WILDSTAR FARM, LLC, POLLY KORNBLITH, and MICHAEL NEWMAN vs. ROBERT C. MALSTER, STEVEN H. OLANOFF, STEVEN M. RAFSKY, HENRY W. GALE, and BRUCE H. MONTGOMERY, as they are the members of the TOWN OF WESTWOOD PLANNING BOARD, and the TOWN OF WESTWOOD

Plaintiffs Polly Kornblith and Michael Newman (“Kornblith/Newman”) and Wildstar Farm, LLC (“Wildstar”) (together, “Plaintiffs”) filed their unverified Complaint on August 4, 2009, appealing, pursuant to G. L. c. 40A, § 17, and G. L. c. 185, § 3A, a decision of Defendant Town of Westwood Planning Board (the “Planning Board”) relative to Environmental Impact and Design Review (“EIDR”) of Plaintiffs’ project (the “Project”) for the construction of a horse barn, indoor riding arena, and other related amenities at their property located at 401 Sandy Valley Road, Westwood, Massachusetts (“Locus”). [Note 1] Plaintiffs also challenge, pursuant to G. L. c. 240, § 14A, the applicability of Section 7.3 of the Westwood Zoning Bylaw (the “Bylaw”) as it relates to the agricultural use provisions of G. L. c. 40A, § 3 (“Section 3”). A case management conference was held on August 27, 2009. Defendants Town of Westwood (the “Town”) and the Planning Board (together, “Defendants”) filed their Answer on September 28, 2009.

On October 1, 2009, Defendants filed their Motion for Judgment on the Pleadings, together with supporting memorandum, alleging that Plaintiffs failed to exhaust their administrative remedies and, thus, this court lacked jurisdiction over Plaintiffs’ Complaint. Plaintiffs filed their Motion for Judgment on the Pleadings, together with supporting memorandum, on October 2, 2009, alleging that Section 7.3 of the Bylaw (the “EIDR Provision”) is not applicable to the Project, and that the Planning Board Decision, as hereinafter defined, is unreasonable. Plaintiffs filed their Opposition on October 26, 2009, and Defendants filed their Opposition on December 2, 2009. A hearing was held on the motions on December 23, 2009, at which time both motions were taken under advisement.

Pursuant to Mass. R. Civ. P. 12(c), “after the pleadings are closed . . . any party may move for judgment on the pleadings.” Judgment on the pleadings is appropriate “only when the text of the pleadings produces no dispute over material facts.” Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989). When a defendant’s pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id.

This court finds that the following facts are not in dispute:

1. Kornblith/Newman own Locus. Locus presently contains two single-family homes and a horse barn occupied by two horses. Locus is located in a residential zoning district, where agricultural uses are permitted as-of-right.

2. On March 10, 2009, Plaintiffs filed an application (the “Application”) with the Planning Board for review pursuant to the EIDR Provision, expressly reserving their rights to assert that such review was unnecessary pursuant to Section 3. [Note 2]

3. The Project qualifies as an agricultural use for purposes of Section 3. The Project does not violate any dimensional requirements of the Bylaw. The Project will involve the construction of 28,728 square feet of gross floor area for the barn and riding arena.

4. The Planning Board opened a public hearing on April 27, 2009, which was continued to May 12, May 26, June 23, and July 14, 2009. At the July 14, 2009, hearing, the Planning Board voted to approve the Project, subject to fifteen conditions (the “Conditions”), as summarized below:

1. The Project shall comply with the project plans.

2. The width of the driveway shall be increased to eighteen feet of paved or compacted gravel surface, suitable to withstand the weight of fire safety vehicles and equipment, and shall run the full length of the driveway from Sandy Valley Road to the gravel parking area adjacent to the stable/indoor riding arena, but excluding portions of the driveway that fall within thirty-five feet of an area protected by the Town’s Wetland Protection Bylaw

. . . .

3. An eight inch diameter fire service line shall be installed and a hydrant shall be placed on such fire service line.

4. No shows, lessons, regular events, or special events associated with the equestrian facility, its management, or clientele, shall be offered to the public at any time.

5. No more than nineteen vehicles, including cars, trucks, and trailers associated with the equestrian facility, its management, or clientele shall be parked on the property at any one time.

6. Durable curb stops shall be installed and maintained to clearly delineate each of the nineteen parking spaces.

7. No vehicles shall be parked within ten feet of either edge of the paved or gravel surface driveway.

8. If the Building Inspector determines that a greater than anticipated number of vehicular trips is regularly generated by the Project, the Applicants shall either decrease the scope of the Project or obtain further approval by the Planning Board.

9. No trucks or trailers, other than standard size pick-up trucks, associated with or providing service to the equestrian facility, its management, or clientele, shall be permitted to access Sandy Valley Road during the hours of school bus service.

