MISC 08-389021

February 10, 2010


Trombly, J.


Plaintiff commenced this case on December 10, 2008 by filing a Complaint brought pursuant to G.L. c. 40A, § 17 and G.L. c. 240, § 14A, seeking judicial review of a decision of the Brockton Zoning Board of Appeals (ZBA) interpreting Article III, Section 27-18 and Article IX, Section 27-54 of the Brockton Zoning Code (Zoning Code) to not include artificial turf and declaring, therefore, that Plaintiff is not in compliance with the Zoning Code, and also seeking a determination of the validity of Article III, Section 27-18 of the Brockton Zoning Code as applied to his property.

Plaintiff filed a Motion for Summary Judgment on October 26, 2009. Plaintiff also filed the following documents in support of its motion on the same day: Statement of Material Facts in Support of Plaintiff’s Motion for Summary Judgment; Brief in Support of Plaintiff’s Motion for Summary Judgment; Affidavit of John E. McCluskey, Esq.; and Affidavit of Ronen Drory in Support of Motion for Summary Judgment and to Supplement Statement of Material Facts. The Defendants filed an Opposition to Plaintiff’s Motion for Summary Judgment and Cross Motion for Summary Judgment on January 25, 2010 as well as a brief supporting that opposition and motion. The motions were argued before the Court and were taken under advisement during a hearing held on February 4, 2010.

The Court finds that the following facts are not in dispute.

1. The Plaintiff recently constructed a car wash located at 245 North Pearl Street in Brockton, MA.

2. The location of this property is along a street with high traffic volume.

3. As part of the building process, the Plaintiff was granted a variance and a special permit to construct a car wash.

4. Also, as part of the building process, the Plaintiff submitted a site plan to the City of Brockton Planning Board indicating the areas that would be used to comply with the “green space” requirement imposed by Article III, Section 27-18 of the Zoning Code but not indicating what materials would be placed in those areas. The plan legend showed this space as “Snow Storage Green Areas.”

5. The Plaintiff was given site plan approval by the City of Brockton Planning Board.

6. The Plaintiff installed artificial turf in the areas indicated for “green space” on the approved site plan.

7. On September 4, 2008, the Plaintiff applied for an occupancy permit which was denied because the City of Brockton Building Inspector determined that artificial turf did not conform to the “green space” requirement of Zoning Code Article III Section 27-18.

8. The City of Brockton Building Inspector issued a temporary certificate of occupancy in order that the Plaintiff could open and operate the car wash while seeking approval of the ZBA that the artificial turf satisfies the “green space” requirement.

9. The Plaintiff filed an application with the ZBA seeking a determination as to its compliance with the “green space” requirement.

10. In a decision dated November 12, 2008, and filed with the Brockton City Clerk on December 2, 2008, the ZBA unanimously decided that the Plaintiff’s use of artificial turf does not comply with the Zoning Code.

11. The Brockton City Council Ordinance Committee met on December 16, 2008 to discuss a proposed amendment to Article III, Section 27-18 of the Zoning Code that would allow artificial turf to satisfy the “green space” requirement. The Committee did not take any action at this meeting or since that time.


Standard of Review

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 viewing the record before it, the court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

General Laws chapter 40A, § 17 provides in relevant part that “[t]he court shall hear all evidence pertinent to the authority of the board or 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 board or special permit granting authority or make such other decree as justice and equity may require.” The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to chapter 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances, the trial court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

Therefore, 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); accord MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.


The Plaintiff argues that Article III, Section 27-18 of the Brockton Zoning Code is unconstitutionally vague, because the term “green areas” is not defined and does not have a well-understood common meaning, making its application to this property a violation of its due process rights under Articles 1, 10, and 12 of the Declaration of Rights of the Constitution of Massachusetts and/or under the Fourteenth Amendment of the Constitution of the United States. The Plaintiff further argues that, even if the section is not unconstitutional, the application to its property was arbitrary, capricious, and legally untenable in light of the intent of the section. These issues turn solely on the interpretation of the Zoning Code and do not involve any dispute of material fact. Therefore, the issues are appropriate for summary judgment.

There is a well recognized presumption of validity with respect to local zoning ordinances. Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221 , 233 (1972). The Plaintiff has the “heavy burden” of showing that the ordinance is in conflict with the applicable constitutional provisions. Id. An ordinance is unconstitutionally vague if “persons of common intelligence must necessarily guess at its meaning and differ as to its application.” Commonwealth v. Jaffe, 398 Mass. 50 , 54 (1986) (citation omitted). That is, whether the essential terms have a well-understood common meaning and whether there is an identifiable standard as to its application. Fordham v. Butera, 450 Mass. 42 , 47 (2007). This does not mean that all words used in the ordinance must be defined therein or preclude some questions from being decided only upon application to particular circumstances, but if “the core concept is indecipherable the court will not supply one of its own creation.” Fogelman v. Town of Chatham, 15 Mass. App. Ct. 585 , 589 (1983).

