MERRIMAC PLANNING BOARD v. JOSEPH C. MORAN, ARTHUR AMIRAULT, JOSHUA JACKSON, and SEAN SCOTT, as Members of THE ZONING BOARD OF APPEALS OF THE TOWN OF MERRIMAC, and L.T., LLC

Merrimac Planning Board v. The Zoning Board of Appeals of the Town of Merrimac was commenced on March 12, 2007, seeking to annul a decision of the defendant ruling that the Merrimac Building Inspector acted appropriately in not requiring a special permit or site plan review for demolition and construction on a parcel of real property, known as and numbered 3 Central Street in Merrimac. Misc. Case No. 342752

Casey v. the Zoning Board of Appeals of the Town of Merrimac was commenced on March 12, 2007, seeking to annul the same decision of the defendant. Misc. Case No. 342769

On April 5, 2007, plaintiffs in Casey filed a motion to consolidate the two cases, which the Court (Trombly, J.) allowed.

On June 6, 2008, Defendant L.T., LLC filed a motion for summary judgment. Plaintiffs opposed the motion on July 7, 2008, and filed a cross-motion for summary judgment. On July 7, 2008, defendant filed an opposition to the plaintiff’s cross-motion. The motions were argued on August 7, 2008, and are the matters presently before the Court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Defendant, L.T., LLC (Defendant L.T.) is the owner of a parcel of land, known as and numbered 3 Central Street in Merrimac (the L.T. Property).

2. On or about July 28, 2006, Defendant L.T. filed an application for Special Permit and Site Plan Review with the Merrimac Town Clerk for demolition of an existing building and construction of a new building on the L.T. Property.

3. The application proposed mixed-use building consisting of commercial space on the first floor and twelve residential condominium units on the second and third floors (the Proposed Development).

4. The L.T. Property lies within the Village Center District, pursuant to the Town of Merrimac, Massachusetts Zoning Bylaw.

5. On or about July 28, 2006, Defendant L.T. informed the plaintiff, Merrimac Planning Board that the Planning Board’s consulting engineer, WC Cammett, PE, had a conflict of interest and requested that the engineer recuse himself from the plan review.

6. As a result, the Planning Board sought a new consulting engineer.

7. At sometime after Defendant L.T. filed the application, the Planning Board was advised that Defendant L.T. questioned whether the Proposed Development was subject to the requirement of a grant of a special permit.

8. As a result, the Planning Board consulted town counsel.

9. By September 26, 2006 the Planning Board had not acted to approve or deny the application. Instead, at the public hearing on the application scheduled for that day, the Planning Board stated that it was seeking a new consulting engineer and continued the hearing.

10. On October 20, 2006, Defendant L.T. filed a request for zoning interpretation with the Merrimac Building Inspector. By letter dated November 21, 2006, the Building Inspector stated that a special permit was not required for the Proposed Development and that the Site Plan Approval was constructively granted.

11. On or about November 27, 2006, Defendant L.T. withdrew its application for a special permit.

12. On or about November 27, 2006, Defendant L.T. filed a request that the Town Clerk endorse a certificate of constructive approval of the site plan.

13. On December 20, 2006, the Planning Board appealed the decision of the Building Inspector to the Zoning Board of Appeals of the Town of Merrimac.

14. At a public hearing on February 7, 2007, the Zoning Board voted to uphold the decision of the Building Inspector.

15. Four (4) members of the Zoning Board voted on the appeal; of the four, two were: Sean Scott and Arthur Amirault.

16. Arthur Amirault is the father of Ajprilj Amirault. Ms. Amirault rents an apartment located at 24 School Street in Merrimac, owned of record by the president of defendant, L.T., LLC, Anthony McDonough.

17. Sean Scott resides at 3 Central Street in Merrimac, the property owned of record by defendant, L.T., LLC and the subject of the Proposed Development.

18. Neither Mr. Amirault nor Mr. Scott disclosed this information or recused himself from the Zoning Board proceedings prior to the vote.

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I. JURISDICTION

As a threshold issue, plaintiffs argue that of the four members of the Zoning Board of Appeals voting unanimously to uphold the decision of the Merrimac Building Inspector, two had conflicts of interests, which were not disclosed. Plaintiff concludes that the appeal was never properly adjudicated by the Zoning Board and, therefore, is not properly before this Court. Plaintiffs do not cite their basis for this claim, and the Court is therefore forced to speculate.

Plaintiffs firstly take issue with board member Arthur Amirault. Plaintiffs allege that Mr. Amirault’s daughter, Ajprilj Amirault rents an apartment from Defendant L.T.’s president, Anthony McDonough. This connection is fairly attenuated and, in the opinion of the Court, not sufficient to show that Mr. Amirault was improperly influenced.