10. No proposed expansion of the equestrian facility shall be undertaken unless a new application is approved by the Planning Board.

11. No smoking or use of heat lamps are allowed in or near the stable/indoor riding area.

12. Compacted gravel fire lines (sic) of at least eighteen feet in width shall be maintained on the eastern, western, and southern sides of the stable/indoor riding arena; a gravel access lane of at least twelve feet in width shall be maintained on the northern side of the stable/indoor riding arena. [Note 3]

13. There shall be at least one firewall between the indoor riding arena and the stable and another firewall between the storage area and the apartment.

14. An automatic fire suppression sprinkler system and fire detection system approved by the Fire Chief shall be installed in the stable/riding arena structure. Both systems shall be tested and maintained in accordance with manufacturer’s recommendations.

15. All necessary approvals must be obtained from the Conservation Commission, the Board of Health, and the Zoning Board of Appeals, and no construction activity shall commence unless and until a building permit has been issued for such construction activity.

This decision of the Planning Board was filed with the Town Clerk (the “Planning Board Decision”) on July 24, 2009.

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In their Motion for Judgment on the Pleadings, Defendants argue that, because this case involves the appeal of a site plan review issued for an as-of-right use, Plaintiffs should have first filed for a building permit for the Project before appealing to this court. As a result, Defendants reason that Plaintiffs have not exhausted their administrative remedies and the appeal of the Planning Board Decision to this court is premature. In response, Plaintiffs claim that the Planning Board Decision is ripe for adjudication before this court because this case involves the appeal of a special permit site plan review. In Plaintiffs’ Motion for Judgment on the Pleadings, Plaintiffs argue that the EIDR Provision is in substance a special permit review and is not applicable to an agricultural use protected by Section 3. Plaintiffs contend that even if the EIDR Provision applied to the Project, the Conditions are unreasonable and therefore illegal. Defendants, in response, argue that the Conditions are reasonable and therefore allowed. I shall examine each issue in turn.

I. Jurisdiction

Neither party disagrees on the legal standard governing judicial review of a site plan review process. If a site plan review is for an as-of-right use, an applicant must file for a building permit before appealing the site plan review decision to a court. See St. Botolph Citizens Comm., Inc. v. Boston Redevelopment Auth., 429 Mass. 1 , 9 (1999) (approving of Appeals Court cases that found the right to appeal a planning board’s as-of-right site plan review decision to arise only when the building inspector had issued or denied a building permit for the proposed project); see also Dufault v. Millenium Power Partners, L.P., 49 Mass. App. Ct. 137 , 142-43 n. 15 (2000). However, if a site plan review process is for a special permit use, an applicant may appeal the site plan review decision directly to a court. Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20-21 (1995). The first issue in this case, then, is whether the EIDR Provision is an as-of-right process or a special permit process.

Defendants argue that the use of Locus for a horse farm is an as-of-right use under the Bylaw and Plaintiffs do not need a special permit for such use. Therefore, Defendants reason that Plaintiffs must file for a building permit prior to appealing to this court. Defendants note that under Section 10.3.1 of the Bylaw, “[u]nless specifically designated otherwise, the Board of Appeals shall act as the Special Permit Granting Authority,” and note that the EIDR Provision does not appoint the Planning Board as a special permit granting authority. Defendants also contend that Section 7.3.5 of the Bylaw only requires that the Planning Board file its decision with the Building Inspector and the applicant, and not the Town Clerk, which would otherwise trigger the twenty-day appeal period found in G. L. c. 40A, § 17.

Plaintiffs claim that even though the horse farm is an as-of-right use, the EIDR Provision is effectively a special permit process that is directly appealable to this court. They note that the EIDR Provision requires onerous conditions similar to general special permit conditions. [Note 4] Plaintiffs argue that even though Section 7.3.3 purports to temper these standards as they relate to Dover Amendment uses, the Planning Board Decision ignores such exemption and imposed the onerous standards instead. In addition, the EIDR Provision states that the appeal process is “to a court of competent jurisdiction” in accordance with G. L. c. 40A, § 17. Finally, the purpose clause of the EIDR Provision states that it is “to provide individual detailed review of certain uses and structures,” indicating that it is a more rigorous review than a typical site plan review.

