PREMIERE EDUCATION GROUP d/b/a THE SALTER SCHOOL and CAMPUS REALTY GROUP, INC. vs. CITY OF WORCESTER, acting by and through LEONARD CIUFFREDO, MORRIS BERGMAN, MATTHEW ARMENDO, JERRY HORTON, THOMAS HANNIGAN, DAVID GEORGE, and ANDREW FREILICH, as they are members of the WORCESTER ZONING BOARD OF APPEALS and JOHN SHEA, SCOTT CASHMAN, ANNE O’CONNOR, MARGARET GUZMAN, and NICOLE XIFARAS PARELLA, as they are members of the PLANNING BOARD; and the CITY OF WORCESTER

Plaintiff Premiere Education Group d/b/a The Salter School (the “School”) and Plaintiff Campus Realty Group, Inc. (“Campus”) (together, “Plaintiffs”) filed their unverified Complaint on January 22, 2007, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Worcester Zoning Board of Appeals (the “ZBA”) which dismissed Plaintiffs’ administrative appeal of a decision of Defendant Worcester Planning Board (the “Planning Board”) denying Plaintiffs’ application for parking plan approval for Locus, as hereinafter defined. The ZBA, the Planning Board, and Defendant City of Worcester (“City”) (together, “Defendants”) filed their Answer on February 22, 2007.

On February 26, 2007, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix. Defendants filed their Opposition on March 26, 2007, together with supporting memorandum, Statement of Additional Material Facts, and Appendix, including the Affidavit of Karen A. Meyer (Assistant City Solicitor), pertaining to portions of the City of Worcester Zoning Ordinance (the “Ordinance”) before this court, and the Affidavit of Robin Bartness (Chief Planner for the Planning and Regulatory Services Division of the Office of Economic and Neighborhood Development for the City of Worcester). [Note 1] A case management conference was held on May 10, 2007, at which Defendants argued that the only issue on summary judgment was the timeliness of Plaintiffs’ appeal of the Planning Board decision to the ZBA, and the parties agreed that no discovery was necessary. A hearing was held on the summary judgment motion on November 15, 2007, at which time the matter was taken under advisement.

This court issued a Decision on February 5, 2009 allowing Plaintiffs’ Motion for Summary Judgment and ordering that this case be remanded to the ZBA for a public hearing on the issue of whether the Planning Board’s denial of the application was valid. This court retained jurisdiction over this matter. The ZBA held such public hearing on March 9, 2009 and upheld the decision of the Planning Board denying Plaintiffs’ application for parking plan approval.

Plaintiffs filed an Amended Complaint on April 21, 2009, appealing, pursuant to the provisions of G.L. c. 40A § 17, the decision made by the ZBA following remand from this court. Defendants filed their answer on May 6, 2009.

On May 6, 2009 Plaintiffs filed their Motion for Summary Judgment After Remand, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix including the Affidavits of Gary S. Brackett and Heather W. Kingsbury. Defendants filed their Opposition and Cross-Motion for Summary Judgment on June 4, 2009, together with supporting memorandum and Response to Plaintiffs’ Statement of Undisputed Material Facts and Facts in Support of Defendants’ Cross-Motion. Plaintiffs filed their Opposition to Defendants’ Cross-Motion for Summary Judgment on July 3, 2009, together with supporting memorandum. There was no hearing on these summary judgment motions.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c).

The following facts are not in dispute:

1. Campus owns the property located at 155 Ararat Street, Worcester, Massachusetts (“Locus”). The School leases Locus from Campus.

2. Locus is located in a district classified as RS-7 (Residential, Single Family) under the Ordinance.

3. On October 13, 1981, the ZBA approved a variance permitting Plaintiffs to use Locus as a school conducted as a gainful business.

4. On May 25, 2005, Plaintiffs filed with the Planning Board an application for a Parking Plan adding forty-seven parking spaces to the existing parking lot. Modification of an existing parking area requires filing a parking plan pursuant to Article IV, Section 7 of the Ordinance. [Note 2]

5. On June 22, 2005, the Planning Board conducted a public hearing on the application, which was continued to July 27, 2005, further continued to October 26, 2005, and ultimately continued to November 9, 2005.

6. At a public hearing on November 9, 2005, a motion to deny the Parking Plan was defeated. The Planning Board then requested that Plaintiffs seek a continuance and submit a revised Parking Plan. Plaintiffs declined to seek a continuance, instead asking for approval of the Parking Plan, subject to any necessary conditions. In response, the Planning Board moved again to deny the Parking Plan, and the motion passed.

