Home JENNIFER DIRICO, HELEN K. GAVIN, and MILDRED M. LEONARDI v. TOWN OF KINGSTON, PAUL L. ARMSTRONG, in his capacity as Building Inspector and Zoning Enforcement Officer of the Town of Kingston, Mary O’Donnell and Robert Moakley, as Trustees of the O’DONNELL FAMILY REALTY TRUST and THORNDIKE DEVELOPMENT CORPORATION

MISC 07-359307

March 10, 2009


Scheier, C.J.


Plaintiffs initiated this action by filing a complaint pursuant to G. L. c. 240, § 14A, on November 14, 2007, challenging the adoption of an amendment to the Town of Kingston Zoning Bylaw (Bylaw) in accordance with G. L. c. 40R (40R Amendment). On December 11, 2007, Defendants filed a Motion to Dismiss. Plaintiffs opposed the motion through a written opposition filed on January 31, 2008. On March 7, 2008, this court (Lombardi, J.) held a hearing on Defendants’ motion, at which all parties were heard. On March 14, 2008, Plaintiffs filed a First Amended Petition to Determine Validity of Zoning By-Law (Amended Complaint). The Amended Complaint added two new counts to this action but did not add any factual allegations.

By Order dated March 24, 2008, this court (Lombardi, J.) dismissed counts I, II, and V of Plaintiffs’ Amended Complaint. On April 6, 2008, Defendants filed a Motion to Dismiss Count IV of the Amended Complaint. Plaintiffs opposed this second motion to dismiss through a written opposition filed on May 14, 2008. A hearing on the second motion to dismiss was held on June 2, 2008, at which all parties were heard. By order dated June 4, 2008, this court (Lombardi, J.) dismissed Count IV of Plaintiffs’ Amended Complaint. Following issuance of the two orders, Plaintiffs’ sole remaining challenge is Count III of the Amended Complaint, which seeks to invalidate the 40R Amendment on the basis of Plaintiffs’ allegation that the Town “failed to analyze and consider adequately relevant land use planning considerations including traffic impacts, the character of the neighborhood, the prevention of blight and pollution of the environment, and the encouragement of the most appropriate use of land throughout the town.”

On November 21, 2008, Defendants filed a motion for summary judgment on Count III of Plaintiffs’ Amended Complaint. Plaintiffs opposed this motion through a written opposition filed on December 22, 2008. A hearing was held on January 16, 2009, at which all parties were heard. The summary judgment record includes affidavits of Angus Jennings, Principal Planner for Concord Square Planning & Development, Inc.; Thomas Bott, Kingston Town Planner; Lloyd Geisinger, President of Thorndike Development Corp.; Plaintiff Helen K. Gavin; C. Diane Boretos, professional wetland scientist; and an authenticating affidavit of David Abbott, Esq., Plaintiffs’ counsel; as well as a copy of the Bylaw, in addition to the parties’ briefs and submissions filed in compliance with Land Court Rule 4. The material facts are not in dispute.

The Town of Kingston is a coastal community in southeastern Massachusetts that experienced a 60% growth in population from 1980 to 2000. Defendant Thorndike Development. Inc. (Thorndike) is a real estate development and construction company headquartered in Norton, Massachusetts. In February of 2006, the Town was approached by Thorndike about possibly adopting a zoning amendment that would create a smart growth zoning district, pursuant to G. L. c. 40R, on property located less than one-half mile from the Kingston MBTA station (Property). The Property consists of 109 acres and includes an excavated sand pit. Thorndike had acquired an option to purchase the Property and was interested in developing a smart growth development to be called 1021 Kingston Place (Kingston Place). As conceived, Kingston Place would consist of up to 730 residential units, 50,000 square feet of retail space, and 250,000 square feet of commercial space.

