LOWE'S HOME CENTERS, INC. vs. TOWN OF AUBURN PLANNING BOARD and DAVID DELOLLIS, PHILIP TULLY, RONALD BROOKS, DANIEL CARPENTER, and DAVID DOHERTY, in their capacity as members of the Town of Auburn Planning Board

Plaintiff Lowe’s Home Centers, Inc. (“Lowe’s”) filed its unverified complaint in Permit Session Case No. 352453 on August 8, 2007, appealing, pursuant to G. L. c. 40A, § 17 and G. L. c. 185, § 3A, Defendant Town of Auburn (the “Town”) Planning Board’s (the “Planning Board”) denial of three site plan applications (the “Site Plan Denials”) and two earth removal special permit applications (the “Special Permit Denials”) relating to property located at 614 Southbridge Street in Auburn, Massachusetts (“Locus”). The Site Plan Denials and Special Permit Denials were dated July 19, 2007 by the Planning Board. A case management conference was held on September 25, 2007.

Simultaneously with this appeal, Lowe’s appealed the Site Plan Denials to the Town of Auburn Zoning Board of Appeals (the “ZBA”). On October 12, 2007, the ZBA filed a decision with the Town Clerk (the “ZBA Decision”) that reversed the Site Plan Denials and approved the site plan applications.

On November 1, 2007, three neighbors of Locus, Gary Lemerise, Diane Bruke, and Mary Ann Anderson (the “Abutters”), filed their unverified complaint in Permit Session Case No. 358291, appealing, pursuant to G. L. c. 40A, § 17, the ZBA Decision. Also on November 1, 2007, the Planning Board filed its unverified complaint in Permit Session Case No. 358322, appealing, pursuant to G. L. c. 40A, § 17, the ZBA Decision. On November 29, 2007, a status conference was held for Permit Session Case No. 352453 and a case management conference was held for Permit Session Case No. 358291 and Permit Session Case No. 358322. In a post-hearing order of the same date, the three cases were consolidated.

On January 15, 2008, the Planning Board and the Abutters filed a Joint Motion for Summary Judgment for all three cases. On March 21, 2008, Lowe’s and the ZBA filed a Joint Cross-Motion for Summary Judgment and Joint Opposition to the Motion for Summary Judgment filed by the Planning Board and the Abutters. [Note 1] A summary judgment hearing was held on March 26, 2008, at which time the parties’ motions for summary judgment were taken under advisement. By decision dated December 5, 2008 (“Land Court Decision 1”), this court found that (1) the ZBA lacked jurisdiction to hear the appeal of the Site Plan Denials and the ZBA Decision had to be reversed; (2) this court lacked jurisdiction to hear an appeal of the Site Plan Denials under G. L. c. 40A, § 17, but the appeal was properly brought before the permit session of the Land Court in accordance with G. L. c. 185, § 3A; (3) the Site Plan Applications proposed a use that was permitted as-of-right in a Highway Business (“HB”) District; and (4) the Town of Auburn Zoning Bylaw (the “Bylaw”) does not require Lowe’s to obtain an earth removal special permit as a prerequisite to site plan approval for a use as-of-right. Because the Planning Board failed to address the Site Plan Applications within the legal framework of an as-of-right use, the Site Plan Denials were remanded to the Planning Board to take action consistent with Land Court Decision 1. The Planning Board held a remand hearing and issued a decision on January 27, 2009, approving the Site Plan Applications (the “Site Plan Approvals”) with sixty-four conditions (the “Conditions”).

Lowe’s filed its unverified complaint in Permit Session Case No. 393505 on February 13, 2009, appealing the Site Plan Approvals. On February 27, 2009, the Abutters, Lowe’s, and the ZBA filed a Stipulation of Dismissal with Prejudice relative to Permit Session Case No. 358291. A pre-trial conference was held on April 1, 2009, at which the attorneys for the Planning Board filed a motion to withdraw as counsel. A status conference was held on April 24, 2009, at which the Chairman of the Planning Board, the Town Accountant, the Vice-Chair of the Board of Selectmen, and the Town Administrator were present, in addition to counsel for the Planning Board and Lowe’s. A Motion to Consolidate the three remaining cases (Permit Session Case Nos. 352453, 358322, and 393505) was allowed and the Motion for Leave to Withdraw as counsel for the Planning Board was allowed. By letters dated April 28, 2009, and April 29, 2009, the Planning Board advised this court that the Board of Selectmen had voted not to continue with the litigation.