7. On November 18, 2005, the Planning Board signed a written decision (“Planning Board Decision 1”) identifying thirteen deficiencies in the Parking Plan that it believed any future application should address. [Note 3]

8. After Planning Board Decision 1 was issued, counsel for Plaintiffs met with City planning staff to review a revised parking plan prepared to address the concerns set forth in Planning Board Decision 1.

9. On May 17, 2006, Plaintiffs filed a second application with the Planning Board for approval of a revised parking plan (the “Revised Parking Plan”).

10. In a memorandum to the Planning Board dated June 2, 2006, the City’s Chief Planner indicated that the City’s Director of Engineering had suggested in a memorandum dated June 15, 2005, that Plaintiffs “[s]how the exiting [sic] drainage structures and any proposed drainage improvements.” In a subsequent memorandum to the Planning Board dated July 12, 2006, the City’s Chief Planner indicated that Plaintiffs had made revisions to show existing drainage structures.

11. On August 7, 2006, Plaintiffs and their counsel met with the City’s Director of Planning, the City’s Chief Planner, and an attorney for neighbors of Locus to review the Revised Parking Plan and discuss any concerns the planning staff and neighbors had relative to filing the Revised Parking Plan.

12. On August 8, 2006, Plaintiffs submitted additional revisions to the Revised Parking Plan to address concerns of the planning staff and neighbors of Locus.

13. In a memorandum dated August 16, 2006, the City’s Chief Planner recommended to the Planning Board that the Revised Parking Plan be approved once four outstanding issues were resolved (three of which involved paving of the parking area). Drainage was not mentioned.

14. At a public hearing on August 16, 2006, the Planning Board voted to deny the Revised Parking Plan. The Planning Board issued a written decision dated September 6, 2006 (“Planning Board Decision 2 ”). Planning Board Decision 2 stated that

The applicant was advised the following deficiencies should be mitigated if a new application is filed:

• Inadequacy of the parking lot circulation without paving and striping.
• Inadequacy of pedestrian and vehicle safety.
• All issues from the parking plan denial of November 9, 2005 that were not addressed. [Note 4]

15. On October 5, 2006, Plaintiffs filed with the ZBA an appeal from Planning Board Decision 2.

16. The ZBA dismissed the appeal as untimely by decision dated January 8, 2007 (“ZBA Decision 1”).

17. On February 5, 2009, this court found that Plaintiffs’ appeal of Planning Board Decision 2 was timely for it was filed within thirty days of the date of the filing of Planning Board Decision 2 with the City Clerk. This court therefore held that ZBA Decision 1 was improper and remanded the appeal to the ZBA for a hearing on the merits.

18. On March 9, 2009, the ZBA voted to uphold Planning Board Decision 2 (“ZBA Decision 2”). The ZBA found that:

A written decision was filed with the City Clerk on April 6, 2009.

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Defendants’ Motion to Strike the Kingsbury Affidavit.

Defendants move to strike the Affidavit of Plaintiffs’ attorney Heather W. Kingsbury. [Note 5] Defendants first argue that the affidavit is not in support of any pleading or motion permitted by Mass. R. Civ. P. 7. That rule provides that

“[t]here shall be a complaint and . . . an answer, . . . ; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned . . . ; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.” (emphasis added).

Contrary to Defendants’ arguments, this court construes the affidavit to be offered in support of Plaintiffs’ Amended Complaint. Plaintiffs there allege that the ZBA’s decision on remand was “not supported by the evidence or by proper findings or rulings.” The Kingsbury Affidavit primarily concerns the circumstances surrounding the ZBA’s findings in ZBA Decision 2 and whether the findings relate to evidence submitted at the hearing.

On appeal from a zoning board’s decision, “[t]he decision of the board is no more than the report of an administrative body and . . . has no evidentiary weight. . . . [T]he appeal is heard de novo.” Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 , 321 (1955). ZBA Decision 2 speaks for itself and the Kingsbury Affidavit is not relevant to this issue. As a result of the foregoing, I shall strike the Kingsbury Affidavit. [Note 6]

Jurisdiction.