In February of 2006, the Town requested a preliminary letter of eligibility from the Director of Smart Growth Zoning at the Department of Housing and Community Development (DHCD) that the Property qualified as an “eligible location” under 760 CMR 59.04, the applicable regulation promulgated pursuant to G. L. c. 40R. Included in the Town’s submission was a certification of the amount of “developable land” in the proposed smart growth district. Under 760 CMR 59.02, “developable land” may not include “areas exceeding one-half acre of contiguous land that are . . . rare species habitat[s] designated under federal or state law.” After review, DHCD issued its preliminary Letter of Eligibility. The Town subsequently applied for and received a Priority Development Fund grant from DHCD for the purpose of planning a smart growth zoning district. The $50,000 grant was used to engage outside consultants who assisted in the process of creating design review standards and drafting the smart growth zoning bylaw. The Town then hired Concord Square Planning and Development, Inc. (Concord Square), which had played an active role in the Legislature’s adoption of G. L. c. 40R, and provides ongoing consulting to the Commonwealth Housing Task Force.

In June of 2006, the Planning Board appointed a 40R Design Review Drafting Committee (Design Review Committee) which worked closely with Concord Square and the Town Planner to develop design standards and draft a smart growth zoning bylaw. The Design Review Committee also worked closely with The Cecil Group, Inc., a design consultant. As part of its due diligence, the Design Review Committee conducted site visits to Thorndike’s smart growth developments in Norton and Quincy and met regularly through the summer of 2006 and into the fall. These meetings were televised and the meeting minutes and progress documents were made available on the Town’s website.

On March 19, 2007, the Planning Board approved the 40R design standards, which had previously been approved by DHCD. The design standards are set forth in an eighty-six page document which supplements the 40R Amendment and includes binding standards for compliance and non-binding principles for development, to be used by the Planning Board in reviewing projects proposed pursuant to the 40R Amendment. Between February of 2006, and April of 2007, the 40R proposal was reviewed, studied, and revised at numerous open meetings including seven community meetings, nine Board of Selectmen meetings, eight Water Commission meetings, ten meetings of the Sewer Commission, fourteen Planning Board meetings, one meeting of the Open Space Committee, two meetings of the Conservation Commission, one Master Planning Implementation Committee meeting, ten Design Review Committee meetings, one meeting of the Secure Energy Future Committee, and one meeting of the Finance Committee.

Throughout the 40R Amendment process the Town was assisted by outside engineering, architectural, design, financial, and legal consultants. Additionally, prior to the Town’s adoption of the 40R Amendment, Thorndike and the Town both commissioned studies and analyses, as well as peer reviews and independent studies, that included a traffic impact and analysis study dated January 31, 2006; a traffic impact and analysis study dated September 2006; a fiscal impact review and fiscal impact analysis presentation dated October 2006; a traffic peer review letter from Greenman-Pedersen, Inc., evaluating traffic studies prepared by Thorndike’s traffic consultant; fiscal impact analysis report dated November 2006; alternative improvement evaluation for Route 3 at Exit 8, dated December 2006; a traffic impact and analysis study dated February 2007; a fiscal impact review dated March 2007; a community information bulletin of March 2007, prepared by the Kingston Finance Committee; and a traffic peer review letter from Greenman-Pedersen, Inc,. dated March 26, 2007.

On or about June 29, 2006, the Town submitted its “Smart Growth Zoning Overlay District Program (c. 40R) Application Form” to DHCD. Included in the application was a calculation of the “developable land” based on a survey of the Property entitled “Existing Conditions Plan, Marion Drive, Kingston, Massachusetts,” prepared by Harry R. Feldman, Inc. The survey was commissioned by Thorndike and the Town accepted that calculation without performing an independent calculation of the developable land area. The application was approved by DHCD on April 4, 2007, and on April 9, 10, and 11, 2007, the Town debated the 40R Amendment which would add Section 4.15 “1021 Kingston’s Place Smart Growth District,” at its Annual Town Meeting. By the time the Town voted to approve the 40R Amendment, six hours of discussion and debate had taken place over three nights. During the 15-month process of preparing and adopting the 40R Amendment, the Town Planner determined that the benefits of the 40R Amendment would outweigh concerns over its impact on the community. He determined the benefits would include the creation of affordable housing, protection from Chapter 40B permit proposals, the imposition of exacting design standards, substantial mitigation payments and improvements by the developer, substantial financial incentives from the Commonwealth pursuant to Chapter 40R, significant infrastructure improvements and creation and preservation of parks and open spaces, and the development of a smart growth district that includes a mix of residential styles and affordability levels in a pedestrian-friendly setting close to public transportation.

