PREMIERE EDUCATION GROUP d/b/a THE SALTER SCHOOL and CAMPUS REALTY GROUP, INC. vs. CITY OF WORCESTER, acting by and through LEONARD CIUFFREDO, MORRIS BERGMAN, MATTHEW ARMENDO, JERRY HORTON, THOMAS HANNIGAN, DAVID GEORGE and ANDREW FREILICH, as they are members of the WORCESTER ZONING BOARD OF APPEALS, and JOHN SHEA, SCOTT CASHMAN, ANNE O'CONNOR, MARGARET GUZMAN and NICOLE XIFARAS PARELLA, as they are members of the PLANNING BOARD, and the CITY OF WORCESTER

Plaintiff Premiere Education Group d/b/a The Salter School (the "School") and Plaintiff Campus Realty Group, Inc. ("Campus") (together, "Plaintiffs") filed their unverified Complaint on January 22, 2007, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Worcester Zoning Board of Appeals (the "ZBA") which dismissed Plaintiffs' administrative appeal of a decision of Defendant Worcester Planning Board (the "Planning Board") denying Plaintiffs' application for parking plan approval for Locus, as hereinafter defined. The ZBA, the Planning Board, and Defendant City of Worcester ("City") (together, "Defendants") filed their Answer on February 22, 2007.

On February 26, 2007, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix. Defendants filed their Opposition on March 26, 2007, together with supporting memorandum, Statement of Additional Material Facts, and Appendix. A case management conference was held on May 10, 2007, at which Defendants argued that the only issue on summary judgment was the timeliness of Plaintiffs' appeal of the Planning Board decision to the ZBA, and the parties agreed that no discovery was necessary. A hearing was held on the summary judgment motion on November 15, 2007, at which time the matter was 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. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The following facts are not in dispute:

1. Campus owns the property located at 155 Ararat Street, Worcester, MA ("Locus"). The School leases Locus from Campus.

2. Locus is in a RS-7 (Residential, Single Family) zoning district under the Worcester Zoning Ordinance (the "Ordinance"). The School is a for-profit educational institution which operates a school at Locus pursuant to a use variance. In 1987 the Worcester License Board authorized fifty-four parking spaces at Locus for the School.

3. On May 25, 2005, Plaintiffs applied to the Planning Board to expand the existing parking lot to a capacity of 148 vehicles. On November 9, 2005, the Planning Board voted to deny the application, and on November 18, 2005, the Planning Board signed a written decision. Plaintiffs appealed this decision to the ZBA on January 25, 2006. The ZBA denied this appeal on February 27, 2006, on the grounds of late filing, and a written decision was issued on March 13, 2006, and filed with the Worcester City Clerk on March 14, 2006. Plaintiffs filed an action in Worcester Superior Court (No. 06-0638B) on March 27, 2006, appealing the ZBA decision, which was dismissed on August 27, 2007.

4. On May 17, 2006, Plaintiffs filed an application (the "Application") with the Planning Board for approval of a parking plan for the School with a capacity of 141 vehicles. [Note 1]

5. On August 16, 2006, the Planning Board voted to deny approval of the Application based on numerous stated deficiencies of the parking plan. On August 21, 2006, Plaintiffs requested "reconsideration" of the vote, and on September 1, 2006, the Planning Board stated that the Planning Board could not reconsider their vote, but that Plaintiffs could submit a new parking plan. A written decision (the "Planning Board Decision") was signed on September 6, 2006, but was not filed with the Worcester City Clerk nor sent to Plaintiffs. [Note 2] The Planning Board Decision cited as deficiencies of the parking plan, "inadequacy of parking lot circulation without paving and striping," "inadequacy of pedestrian and vehicle safety," and "all issues from the parking plan denied of November 9, 2005, that were not addressed."

6. On October 5, 2006, Plaintiffs filed an appeal of the Planning Board Decision (the "Appeal") with the ZBA.

7. On December 18, 2006, the ZBA voted to dismiss the Appeal. A written decision (the "ZBA Decision") was signed on January 8, 2007, and filed with the Worcester City Clerk on January 9, 2007, stating that the Appeal was not timely filed.

8. On January 17, 2007, representatives of Summit Academy School met with the Worcester Planning Department to discuss a possible reuse of Locus as a private, non-profit educational institution for children with ADHD, Asperger's Syndrome, and other nonverbal Learning Disabilities.