This court’s review of the EIDR Provision indicates that it is rife with ambiguous and conflicting terms, making it difficult to determine whether the EIDR Provision was an as-of-right process or a special permit process. The Bylaw states that the Zoning Board of Appeals is the special permit granting authority (except under specific sections, not including the EIDR Provision, where the Planning Board is listed as the permit granting authority). The EIDR Provision, however, allows significant discretion for the Planning Board in its decision-making under the EIDR similar to a special permit process. For example, Section 10.3.5 of the Bylaw allows for special permits to be granted “with reasonable conditions, safeguards or limitations on time and use, including performance guarantees, as the Special Permit Granting Authority may deem necessary to serve the purpose of this Bylaw,” and Section 7.3.8 of the Bylaw states that the Planning Board “may impose reasonable conditions at the expense of the Applicant, including performance guarantees, to promote [the EIDR’s] objectives.” Furthermore, Section 7.3.3 appears to exempt Section 3 uses and limit the EIDR as being “advisory only,” which conflicts with Section 7.3.8. To add to the confusion, Section 7.3.5 of the Bylaw requires the Planning Board to file its decision with the Building Inspector, not the Town Clerk, but the appeal provision states that any Planning Board decision under the EIDR Provision may be appealed pursuant to G. L. c. 40A, § 17. [Note 5] Therefore, this court cannot reasonably determine whether the EIDR process is an as-of-right process or a special permit process; as a result, Defendants shall not be able to rely on such confusion to prohibit Plaintiffs from direct appeal to this court. [Note 6]

Notwithstanding the foregoing, Plaintiffs’ appeal was also brought pursuant to the Permit Session of the Land Court, codified in the General Laws at Chapter 185, Section 3A, which states, in part:

[T]he permit session of the land court . . . shall have original jurisdiction, concurrently with the superior court department, over . . . claims between persons holding any right, title or interest in land and any municipal, regional or state board . . . arising out of any action taken with respect to any permit or approval concerning the use or development of real property . . . only if the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet or more gross floor area or both. [Note 7]

Plaintiffs’ appeal to the Land Court arose from the Planning Board Decision, which granted the approval of development of real property, and indisputably concerns a development that exceeds 25,000 square feet in gross floor area. Therefore, I find that this court has jurisdiction over Plaintiffs’ appeal of the Planning Board Decision pursuant to the Permit Session of the Land Court in accordance with G. L. c. 185, § 3A.

II. G. L. c. 240, § 14A (Count 1)

Pursuant to G. L. c. 240, § 14A, Plaintiffs argue that the EIDR Provision is facially invalid as it relates to Section 3, and that the EIDR Provision is invalid as applied to the Project. [Note 8] Plaintiffs state that because the Project is an agricultural use that is protected by Section 3, it is exempt from certain zoning regulation. The first paragraph of Section 3 states that,

[n]o zoning ordinance or by-law shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code, nor shall any such ordinance or by-law prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture . . . nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture . . . . [Note 9]

Plaintiffs assert that protected agricultural uses, such as the ones in the case at bar, may not be subject to prohibition or a special permit process pursuant to the Bylaw. In support of this position, Plaintiffs cite Trustees of Tufts College v. Medford, 415 Mass. 753 (1993). Tufts College stated that “[a] local zoning bylaw that improperly restricts [a protected] use by invalid means, such as by special permit process, may be challenged as invalid in all circumstances.” Id. at 765. Tufts College makes it clear that the burden of proof is on the Plaintiffs to show that the Conditions violate Section 3. See id. at 759. Plaintiffs claim that the EIDR Provision, as evidenced by the Conditions, improperly restricts the agricultural use of Locus. Plaintiffs argue that many of the Conditions are not reasonable, are outside the scope of Section 3, and are not associated with any regulation or performance standard in the Bylaw. Furthermore, Plaintiffs note that the Planning Board Decision failed to cite any sections of the Bylaw in the Conditions.

As discussed, supra, there is no issue that agricultural uses protected by Section 3 are not subject to special permit criteria, and both parties agree that the Project is a protected agricultural use. Defendants, however, argue that even though the Project is a use protected by Section 3, it remains subject to reasonable regulation and that the EIDR Provision is used to impose reasonable regulations. Defendants argue that the Conditions protect public health, morals, safety and welfare, and are therefore reasonable. In support of this argument, Defendants cite Cumberland Farms of Conn., Inc. v. Zoning Bd. of Appeal of North Attleborough, 359 Mass. 68 , 75 (1971), where the Supreme Judicial Court stated that any condition imposed by a board on a protected use “must bear a reasonably direct relation to significant considerations of public health, morals, safety, and welfare, based on findings justified by substantial evidence.” [Note 10]

A. Whether the EIDR Provision is Facially Invalid

“Every presumption is to be afforded in favor of the validity of an ordinance and if its reasonableness is fairly debatable the judgment of the local authorities who gave it its being will prevail.” Sturges v. Chilmark, 380 Mass. 246 , 249 (1980). This court shall sustain the EIDR Provision “unless there exists no substantial relation between it and the expressed purposes of the statute. Conversely, it will be held invalid if it be arbitrary or unreasonable, or substantially unrelated to the public health, safety, convenience, morals or welfare.” Id. In this undertaking, Plaintiffs bear the burden of proof to demonstrate that the EIDR Provision is invalid, “by a preponderance of the evidence . . . .” Johnson v. Edgartown, 425 Mass. 117 , 121 (1997).