The challenge to the 40R Amendment is before this court pursuant to Defendants’ Motion for Summary Judgment. “Rule 56 (c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal quotations omitted). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934)). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat'l Bank, 595 F.2d 994, 997 (5th Cir. 1979)).

In considering the materials in support of any 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.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The moving party bears the burden of affirmatively showing that there is no triable issue of fact, even if that party would not have such a burden if the case were to go to trial. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 644 (2002). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case. A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial.” Kourouvacilis v. GM Corp., 410 Mass. 706 , 711 (1991). “[A]lthough that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming.” Id. at 714.

The sole remaining count of Plaintiffs’ challenge to the Town’s 40R Amendment asserts that the Town failed to conduct adequate due diligence before adopting the 40R Amendment. Plaintiff’s burden is significant as “[t]he enactment of a zoning bylaw by the voters at town meeting is not only the exercise of an independent police power; it is also a legislative act.” Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 50 (2003). Therefore, it should not be undone unless it is arbitrary and unreasonable or substantially unrelated to the public health, safety, or general welfare. Id. at 51. Moreover, if the reasonableness of the amendment is even fairly debatable, the court must uphold its enactment. Id. (citing Crall v. Leominster, 362 Mass. 95 , 101 (1972)) (emphasis added); see, e.g., Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 , 427 (2004). In reviewing the adoption, the 40R Amendment is entitled to every presumption in its favor and the court must not substitute its judgment for that of the town. Andrews v. Town of Amherst, 68 Mass. App. Ct. 365 , 369 (2007). Consequently, if reasonable minds can differ as to whether the 40R Amendment should have been adopted based on the Town Meeting’s assessment of its benefit to the Town, then the amendment cannot be invalidated. Simon v. Town of Needham, 311 Mass. 560 , 564 (1942) (citations omitted.)

G. L. c. 40R was enacted “to encourage smart growth and increased housing production in Massachusetts.”

Smart growth is a principle of land development that emphasizes mixing land uses, increases the availability of affordable housing by creating a range of housing opportunities in neighborhoods, takes advantage of compact design, fosters distinctive and attractive communities, preserves open space, farmland, natural beauty and critical environmental areas, strengthens existing communities, provides a variety of transportation choices, makes development decisions predictable, fair and cost effective and encourages community and stakeholder collaboration in development decisions.

G. L. c. 40R. In providing for smart growth zoning, Chapter 40R provides a detailed framework for municipalities to follow when adopting a 40R amendment. A municipality must first obtain a determination from DHCD that the proposed smart growth district is an eligible location. The statute defines “eligible location” as “areas near transit stations. . . areas of concentrated development. . . [and] areas that by virtue of their infrastructure, transportation access, existing underutilized facilities, and/or location make highly suitable locations for residential or mixed use smart growth zoning districts.” Once DHCD makes its preliminary determination of an eligible location, the municipality must submit an application to DHCD. The application must contain: a map of the proposed district and its location relative to transit stations and water and sewer lines, a developable land plan, a plan showing the maximum residential density of the underlying zoning district, a plan showing the residential density through smart growth zoning, the proposed zoning ordinance, the text of the zoning ordinance for the underlying district, an assessment of the municipality’s housing needs, a showing of sufficient public notice, and a showing that the proposed district will not overburden the municipality’s infrastructure. 760 CMR 59.03(1). Additionally, DHCD must review the draft of the zoning bylaw to ensure that it complies with the requirements of G. L. c. 40R, §6. Section 6 requires that the bylaw provide for housing for the elderly and for persons with special needs, that at least 20% of all housing will be affordable, and that all housing will be consistent with neighborhood building patterns. G. L. c. 40R, § 6.

The record establishes that the Town engaged in an extensive and thorough review of the 40R Amendment before it was put to a vote at Town Meeting. The 40R Amendment was discussed at approximately seventy open public meetings and hearings over a fifteen month period. Studies of the impact of this amendment were commissioned by the Town and by Thorndike on traffic, financial, and environmental issues. Further, the record in this case establishes that DHCD analyzed the Town’s 40R Amendment in accordance with the statutory and regulatory requirements applicable to its review.