Plaintiffs’ second issue is with board member Sean Scott. Plaintiffs allege that Mr. Scott resides at the location of the Proposed Development. In neither case do plaintiffs produce affirmative evidence of these board members’ malfeasance. Under G.L. c. 268A, § 23, a municipal officer is prohibited from accepting compensation for services incompatible with his or her official duties as well as from using his or her official position to secure privileges which would not otherwise be available to him or her. 268A, § 23. Plaintiffs have not explicitly alleged such wrongdoing.

Chapter 268A, § 23 further prohibits a municipal officer from:

“act[ing] in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.”

Id. Unlike other sections of G.L. c. 268A, which require a finding of receiving compensation or having a financial interest, § 23 imposes a reasonable person test.

In the instant matter, plaintiffs have done nothing more than state that Mr. Scott and the Proposed Development share a residential address. I cannot conclude that a reasonable person would believe that Mr. Scott was so influenced by the effect of this development on his home, that he could not separate his bias in this regard from his duties as member of the Zoning Board of Appeals. See Boothroyd v. Zoning Bd. of Appeals of Amherst, 11 LCR 192 , 194 (2003) (Misc. Case No. 278308 and 279352) (Sands, J.). Nevertheless, even if it did, such conduct would be subject to private sanctions and would not result in an overturn of the decision. See Id. Accordingly, I rule that the Zoning Board of Appeals of the Town of Merrimac properly adjudicated the appeal, and therefore, the matter is properly before this Court.

II. ALLOWED AS OF RIGHT

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Anderson v. Liberty, 477 U.S. 242, 247-48 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Id. at 248. In order to determine if a dispute about a material fact is genuine, the court must decide whether “[…] the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Id.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it 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 Communications 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). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a 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. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “[…] pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “[…] pleadings, [Note 1] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with […] affidavits, if any […].” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).

An appeal pursuant to G.L. c. 40A, § 17 is a de novo review of a 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 (1990), review denied 408 Mass. 1103 (1990). However, the review is somewhat circumscribed by the simultaneous obligation to pay due deference to the decision of a local municipal board in its interpretation of the bylaw. See S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976), review denied 370 Mass. 868 (1976). The board's decision may be disturbed only if it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Subaru of New England., Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979).

Defendants firstly contend that the Proposed Development is permitted as of right pursuant to the Town of Merrimac, Massachusetts Zoning Bylaw. Art. 8 of the Merrimac Zoning Bylaw establishes a Village Center District. Article 8. The purpose of this zoning district is, among others, to “[…] provide goods and services used predominantly by residents of the Town, and provide a village that encourages people to live and work in the community.” § 8.1.

The bylaw prohibits all uses and structures in the Village Center District except those explicitly provided for. Id.; § 8.4.10. Section 8.2 delineates those uses and structures allowed by right. § 8.2. These include certain commercial uses and structures as well as “Residential and Accessory Uses.”

The Proposed Development is for a mixed use commercial and residential development. Plaintiffs argue that the Village Center District does not explicitly allow a use or structure combining commercial and residential uses. This argument appears to be a somewhat inflexible interpretation of the provisions of the bylaw. The purpose of the Village Center District clearly intends a neighborhood combining both residential and commercial structures and uses. More persuasively, those uses and structures allowed as of right include both certain commercial and residential, separately. It is somewhat disingenuous and unreasonable to suggest that where the Town might allow a developer to construct residential and commercial structures side-by-side, it would not allow them in a single structure.

Moreover, § 8.2.5.1 of the bylaw allows by right “Accessory dwelling unit above the ground floor of a building occupied by a minimum of 30% commercial uses.” § 8.2.5.1. Plaintiffs argue that the Proposed Development is not such a dwelling unit. While it is true that the Proposed Development does not appear to fit the definition of “Accessory Dwelling Unit” in the bylaw, this seems to be the result of poor legal drafting. Article 2 defines an “Accessory Dwelling Unit” as: “A dwelling unit contained within or being an extension of a single-family STRUCTURE.” Art. 2. These two provisions have obvious discrepancies. An “Accessory Dwelling Unit” cannot easily be both accessory to a single-family structure and contained in an otherwise commercial building. It is clear that the definition of “Accessory Dwelling Unit,” at least as it is used in § 8.2.5.1, is a dwelling unit accessory to the remainder of the structure, whether residential or commercial. I find it likely that the drafters of this section intended to provide for a mixed-use residential and commercial structure. This is emphasized by the fact that the bylaw requires the building to contain at least thirty percent commercial uses, meaning that up to seventy percent of the structure may contain non-commercial, residential uses. Accordingly, I rule that the Proposed Development is allowed as of right, pursuant to § 8.2.5.1 of the Merrimac Zoning Bylaw.