The parties agree that the Ordinance makes review of a parking plan analogous to the site plan approval process. [Note 7] They also agree that case law applicable to site plan review is therefore applicable to parking plans. Article IV, Section 7 of the Ordinance granted the Planning Board authority to rule on Plaintiffs’ parking application, stating that “[t]he Planning Board shall be the approving authority for parking lots of more than eight (8) spaces.” The Ordinance grants the ZBA broad authority to hear appeals from decisions of the Planning Board under certain circumstances. Article II, § 7(4)(A) states that the ZBA is authorized “[t]o hear and decide appeals by: any person aggrieved by . . . an order or decision by the Planning Board under Site Plan Approval . . .”

Use Allowed as of Right.

The parties agree that Plaintiffs’ use of Locus as a school, with related parking, is allowed as of right in the RS-7 zoning district and subject to the provisions of Article IV, Section 7 of the Ordinance. [Note 8] [Note 9] In general, a zoning board lacks discretion to deny altogether a use that is allowed as of right, provided that it otherwise complies with the zoning ordinance. See Prudential Ins. Co. Of Am. v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281-82 (1986). When a use allowed as of right complies with the ordinance, a board has discretion only to impose “reasonable conditions under a by-law’s requirements in connection with approval.” Id. at 283 n.9. However, this court has recognized exceptional circumstances in which a zoning board has discretion to deny a use allowed as of right:

In some cases, the site plan, although proper in form, may be so intrusive on the interests of the public in one regulated aspect or another that rejection by the board would be tenable. This would typically be a case in which, despite best efforts, no form of reasonable conditions could be devised to satisfy the problem with the plan and the judge conducting de novo review concurs in that conclusion. Id.

In such case, however, the judge must look at this on de novo review.

The judge [is] essentially to examine the proposal to see if the . . . problem [is] so intractable that it [can] admit of no reasonable solution. Short of independently finding that, he [is] not obliged to give deference to the board's decision. Id. at 283.

Plaintiffs contend that ZBA Decision 2 was arbitrary and capricious, based on an error of law, in excess of the ZBA’s authority, and not supported by the evidence or by proper findings. Moreover, they allege that the ZBA acted in bad faith when it upheld Planning Board Decision 2. Defendants argue that ZBA Decision 2 was supported by substantial evidence and not arbitrary or capricious, and that there was no bad faith.

The core of Plaintiffs’ argument relates to the extent of the ZBA’s authority. Plaintiffs argue that approval of the Revised Parking Plan cannot be denied altogether because the school use is allowed as of right, parking is a valid accessory use, and the School complied with all of the technical requirements of the Ordinance. Instead, they assert, the ZBA only had authority to approve the Revised Parking Plan as proposed or to approve it subject to reasonable conditions. Plaintiffs argue that the ZBA could deny approval of the Revised Parking Plan only on one basis, the exception stated in Prudential. Plaintiffs contend that the problems with the Revised Parking Plan raised by Defendants can all be addressed by reasonable conditions of which Defendants were aware. Therefore, Plaintiffs argue, the ZBA had no authority to deny approval of the Revised Parking Plan and were legally obligated to overturn Planning Board Decision 2.

Both the Planning Board and the ZBA denied approval of the Revised Parking Plan primarily because the plan failed to provide for paving and striping. [Note 10] Defendants argue that authority over paving and striping follows from the regulated aspects enumerated in the Ordinance, including access, capacity, circulation, and safety. Furthermore, they argue that the Revised Parking Plan’s lack of paving and striping intrudes on the interests of the public in these regulated aspects. Therefore, Defendants contend that a rejection of a use allowed as of right is warranted.

Although neither of the Planning Board’s two decisions mention drainage, the ZBA also upheld denial of the Revised Parking Plan because the plans lacked information regarding drainage infrastructure and associated drainage calculations used to evaluate water runoff onto abutting properties. [Note 11] Defendants argue that drainage is a regulated aspect of the Ordinance that requires technical engineering information; [Note 12] therefore, the argument continues, Plaintiffs did not comply with the technical requirements of the Ordinance. In the alternative, Defendants argue that they lack technical expertise to formulate reasonable conditions regarding drainage without this information. Therefore, Defendants maintain that reasonable conditions cannot be devised and that a rejection of a use allowed as of right is warranted.

The question before this court is whether the Revised Parking Plan is so intrusive on the interests of the public, with regard to paving or drainage, that it becomes tenable for Defendants to deny a use allowed as of right. The Revised Parking Plan’s provisions for these two characteristics are discussed in turn.