Construing the meaning of a zoning ordinance is a question of law and principles of statutory construction are used to ascertain the intended meaning. “The object of all statutory construction is to ascertain the true intent of the Legislature from the words used.” Champigny v. Commonwealth, 422 Mass. 249 , 251. The language of a statute is the main source of insight into the intent of the legislature. Commonwealth v. Gove, 366 Mass. 351 , 354 (1974). The statute’s plain meaning is honored if its language is clear and unambiguous, unless a “literal construction would yield an absurd or unworkable result.” Commonwealth v. Millican, 449 Mass. 298 , 301 (2007); Dept. of Cmty. Affairs v. Mass. State College Bldg. Auth., 378 Mass. 418 , 427 (1979). Only if the language of the statute is inconclusive in determining the intent of the legislature will the Court look to extrinsic sources for assistance in interpretation. Int’l Fidelity Ins. Co. v. Wilson, 387 Mass. 841 , 854 (1983). Because the meaning of “green space” in Section 27-18 can be determined by the plain meaning of the terms and the context in which they are used, the Court does not rely on any extrinsic evidence in the record.

“Green space” is not defined within the Zoning Code and the Court agrees that there is no “well-understood common meaning” of the term. [Note 1] However, the meaning of this term can be ascertained from the context of the section itself.

Article III, Section 27-18 is entitled “Maximum Coverage” and in its first paragraph states that principal and accessory buildings or structures cannot cover more land than that allowed in each zone. The purpose behind maximum lot coverage provisions is to reduce the amount of impervious surfaces on a given lot so that there is enough area to absorb stormwater on-site rather than allowing run-off which may cause pollution in the municipal water system or overburden the municipal storm drainage system. From this context, it is clear that the primary purpose of requiring “green space” under Section 27-18 is to provide another mechanism to reduce stormwater impacts on the city’s systems, in addition to maximum lot coverage. This purpose is confirmed by the second sentence of the second paragraph which states that the green space shall not be paved or hardtop and shall be used for storm drainage purposes.

Another purpose for maximum lot coverage provisions is to create more aesthetically pleasing lots. This purpose is also confirmed by the second sentence of the second paragraph by using the term “landscaping.” However, the well-understood meaning of “to landscape” is “to adorn or improve by contouring the land and planting flowers, shrubs, or trees.” The American Heritage Dictionary of the English Language (1981). This definition indicates that live plant material is required. Requiring live plantings also furthers the purpose of minimizing stormwater impacts because live plants help reduce soil erosion caused by runoff but also take up some of the water.

The Plaintiff argues that the artificial turf is not pavement or hardtop, is aesthetically pleasing, and allows stormwater to penetrate into the soil underneath, thereby satisfying the only logical meaning behind the provision. However, as combined with the term “landscaping,” the Court understands “green space” to necessarily consist of live plantings. The Court is sensitive to the problems that the Plaintiff has identified with maintaining live plantings along a high-traffic way subject to winter plowing and salting. However, the Court does not find that this section requires grass or other sensitive materials; it simply must be some kind of live plantings that will allow stormwater drainage and provide some adornment or improvement.

The Plaintiff also argues that because artificial turf is becoming more widely accepted in various landscaping applications, including where there is a demand for grass but where heavy use or environmental impacts may make maintaining grass impossible, the meaning of “landscaping” should include artificial turf. The only examples that Plaintiff cites, however, are athletic fields and the City of Los Angeles. Plaintiff’s site is neither heavily used as an athletic facility is, nor subject to the extreme drought conditions of Los Angeles. While the Court does not dispute the rising popularity of artificial turf and the increasing sophistication of its durability and permeability, the Court could not find any case law on the matter. The parties were equally unsuccessful in finding case law on this question. The well-understood, common meaning of “landscaping” simply does not yet contemplate using artificial materials. While the definition may eventually evolve to incorporate these materials, it has not currently done so.

Therefore, based on the well-understood, common meanings of the words used in Article III, Section 27-18 of the Zoning Code and the intent of the same, the Court finds that this ordinance is not unconstitutionally vague and does not deprive the Plaintiff of its due process rights because persons of common intelligence do not have to guess at its meaning and the application has an identifiable standard. Furthermore, the current interpretation by the ZBA, requiring live plantings, is not arbitrary and capricious because it is based on the well-understood common meaning of the words in the ordinance. This interpretation has a rational basis, is reasonable, and is given deference. [Note 2]


For the foregoing reasons, this Court concludes that summary judgment is appropriate in this case and is granted to the Defendants.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: February 10, 2010


[Note 1] The Zoning Code appears to use the terms “green space” and “green areas” interchangeably. In the second paragraph the Zoning Code states “Every lot shall contain a certain percentage of space reserved for green areas.” The Section then lists the requirements in a table titled “Green Space Requirement Per Zoning Classification.” The Court understands these two terms to be interchangeable.

[Note 2] There is disagreement as to how diligently the ZBA acted in attempting to interpret the Zoning Ordinance. The Plaintiff claims that the ZBA stated that they did not know what “green space” means and that the City Council should be responsible for the interpretation of the term. The Defendants submit the affidavit of D. Sean Noonan, a member of the ZBA, who seeks to clarify the written decision of the ZBA. He states that the ZBA did have an understanding of the term and that understanding was that it means “natural plantings including grass.” The reference to the City Council was to note that it is the City Council who has authority to specifically define the term, not the ZBA. The Court notes that this is a dispute as to fact but is not one that is genuine. The law is clear that if the Court finds any rational basis for the board’s decision, then the decision must stand. The Court has interpreted “green space” to include natural plantings and therefore, the Plaintiff is not entitled to the requested occupancy permit because it has not satisfied this requirement. Therefore, the decision of the ZBA to refuse to overturn the decision of the Brockton Building Inspector is supported by the Court’s finding and must be upheld.