Plaintiffs argue that the Proposed Development constitutes new construction or reconstruction of an existing building and therefore requires a special permit. Section 8.3 of the bylaw delineates those uses and structures allowed by special permit in the Village Center District. § 8.3. Section 8.3.11 includes “[n]ew construction or substantial alteration or reconstruction of an existing building.” § 8.3.11. However, this section does not apply to the Proposed Development. The Proposed Development, as previously ruled, falls under a category of uses and structures allowed as of right. Section 8.2 does not provide for any exceptions nor reference to § 8.3 as exceptions to those uses and structures that would otherwise be allowed as of right. Consistency requires that §§ 8.2 and 8.3 be read independently. A use or structure allowed as of right is just that, and cannot be subject to special permit simply because it may fall under a provision of § 8.3 as well. Such an interpretation would serve to invalidate certain provisions of § 8.2 and undermine the purpose of the separately defined allowances.

Moreover, as will be discussed further below, a broad application of § 8.3.11, subjecting all construction to special permit where such use or structure would otherwise be allowed as of right, is a violation of G.L. c. 40A, §§ 4 and 9. See 40A, §§ 4, 9; Smith v. Bd. of Appeals of Fall River, 319 Mass. 341 (1946); SCIT v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984).

III. SPECIAL PERMIT

Defendant contends that the effect of §§ 8.3.11 and 8.9.8 of the Merrimac Zoning Bylaw is to make every use in the Village Center District subject to the grant of a special permit by the Merrimac Planning Board and therefore in violation of G.L. c. 40A, §§ 4 and 9, void, and beyond the authority of the Planning Board.

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 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, 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 confers 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. at 344.

In the instant matter, the Merrimac Zoning Bylaw establishes the Village Center District and delineates those uses that are allowed as of right in § 8.2. Independently, §§ 8.3.11 and 8.9.8 subject all development in the district to a special permit process. These provisions authorize the Merrimac Planning Board beyond the limitations of G.L. c. 40A, § 4. Accordingly, to the extent that these provisions apply to uses and structures allowed as of right in the Town of Merrimac, they are void. Furthermore, the decision of the Zoning Board of Appeals of the Town of Merrimac is affirmed.

Plaintiffs also contend that G.L. c. 40A, § 4 does not authorize municipalities to require special permits for structures. However, as the Court has ruled that the Proposed Development is allowed as of right and not subject to special permit, this issue is moot and I do not decide it here.

IV. CONSTRUCTIVE APPROVAL

Section 19.10.2.2 states that when a site plan is submitted for approval, “[i]f no action is taken within 60 days, the application shall be deemed approved as submitted.” § 19.10.2.2. In the instant matter, Defendant L.T. submitted its application for site plan review to the Merrimac Town Clerk on July 28, 2006. The Site Plan Review Committee had not acted on the application on or before September 26, 2006—the sixtieth day. It is clear that the application was constructively approved. Accordingly, I rule that the decision of the Merrimac Zoning Board of Appeals is affirmed.

Plaintiffs argue that the circumstances surrounding the Planning Board’s review of the application merit an extension of time set for review. Specifically, plaintiffs argue that applicant’s consulting engineer informed the Planning Board that the town’s designated consulting engineer had a conflict of interest. The Planning Board, therefore, had to seek a new engineering firm for consultation. Plaintiffs also argue that because Defendant L.T. was questioning whether a special permit was required, the Town sought legal counsel. These matters not having been resolved in time for a public hearing scheduled for September 26, 2006, the Planning Board continued the hearing. The Court is not persuaded by these excuses for inaction. The timing requirements of town bylaws for municipal action on review applications are strict and stringently adhered to by the Courts. While it is conceivable that an applicant’s actions could be so egregious as to allow an exception to a strict application of the review period, the defendant’s actions were not so here. Despite these alleged extreme circumstances, the Planning Board did not seek an extension of time to conduct the review. In fact, in contradiction of the argument that defendant is to blame, plaintiffs concede that the Planning Board did not appreciate the sixty-day review period. The board’s inability to carry out its duties within the time set by its own bylaw is no reason to overturn the constructive approval that resulted.

CONCLUSION

For the foregoing reasons, this Court concludes that the Proposed Development is a use and structure allowed as of right, pursuant to § 8.2.5.1 of the Town of Merrimac, Massachusetts Zoning Bylaw. The Proposed Development is a mixed-use residential and commercial development, which is explicitly included in the list of allowed as of right uses in the bylaw. Furthermore, the Proposed Development is not subject to the special permit process as applied by §§ 8.3.11 and 8.9.8. These sections purport to make all construction subject to the grant of a special permit. These provisions are in violation of G.L. c. 40A, §§ 4 and 9 and to the extent that they apply to uses and structure allowed as of right in the Town of Merrimac, they are void. Accordingly, the decision of the Town of Merrimac Zoning Board of Appeals is hereby AFFIRMED.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: January 28, 2009