A. Paving and Striping.

The first alleged intrusion on the public interest relates to Plaintiffs’ failure to provide for paving and striping in their plan. The considerations enumerated by the Ordinance for examination by the ZBA clearly bear on paving and striping. Defendants argue, and articulate in ZBA Decision 2, that failing to pave and stripe the parking lot would hinder capacity, circulation, and access. However, the ZBA did not have authority under Prudential to uphold the Planning Board’s denial of Plaintiffs’ Revised Parking Plan on the basis of Plaintiffs’ failure to provide for paving and striping. Prudential recognizes the authority of the Planning Board to approve the plan subject to reasonable conditions pertaining to paving and striping, as implied in the Ordinance. It is irrelevant to the scope of the Planning Board’s authority that ZBA Decision 2 stated that Plaintiffs would not agree to a paving condition and had argued that it was prohibitively expensive. The hearing was not a negotiation of conditions of approval; to the extent the Planning Board was not satisfied with the plan, it should have imposed reasonable conditions irrespective of the burden to Plaintiffs, rather than simply denying the plan. [Note 13]

As a result of the foregoing, I find that Defendants did not have authority to deny Plaintiffs’ Revised Parking Plan on the basis of Plaintiffs’ failure to provide for paving and striping. I further find that the Planning Board has implicit authority to approve Plaintiffs’ Revised Parking Plan subject to reasonable conditions pertaining to paving and striping.

B. Drainage.

The second alleged intrusion on the public interest relates to Plaintiffs’ failure to include in the Revised Parking Plan calculations pertaining to drainage. Prudential states that “[a] board may lawfully reject a site plan that fails to furnish adequate information on the various considerations imposed by the by-law as conditions of the approval of the plan.” 23 Mass. App. Ct. at 283 n.9. Defendants look to Article IV, Section 7 of the Ordinance to find a familiar list of considerations that it imposes: “access, drainage, capacity, circulation, compatibility, safety to pedestrians and vehicles using the facilities and using abutting streets,” and argue that Plaintiffs failed to furnish adequate information regarding drainage, one of the considerations imposed by the Ordinance.

Plaintiffs have not disregarded drainage. Even though drainage was not addressed in Planning Board Decision 1, a memorandum from the City’s Chief Planner to the Planning Board dated July 12, 2006 indicated that Plaintiffs had made revisions to show the existing drainage structures and that they had not proposed any drainage improvements. Defendants assert only that the Revised Parking Plan lacked drainage calculations used to measure water runoff onto abutting property. Although the Ordinance briefly mentions drainage in Article IV, Section 7, the specific requirements are found in Article V, which governs Site Plan Approval. It provides that an application shall contain “[a]ll existing and proposed surface and subsurface drainage facilities, including detention or retaining ponds. Drainage circulations [sic] with data on predevelopment and post-development conditions to be provided.” Ordinance, Art. V, § 4(2)(G)(6). [Note 14]

Prudential does not directly define “adequate information,” but cites Auburn v. Planning Bd. of Dover, 12 Mass. App. Ct. 998 (1981), as an example of inadequate information. In Auburn, the plaintiffs sought approval to build a two-story office building, which was a use permitted as of right on their business-zoned property. The plans submitted in Auburn

were wholly lacking in adequate information pertaining to loading spaces and surface and subsurface drainage, and . . . the plans tended to show fewer parking spaces available to the plaintiffs than the number required by the by-law. Moreover, . . . the plans failed to meet sewage disposal requirements designated in . . . the State Environmental Code . . . and . . . they could be found inadequate with respect to screening, building sign requirements, and regulations providing for safe vehicular and pedestrian movement. Id. at 999.

The application in Auburn can be distinguished from Plaintiffs’ application by the magnitude of its deficiency and a broader context of inadequacy and non-compliance. Furthermore, the language in Auburn indicates that it involved deficiencies tending to show actual failures to comply with legal requirements, not merely a failure to provide information that could be evaluated in light of the requirements. In contrast, in the case at bar, the record shows that Plaintiffs have generally taken steps to address Defendants’ concerns and comply with the Ordinance, including providing some drainage information.

