ERIC A. HARPER v. LARRY DORR, JAMES DOLE, and PHILL TAYLOR, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF GROVELAND, and the TOWN OF GROVELAND

This dispute arises out of the denial by the Groveland Zoning Board of Appeals of a special permit and variances from the Groveland Zoning Bylaw.

The Plaintiff, Eric A. Harper (“Plaintiff”) is the owner of property known as and numbered 10 Federal Way in Groveland, Massachusetts (Assessor’s Plat #49, Lot #5D). Said land is located in the Industrial District Use Zone C/ Aquifer Overlay District as defined by the Town of Groveland Zoning Bylaw. Plaintiff is appealing pursuant to G.L. c. 40 A, §17 the February 1, 2006 decision of the Town of Groveland Zoning Board of Appeals (“Defendant”) denying Plaintiff’s application for special permits and variances from certain provisions of the Groveland Zoning Bylaw. Plaintiff also challenges the validity of the Town of Groveland’s Zoning ordinance as a whole pursuant to G.L. c. 240, § 14A.

This appeal was commenced by the Plaintiff on February 22, 2006. On August 4, 2008, the Plaintiff filed a Motion for Summary Judgment. On September 22, 2008, the Defendants filed a Cross-Motion for Summary Judgment. Arguments on the Cross-Motions for Summary Judgment were heard and taken under advisement on November 20, 2008. Before discussing the merits of the Plaintiff’s Motion for Summary Judgment and Defendants’ Cross-Motion for Summary Judgment, the Court will summarize the relevant facts:

1. Plaintiff is the owner of 10 Federal Way in Groveland, Massachusetts (Assessor’s Plat #49, Lot #5D).

2. The aforementioned plot of land is located in the Industrial District Use Zone C/ Aquifer Overlay District as defined by the Town of Groveland Zoning Bylaw.

3. On or about April 10, 2003, Plaintiff filed an application with the Town of Groveland Zoning Board of Appeals requesting a special permit and variances.

4. On May 14, 2003, the Zoning Board conducted a public hearing on Plaintiff’s application.

5. In June 2003, the Zoning Board approved Plaintiff’s application for special permit and variance from the Groveland Zoning Bylaw.

6. Plaintiff did not build as provided by the decision of the Zoning Board within the time allowed.

7. On or about November 8, 2005, the Plaintiff again filed an application for special permit and variances.

8. On December 7, 2005 the Zoning Board conducted a public hearing on Plaintiff’s application for special permit and variances.

9. On February 1, 2006 by a vote of 5-0 the Zoning Board denied the application.

10. In its reasons for its decision on the 2005 application, the Zoning Board stated that, “although the Applicant (Plaintiff) contended that there were ‘unique circumstances relative to the soil conditions, shape and topography of the land,’ based upon the evidence presented, these ‘unique circumstances’ are not unique to this parcel and affect generally other parcels within the zoning district. The Board also found that a literal enforcement of the Zoning Bylaws would not present a substantial hardship, financial or otherwise to the applicant. The parcel appears to have beneficial uses available to the Applicant that would not require granting of the requested variances.” Groveland Zoning Bd. of Appeals, #2005-19 (November 8, 2005) (decision and notice of decision).

11. In addition, the Board stated, “The Applicant (Plaintiff) has requested a variance to reduce the parking set backs from ten (10) feet to a minimum of five (5) feet and to increase the allowable coverage of the parcel by impervious material from fifty percent (50%) to seventy-two (72%) percent of the parcel. It is noted that in addition to a variance, a Special Permit will be required from the Planning Board as the requested coverage is greater than fifteen percent (15%). The parcel is located within the Aquifer Overlay District and it is found that the requested variances cannot be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning Bylaws.” Id.

12. In its decision, the Board acknowledged the previous issuance of a special permit and variances to the Plaintiff, but stated that said special permit and variances had lapsed and that Plaintiff must once again meet his burden in order to be afforded zoning relief. This Appeal Followed.

Discussion

Standard of Review on Summary Judgment

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); Ng Bros. Constr., Inc. v. Craney, 436 Mass. 638 , 643-44 (2002). Whether a fact is material or not is determined by the substantive law, and “[a]n adverse party may not manufacture disputes by conclusory factual assertions.” Ng Bros., 436 Mass. at 648; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). With respect to any claim on which the moving party does not have the burden of proof at trial, movant 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 Commc’ns 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).