9. Plaintiffs appealed the ZBA Decision to this court on January 22, 2007. [Note 3]

10. As of March 20, 2007, a sign at Locus stated:

To Our Students, Alumni and Friends
Thank you for your Support!
69 Years of Success
Visit our New Campus
184 West Boylston St
West Boylston, MA
Salter

*************************

Plaintiffs argue that they complied with G. L. c. 40A, § 15, which allows an administrative appeal within thirty days of a written decision. Plaintiffs also claim that the Planning Board had no authority to deny the Application, but could only approve the Application with conditions. [Note 4] Defendants argue that the Appeal was not timely filed because it should have been filed within thirty days of the vote of the Planning Board, and even if it were timely filed, the Planning Board Decision was within its authority. [Note 5]

G. L. c. 40A, § 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 . . . in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.

G. L. c. 40A, § 15 governs administrative appeals and states that "[a]ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed."

Article II (Administration and Procedure of Enforcement), Section 7(4), states:

Duties of the ZBA - The ZBA is authorized to do the following:

A. Appeals

To hear and decide appeals by . . . any person aggrieved, by . . . an order or decision by the Planning Board under Site Plan Approval . . . .

. . . .

D. Filing of Appeals and Petitions to the ZBA

Appeals to the ZBA shall be taken within thirty (30) days from the date of the order or decision which is being appealed, by filing a notice of appeal . . . specifying the grounds thereof, with the City Clerk and [the Office of Planning and Community Development], who shall forthwith transmit copies thereof to such office or Board whose order or decision is being appealed, and to the ZBA. [S]uch officer or Board shall forthwith transmit to the ZBA all documents and papers constituting the record of the case in which the appeal is taken.

Article IV (Use Regulations), Section 7(1)(A) (General Provisions for Off-Street Parking and Loading, Application) of the Ordinance provides:

Any application for a permit for . . . the development of a land use that requires parking, or the modification of an existing parking area or structure, shall include a plan for parking and loading for the new or expanded facilities or areas in accordance with this Article. Such parking plans shall require approval of the Planning Board.

Article IV (Use Regulations), Section 7(1)(B) (General Provisions for Off-Street Parking and Loading, Jurisdiction) of the Ordinance provides, in part:

The Planning Board shall be the approving authority for parking lots of more than eight (8) spaces. Such approval shall be required prior to the issuance of the building permit . . . . Any project which has received approval under the site plan approval procedures, Article V, shall be deemed to have received parking lot approval under this Article . . . .

The procedures provided in Article V, including those for administration, fees, powers, hearing, and time limits shall apply to approvals by the Planning Board for parking lots under its jurisdiction.

Article V (Site Plan Approval), Section 5(3) (Application Review Process, Standards for Approval or Disapproval) states in part:

A. The Planning Board shall make a finding of approval, approval with conditions or disapproval. The Planning Board shall not disapprove an application for site plan approval except on the basis of specific written findings directed to one (1) or more of the standards as provided above. . . .

The first issue to be addressed is the jurisdiction of the Land Court to hear the appeal of the ZBA Decision. Defendants argue that the Planning Board is an improper party to this action based on G.L. c. 40A, § 8. The appeal of the Planning Board Decision to the ZBA involving the parking plan would not be a valid appeal under G. L. c. 40A, § 15 because the Planning Board Decision is not an appeal of a decision of an administrative officer. See Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 (2000). The Ordinance, however, confers jurisdiction to the ZBA over an appeal of a parking plan acted on by the Planning Board. As such, this court has jurisdiction to review the ZBA Decision under G.L. c. 40A, § 17, provided that Plaintiffs' appeal was timely.

Regarding the Appeal's timeliness, Plaintiffs argue that a written decision from the Planning Board is required for appeal of the parking plan denial, and analogize the parking plan approval to site plan approval. Plaintiffs cite Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 (1984), in support of their position that the time period for filing their appeal is triggered by a written decision. They also rely on Article IV, Section 7(1)(B) of the Ordinance, which states that "[t]he procedures provided in Article V [Site plan Approval], including those for administration, fees, powers, hearing, and time limits shall apply to approvals by the Planning Board for parking lots under its jurisdiction," and cite Article V, Section 5(3)(A), which requires written findings for site plan denials.

In response, Defendants state that the procedures for parking plans are in Article IV, whereas the Site Plan procedures are in Article V, and point out that Article IV, Section 7(1)(B) only references the portion of Article V, Section 3 titled "Procedures," which does not require a written decision for parking plans. Defendants, however, miss the direct connection between site plan review and parking plan review in a number of different sections of the Ordinance, including the section of Article IV which states that, "[a]ny project which has received approval under the site plan approval procedures, Article V, shall be deemed to have received parking lot approval under [Article IV]." A review of the Ordinance as a whole reveals that site plan review and parking plan review are interrelated.

