of-right use, the Site Plan Denials are remanded to the Planning Board to take action consistent with this decision. Finally, the Bylaw does not require Lowe’s to obtain an earth removal special permit as a prerequisite to site plan approval for a use as-of-right.

On remand, the Planning Board shall act by January 31, 2009. This court shall retain jurisdiction over this matter until final resolution of the issues, at which time a judgment shall be issued. Due to the remaining issues associated with this case, including the Special Permit Denials, this court requests that the parties attend a status conference scheduled for December 19, 2008 at 11:00 A.M.

Alexander H. Sands, III

Justice

Dated: December 5, 2008