Here, the Court finds that there are no genuine issues as to any material facts in this case, and is satisfied that this matter is ripe for summary judgment.

Issues Before the Court

This case presents two issues; first, whether the decision of the Defendant Board to deny Plaintiff’s application for a special permit and variance was in excess of its authority, and second, whether the Town of Groveland’s Zoning Bylaw is a valid zoning bylaw when viewed in the light of SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984). Because a claim alleging that the Zoning Board overstepped its authority in denying the Plaintiff a special permit and variance would be moot if the Town of Groveland’s Zoning Ordinance is invalid, the Court will begin by determining the bylaw’s validity under SCIT, 19 Mass. App. Ct. 101 (1984).

Validity of the Town of Groveland Zoning Bylaw

SCIT

Chapter 40A, § 4 provides that “[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.” 40A, § 4. Euclidian Zoning [Note 1] ensures that, “in general, each land use will have a predictable character and that the uses of land can be sorted out into compatible groupings.” SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. at 107. The purpose underlying this uniformity requirement is equal treatment of all land in similar circumstances. Id.; Everpure Ice Mfg. Co. v. Bd. of Appeals of Lawrence, 324 Mass. 433 , 439 (1949).

Accordingly, the Courts have interpreted these principles underpinning § 4 as a limitation on municipal zoning power. SCIT, 19 Mass. App. Ct. at 107. Specifically, once a zoning district is established with certain uses allowed as of right, a municipal board cannot exercise discretionary authority to permit or deny such uses, and any bylaw purporting to authorize such power is void. See id. at 108. Such discretionary power would confer virtually unlimited authority, which could be applied to treat land disparately, not based on a valid difference. Id. This is de facto spot zoning or altering the characteristics of the zoning districts, a legislative power, and not one properly conferred on a discretionary board. Id., quoting Smith, 319 Mass. 341 , 344 (1946).

Plaintiff asserts that the Town of Groveland Zoning Bylaw §§ 900, 901, 901.3 and 1700 in particular, violate the Appeals Court’s decision in SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984) and is, therefore, invalid. The relevant portions of the bylaws are as follows:

900. Industrial District Uses- Zone C

901. In business [industrial] districts, no building shall be erected or altered, and no building or land shall be used for any purpose that is injurious, noxious, or offensive to the neighborhood, by reason of the emission of odor fumes, dust, smoke, vibration, noise or other cause, existing of potential, or for any purpose except the following, and then only by a special permit from the zoning board of appeals after a public hearing. The zoning board of appeals shall have the power to: set restrictions and conditions; hours of operation; signs-copy, type, size and number; off-street parking spaces; outside lighting; road setbacks; side lot lines; rear lot lines, buffer zones; require written procedures for the storage or disposal of hazardous materials; and set fines for permit violations.

901.1. Any permitted or special permit use in the residential districts or business district, except the erection of any residential dwellings with the provision that a limit of one (1) single-family dwelling unit in the same building as a business is permitted.

901.2 No Industrial or manufacturing use which will not be seriously detrimental or offensive to its district or adjoining districts, or tend to reduce property values in said districts.

901.3 Within the Aquifer Protection District (see section 1700 of these By-laws) the Zoning Board of Appeals shall consider and apply the Aquifer Protection By-law before granting and Special Permit. Groveland, Mass. Zoning Bylaws, § 901.3 (2002).

1700. Aquifer Protection District Bylaw (Although Plaintiff challenges validity of § 1700, challenges to specific subsections are not named in the complaint. The length of §1700 prevents its complete reproduction here.)

Groveland, Mass. Zoning Bylaws, §§ 900-901.3, 1700 (2002).

Plaintiff contends that under SCIT, the Town of Groveland’s Zoning Bylaw is arbitrary and unreasonable because the Bylaw requires the issuance of a special permit prior to any construction in the relevant zoning district. More specifically under §§ 900, 901, 901.3 and 1700, the Town of Groveland Zoning Bylaw requires a special permit prior to commencing construction in an Industrial C or Aquifer Overlay district.