It is well-settled that where the municipality has engaged in “some meaningful analysis” of the potential effects of the amendment on the public health, safety, and welfare, the amendment should be upheld. Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 56 (2003). This court finds that the Town engaged in a meaningful analysis of the 40R Amendment prior to its adoption by Town Meeting.

Plaintiff has not put forth facts which compel a different view of the process leading to and including the Town Meeting adoption of the 40R Amendment. Conversely, the summary judgment record establishes that Plaintiffs will not be able to sustain their burden at trial that the Town “failed to analyze and consider adequately relevant land use planning considerations including traffic impacts, the character of the neighborhood, the prevention of blight and pollution of the environment, and the encouragement of the most appropriate use of land throughout the town.” The record clearly and overwhelmingly establishes that Plaintiffs will not be able to establish that this question is not “even fairly debatable.” See Durand, 440 Mass. at 51.

This determination, however, does not end this court’s inquiry because Plaintiffs have raised an additional challenge to the 40R Amendment. They contend that the Town failed to update DHCD as to a change in the area of “developable land” upon learning, in November 2006, that the Natural Heritage and Endangered Species Program (NHESP) had designated a portion of the Property as a Priority Habitat under the Massachusetts Endangered Species Act (MESA) in October 2006. As Plaintiff correctly asserts, the timing of this classification meant that the Town’s calculation of developable land area might have been incorrect at the time DHCD issued its letter of approval of the Town’s 40R application and at the time the 40R Amendment was adopted by Town Meeting. [Note 1] Even assuming that there was an error in the application to DHCD, Defendants argue, and this court agrees, that such an error does not invalidate the 40R Amendment.

Under 760 CMR 59.07 a municipality “that either contains a District that had been Approved by the end of the previous fiscal year ending on June 30, or had filed an application for a proposed District within that fiscal year” must file an update of the developable land area with DHCD by July 31st of each year. Other than that, there is no requirement in G. L. c. 40R that a town update its application to DHCD if and whenever the identification of a rare species habitat changes the calculation of the developable land area. Therefore, while the Town is under a continuing duty to inform DHCD of any changes in developable land area going forward, that duty to supplement pursuant to 760 CMR 59.07 had not yet arisen when the 40R Amendment was adopted at the Town Meeting. While Plaintiffs imply that the Town failed to update the DHCD application to protect the viability of its proposed smart growth zoning district, the motives of those voting at Town Meeting in support of the 40R Amendment cannot be considered by this court. Durand, 440 Mass. at 51; see also Morgan v. Banas, 331 Mass. 694 , 698 (1954) (“Courts cannot, for the purpose of determining the validity of legislation, receive evidence of the inducements and motives of the legislators in enacting it.”); Boston v. Talbot, 206 Mass. 82 , 91 (1910) (quoting Soon Hing v. Crowley, 113 U.S. 703, 710-711 (1885)) (“The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.”).

While Plaintiffs argue that the Town had a duty to supplement its application to DHCD upon becoming aware of the rare species habitat designation, this court can find no duty to supplement the application in the statute or regulations, other than that imposed by 760 CMR 59.07. Importantly, the approval of DHCD is not the final step for Thorndike in completing its proposed development. Indeed, there are many permits still required before Thorndike can begin its project, including permitting processes through which the specific question of impact on endangered species will be vetted.

The crucial inquiry for this court is whether Plaintiffs have proved “facts which compel a conclusion that the question [of the validity of the 40R Amendment] is not even fairly debatable.” Crall v. Leominster, 362 Mass. 95 , 103 (1972). On the summary judgment record, this court concludes that Plaintiffs have not met, and will not be able to meet, their burden at trial, and the adoption of the 40R Amendment must be upheld.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: March 10, 2009


[Note 1] Defendants neither concede nor dispute that the calculation of developable land changed after the certification of a rare species habitat by the NHESP, but they contend that it is immaterial to Plaintiffs’ challenge. This court must draw all inferences in favor of Plaintiffs, the non-moving party, in ruling on this motion. Therefore this courts takes as an undisputed fact that the calculation of developable land had changed prior to DHCD’s final approval and Town Meetings’ adoption of the 40R Amendment.