Plaintiffs’ Complaint asserts that the EIDR Provision is facially invalid in that it is inconsistent with Section 3. [Note 11] While the EIDR Provision is indeed confusing and ambiguous in several areas, as made apparent in this court’s discussion regarding jurisdiction, supra, Section 7.3.3 limits the EIDR Provision’s “[m]andatory review” of Section 3 uses “consistent with those statutory provisions, . . .” This court reads such language as effectively cross referencing Section 3’s prohibition of zoning regulations that “regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code, [or] . . . prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture . . . .” Case law interpreting this language suggests that the application of the EIDR Provision to uses subject to Section 3 would result in imposing only reasonable conditions. See Prime, 42 Mass. App. Ct. at 802. Given Section 7.3.3’s incorporation of Section 3’s legal standard, the EIDR Provision does not impose a more stringent standard of review upon Section 3 uses than allowed by statute. [Note 12]

In light of the above, I find that Plaintiffs fail to satisfy their burden of demonstrating that the EIDR Provision is facially invalid.

B. Whether the EIDR Provision is Invalid as Applied to the Project

The site plan review process “implies regulation of a use rather than its prohibition.” Y.D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 31 (1970). It “contemplat[es] primarily the imposition, for the public protection, of reasonable terms and conditions upon the commercial use of land zoned for business.” Id. Contrastingly, the special permit process typically confers great discretion to a reviewing local board. In the case at bar, the Planning Board Decision expressly acknowledges that the Project’s Section 3 use was subject to a limited review under the EIDR Provision. The Planning Board Decision also implicitly recognizes that not all of the design standards found in Section 7.3.7 of the Bylaw applied in a limited review under the EIDR Provision (“The Project . . .will be consistent with all applicable standards set forth in Section 7.3.7 [of the Bylaw].”) (emphasis added). As such, on the face of the Planning Board Decision, this court cannot find that the Planning Board applied a special permit standard because the Planning Board failed to articulate which of the design standards it looked to in justifying the Planning Board Decision.

Given that the record before this court does not establish that the Planning Board failed to apply the appropriate standard of review (that of an as-of-right site plan review), this court next looks to the reasonableness of the Conditions. A cursory examination raises concerns about the reasonableness of some of the Conditions in context of Section 3. For example, Conditions 2, 3, and 12 impose dimensional and access requirements for fire safety with no explanation of basis behind these figures; Condition 4 prohibits Plaintiffs from opening events to the public; Condition 9 prohibits non-standard size trucks and trailers from accessing Sandy Valley Road from Locus during school bus hours; and Conditions 13 and 14 appear to be preempted by Section 3, G. L. c. 148, § 26G, or the State Building Code. This court, however, need not make findings with respect to the Planning Board’s application of the EIDR Provision given the procedural posture of the case at bar and the lack of evidence presented to this court to warrant any findings, as discussed infra.

III. G. L. c. 40A, § 17 (Count 2)

In addition to their challenge to the EIDR Provision under G. L. c. 240, § 14A, Plaintiffs also challenge the validity of the Planning Board Decision under G.L. c. 40A, § 17. Because Plaintiffs have moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), this court’s review must be limited to the pleadings. [Note 13] Entry of Judgment on the pleadings is appropriate in this case, as Defendants’ Answer fails to place the material allegations of Plaintiffs’ complaint in question.” See Mass. R. Civ. P. 12(c). Although Cumberland Farms allows for reasonable regulations for agricultural uses protected by Section 3, any regulations must be “based on findings justified by substantial evidence.” Cumberland Farms, 359 Mass. at 75. The record in this case does not contain any evidence supporting the Conditions in the Planning Board Decision; Defendants have submitted no evidence or affidavits to justify any of the Conditions. [Note 14] Had Defendants presented “matters outside the pleadings,” such as affidavits, the motion for judgment on the pleadings could have been treated as one for summary judgment. See Mass. R. Civ. P. 12(c). Therefore, I find the Conditions unreasonable in light of the absence of supporting evidence in the record before this court, and, thus, the Conditions are stricken from the Planning Board Decision.

IV. Conclusion

As a result of the foregoing, and consistent with the above, I DENY Defendants’ Motion for Judgment on the Pleadings relative to the Land Court’s jurisdiction over this matter; I DENY IN PART Plaintiffs’ Motion for Judgment on the Pleadings with respect to the EIDR Provision’s facial invalidity; I ALLOW IN PART Plaintiffs’ Motion for Judgment on the Pleadings with respect to the unreasonable Conditions imposed by the Planning Board Decision.

This matter is hereby remanded to the Planning Board to issue a new decision consistent with these findings within forty-five days from the date of this decision.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: August 13, 2010