In SCIT, the Appeals Court invalidated the town of Braintree’s Zoning Bylaw specifically because the Bylaw subjected all uses in the business zoning district to a discretionary special permit. 419 Mass. App. Ct. at 101. The Court determined that the requirement of a discretionary special permit, necessary under a bylaw which afforded no criteria for issuing said permit, was as a matter of law arbitrary, unreasonable and invalid. See id. at 111. As the Defendants accurately point out, the holding in SCIT invalidated the Town of Braintree’s Zoning Bylaw insofar as it afforded the permitting body the discretionary power to issue or deny a special permit. In instances where a town’s bylaw requires site plan review of all uses in a district and does not afford a permitting body the discretionary authority to approve or deny a special permit, the bylaw has been upheld. See Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 (2008); see also Y.D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 (1970); KCI Mgmt., Inc. v. Bd. of Appeals of Boston, 54 Mass. App. Ct. 254 (2002); Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 (1986).

The Defendant Board contends, and the Town of Groveland’s Zoning Bylaw supports the conclusion, that much like site plan review, upon a showing that the proposed use satisfies the requirements for the zoning district, the authority of the Board is limited to the reasonable regulation of the use; it may not arbitrarily deny the issuance of the permit.

It is the ruling of this Court that the Town of Groveland’s Zoning Bylaw adheres to the principles set forth by the Appeals Court in SCIT, and is valid.

Denial of Plaintiff’s Application for Special Permit and Variances

Having decided that the Town of Groveland’s Zoning Bylaw is valid, the question is now whether the decision of the Groveland Zoning Board of Appeals to deny the Plaintiff’s application for a special permit and variances was in excess of its authority.

G. L. c. 40A § 17 Appeals Standard of Review

G. L. c. 40A, § 17 provides, “[t[he court shall hear all the evidence pertinent to the authority of the… special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of… such special permit granting authority…” 40A, § 17. The courts have held that an appeal pursuant to G.L. c. 40A, § 17 is a de novo review of municipal board’s decision. Josephs v Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32, review denied 408 Mass. 1103 (1990); see id. However, the review is somewhat circumscribed by the simultaneous obligation to pay deference to the decision of the municipal board in the interpretation of its bylaw. See S. Volpe & Co. Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360, review denied 370 Mass. 868 (1976). The Court may overturn the board’s decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). However, where the court’s findings of fact support any rational basis to support the municipal decision, the decision must stand. Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 (1969); Britton, 59 Mass. App Ct at 75; Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 487 (1979).

In challenging the decision of the Defendants to deny the special permit and variances, the burden is on the Plaintiff to put forth evidence which demonstrates that the decision of the Board was made “based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Board of Appeals of Duxbury, 365 Mass. 635 , 639 (1970).

The Board’s decision states that Plaintiff applied for variances from the parking set back requirement and the impervious material limitation. Groveland Zoning Bd. of App., #2005-19 (November 8, 2005) (decision and notice of decision). In its evaluation of the application for these variances, the Board found that the Plaintiff was unable to show either unique circumstances relative to the soil conditions, shape and topography of the land, or hardship, financial or otherwise. Id. From this determination, the Board denied the Plaintiff’s application for variances. Id.

The Plaintiff has submitted no evidence to this Court that would suggest that the factual determination of the Defendant Board was based on a legally untenable ground, or that it was unreasonable, whimsical, capricious or arbitrary.

Plaintiff states that the Defendant Board’s denial of the special permit and variances must be considered arbitrary and capricious because it had previously granted “the same relief to Plaintiff in 2003 that it denied in 2005, based on the same facts and conditions.” (Pl’s. Mem. Summ. J. 5) Furthermore, Plaintiff contends that it was the change in the membership of the Board which lead to the denial of the most recent application for zoning relief, and, therefore, that he should once again be awarded the special permit and variances he was awarded in the past. This argument appears to be asserting that the decision of the Defendants to deny zoning relief must be deemed arbitrary and capricious on the grounds that it violates a doctrine of municipal estoppel.

It is the law of this Commonwealth that a municipality may not be estopped from the proper enforcement of its Zoning Laws based on prior municipal decisions. Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 163 (1962); Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 167 (1977) As such, the decision of the Defendant Board may not be overturned on estoppel grounds. The Board had the right to change its mind.

The Plaintiff has not met his burden by proving that the Town of Groveland Zoning Board of Appeals based its decision on grounds which were legally untenable, unreasonable, whimsical, capricious or arbitrary.

Decision of the Court

Based on the above, the Court hereby DENIES Plaintiff’s Motion for Summary Judgment and ALLOWS Defendants’ Cross Motion for Summary Judgment. The decision of the Zoning Board of Appeals denying Plaintiff’s applications must be upheld.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: February 20, 2009