On its face the Ordinance requires a written finding for site plan denials, Art. V, § 5(3)(A) ("The Planning Board shall not disapprove an application for site plan approval except on the basis of specific written findings . . . ."), and parking plan review is directly tied into site plan review. Ordinance, Art. IV, § 7. As discussed, supra, the Ordinance gives jurisdiction of the appeal of the Planning Board Decision to the ZBA, which is not based on the state statute, and the Ordinance incorporates the requirements of a site plan review to the parking plan review. [Note 6] Moreover, certain sections of the Massachusetts General Laws also require a written decision in specific situations involving local zoning bylaws. See e.g., Vokes, 18 Mass. App. Ct. at 479 (holding that the thirty-day appeal period of G.L. c. 40A, § 15, in context of G.L. c. 40A, § 7, is triggered on the date on which a zoning enforcement officer responds in writing to an enforcement request). [Note 7] Vokes, in requiring a written decision from the building inspector, ties section 7 of chapter 40A with sections 8 and 15. [Note 8] G. L. c. 40A, § 7 states:

If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.

"Not only is an interpretation of Sections 7, 8 and 15 which links the time for an appeal . . . to the date of the building inspector's written decision under Section 7 faithful to the reasonably plain wording of the statutes," Volkes reasons "but it also provides a means for the fair and practical administration of the provisions of c. 40A governing enforcement of a zoning bylaw at the local stage." Vokes, 18 Mass. App. Ct. at 478. This rationale also applies in the case of parking plan approval in the case at hand. As a result of the foregoing, I find that Plaintiffs' appeal of the Planning Board Decision was timely for it was filed within thirty days of the date of the Planning Board Decision.

Given that the Ordinance authorizes the ZBA to hear appeals from an order by the Planning Board under site plan approval, and the ZBA has not yet reviewed the Planning Board's decision, it is not this court's place to make a finding on the substance of the Planning Board's denial of the Application at this stage of the proceedings. It is hereby ORDERED that this case be remanded to the ZBA for a public hearing on the issue of whether the Planning Board's denial of the Application was valid. Notice of this public hearing shall be in accordance with governing law, and notice shall be served on all parties as legally required. The ZBA shall, upon completion of the public hearing, render and file with the town clerk, as required by law, a written decision within sixty days from the date of this decision. The parties shall file with this court, within five days after the ZBA files it decision with the town clerk, a joint written status report, giving details of the ZBA's action on remand, accompanied by a true copy of the ZBA decision. Furthermore, the parties shall attend a status conference scheduled for Tuesday, April 21, 2009, at 10:00 A.M. [Note 9]

This court shall retain jurisdiction over this matter for such further action as may be required, including any appeals which may be taken from or relating to the ZBA's decision. No party currently a party to this litigation who is aggrieved by the ZBA decision need initiate in this court a new lawsuit appealing the ZBA decision, but any such aggrieved party shall, within twenty days of the filing of the ZBA decision with the town clerk, file with this court (and serve on all parties) a proper motion for leave to amend the pleadings to assert a right to judicial review of the decision, with the form of the proposed amendment annexed, and file with the town clerk a written notice of having filed the motion to amend, accompanied by true copies of the moving papers.

The final issue this court must address is the capacity in which the ZBA shall sit on remand. Plaintiffs contend that the Application satisfies all of the technical requirements of the Ordinance and that none of the three reasons cited by the Planning Board support a denial as referenced in Prudential Ins. Co. of Am. v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , (1986). Defendants argue that the Planning Board Decision was warranted in light of deficiencies in the Application. Neither party specifically addresses whether the parking use is a use allowed by right; however, they both cite to the standard of review set forth in SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984), and its progeny. [Note 10] If the use is one allowed as of right, and if the specific criteria of the bylaw or ordinance are satisfied, a reviewing board lacks the discretion to deny approval, "but instead [is] limited to imposing reasonable terms and conditions on the proposed use." Id. at 106. However, as of right uses may be denied in limited circumstances, if such a use is "so intrusive on the interests of the public in one regulated aspect or another . . . rejection by the board would be tenable." Prudential, 23 Mass. App. Ct. at 279 n.9.

In light of the foregoing, Plaintiffs' Motion for Summary Judgment is ALLOWED,

excluding their request for costs and fees. [Note 11] Judgment shall issue upon resolution of all remaining issues.

Alexander H. Sands, III

Justice

Dated: February 5, 2009