On May 28, 2009, Plaintiff submitted the written pre-filed direct testimony of Plaintiff’s witnesses Lawrence Lepere and Edward B. Boiteau together with a Revised Exhibit List and Chart of Conditions. A site view and the first day of trial at the Land Court in Boston was held on June 4, 2009. [Note 2] The second day of trial was held in the Land Court in Boston on July 22, 2009. After the completion of the trial, Plaintiff filed its Motion for Entry of Default against the Planning Board, which was allowed, and Default Judgment, which was denied. On October 6, 2009, Plaintiff filed its Proposed Findings of Fact, Proposed Conclusions of Law, and Affidavit of Lawrence Lepere Amending and Correcting Testimony Given at Trial. At that time this matter was taken under advisement.

Trial testimony was given by Plaintiff’s witnesses Lawrence Lepere (site development manager for Plaintiff), Edward Boiteau (civil engineer for Plaintiff), and Michael Burke (environmental manager for Plaintiff). Plaintiff submitted 108 exhibits, but did not rely on all of them at trial. A decision of today’s date (“Land Court Decision 2”) has been issued.

In accordance with Land Court Decision 1 and Land Court Decision 2, it is:

ORDERED and ADJUDGED that the ZBA lacked jurisdiction to hear the appeal of the Site Plan Denials and the ZBA Decision is reversed.

ORDERED and ADJUDGED that this court lacked jurisdiction to hear an appeal of the Site Plan Denials under G. L. c. 40A, § 17, but the appeal was properly brought before the permit session of the Land Court in accordance with G. L. c. 185, § 3A.

ORDERED and ADJUDGED that the Site Plan Applications proposed a use that was permitted as-of-right in a Highway Business (“HB”) District.

ORDERED and ADJUDGED that the Town of Auburn Zoning Bylaw (the “Bylaw”) does not require Lowe’s to obtain an earth removal special permit as a prerequisite to site plan approval for a use as-of-right.

ORDERED and ADJUDGED that Conditions 1-4, 9, 12, 16, 19, 20, 29, 30, 31, 44, 46, 47, 59, 60, and 63 remain valid and enforceable.

ORDERED and ADJUDGED that the modified version of Condition 56, which removes language requiring Lowe’s to obtain further approvals from the Planning Board, is valid and enforceable.

ORDERED and ADJUDGED that Conditions 6, 14, 21-28, 33, 49, and 54 are unreasonable and invalid.

ORDERED and ADJUDGED that Conditions 8, 10, 34-43, 45, 48, and 49 are invalid as a matter of law.

ORDERED and ADJUDGED that Conditions 50-54, 57, 58, and 62 exceed the Planning Board’s jurisdiction and are invalid as a matter of law.

ORDERED and ADJUDGED that language in Conditions 50 and 51 that requires Lowe’s to maintain, service, repair, and/or replace certain traffic signals after installing them is invalid because it exceeds the Planning Board’s jurisdiction.

ORDERED and ADJUDGED that the footnote to Condition 58 is unreasonable and invalid.

ORDERED and ADJUDGED that Condition 64 as it refers to the Site Plan Approvals is invalid, but when the Planning Board issues a new decision consistent with these findings, the Planning Board may impose Condition 64 in relation to its new decision and approved plan.

ORDERED and ADJUDGED that Lowe’s interpretations of Conditions 5, 7, 18, 32, and 61 are valid and enforceable.

ORDERED and ADJUDGED that Lowe’s modifications of Conditions 11, 13, 15, 17, and 55 are valid and enforceable and that in its new decision, the Planning Board shall amend Conditions 11, 13, 15, 17, and 55 accordingly.

ORDERED and ADJUDGED that the earth removal is incidental to the Development’s as-of-right use and Lowe’s need not apply for earth removal special permits under the Bylaw. As such, the Special Permit Denials are unreasonable, arbitrary, and capricious.

ORDERED and ADJUDGED that the Planning Board’s January 27, 2009 decision relative to the Site Plan Approvals and its denial of two Earth Removal Special Permits on July 19, 2007 are annulled consistent with Land Court Decision 2. This case is remanded to the Planning Board for action consistent with Land Court Decision 2. The Planning Board shall act within thirty days of this Judgment.

By the court. (Sands, J.)