Moreover, Planning Board Decision 1 made no mention of drainage among the thirteen deficiencies it instructed Plaintiffs to mitigate. [Note 15] Furthermore, Planning Board Decision 2 also did not cite drainage. Drainage has only recently become a concern. [Note 16]

In light of the foregoing, it would be inappropriate to deny Plaintiffs’ application on the basis of their failure to provide drainage calculations. The Ordinance, however, clearly gives the ZBA authority to impose reasonable conditions with respect to drainage or providing information related to drainage. In the case at bar, Defendants have requested drainage calculations for the same limited purpose that they were required in Daly – to evaluate runoff. Therefore, Defendants clearly have the authority to impose a condition requiring Plaintiffs to provide drainage calculations and it is reasonable for them to do so. However, it would not be reasonable for Defendants to use the calculations as a basis to deny Plaintiffs’ Revised Parking Plan, unless it can be shown that the runoff attributable to the parking lot expansion will cause a severe intrusion on the interests of the public that cannot be corrected.

As a result of the foregoing, I find that Defendants do not have authority to deny Plaintiffs’ Revised Parking Plan outright on the basis of Plaintiffs’ failure to provide drainage calculations. I further find that Defendants do have authority to require Plaintiffs to supply drainage calculations as a condition of approval of Plaintiffs’ Revised Parking Plan.

The ZBA’s Findings and Process.

Plaintiffs argue that ZBA Decision 2 “contains findings that were never discussed or voted upon by the ZBA.” The primary procedural duties of the ZBA are laid out in G.L. c. 39 § 23B and G.L. c. 40A § 15. Known as the open meeting law, G.L. c. 39 § 23B requires that “[a]ll meetings of a governmental body shall be open to the public.” In addition, G.L. c. 40A § 15 requires that a zoning board of appeals “shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question . . . and setting forth clearly the reason for its decision.” Defendants have complied with these statutory requirements, as shown by ZBA Decision 2.

Plaintiffs and the public were not kept in the dark in this case. The ZBA held a public hearing March 9, 2009, at which Plaintiffs were present. When the meeting adjourned, it was clear to the attendees that the ZBA had upheld Planning Board Decision 2 and which members had voted for and against that result. Those present knew that an official decision had been made, who had made it, and what opportunities they had for appeal.

Defendants also issued a decision that appears to minimally satisfy the requirements of G.L. c. 40A § 15. ZBA Decision 2 states the vote of each ZBA member on the motions by which the ZBA upheld Planning Board Decision 2 at the meeting on March 9, 2009. ZBA Decision 2 sets forth its reasoning, stating that “[t]he ZBA found that the Planning Board acted within its authority when it denied the parking plan due to its inadequacies, the lack of information needed to address them, and the petitioner’s unwillingness to accept reasonable conditions of approval related to regulated aspects of parking facilities as set forth by the Worcester Zoning Ordinance.”

ZBA Decision 2 then incorporates Planning Board Decision 2 to explain the “inadequacies,” stating that it “cited the inadequacy of the parking lot circulation without paving and striping, inadequacy of pedestrian and vehicle safety, and the remaining issues from the parking plan denial of November 9, 2005 that were not addressed.” ZBA Decision 2 did not give any detailed findings relating to these inadequacies; such statements appear to be a summary of the findings in Planning Board Decision 2. After a decision occurs under public observation, “the filing of the decision is a necessary but ministerial act, simply memorializing the action taken at the meeting.” Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 27 (2002). However, in order to fulfill this memorialization purpose, the “decision and statement of reasons filed cannot vary in substance from the decision taken at the meeting.” See id. ZBA Decision 2 clearly did not vary in substance from the decision taken at the meeting.

Based on the foregoing, I find that the ZBA complied with procedural requirements and made minimal findings in ZBA Decision 2.

Bad Faith.

Plaintiffs allege that the ZBA acted in bad faith by upholding Planning Board Decision 2 when it knew that it lacked discretion to do so and by issuing a written decision based on fraudulent findings. A showing of bad faith by the ZBA would be necessary to award Plaintiffs’ costs pursuant to G.L. c. 40A § 17, which they have requested.

Nothing in the record suggests that ZBA Decision 2 was based on fraudulent findings. Although Plaintiffs specifically contend that this case mirrors Quincy v. Planning Board of Tewksbury, 39 Mass. App. Ct. 17 (1995), the finding of bad faith in Quincy rested on factual findings of bad faith by the board distinguishable from Defendants’ conduct in this case. In the case at bar, the ZBA provided reasons for its decision, and upheld the denial “for the reasons cited by the Planning Board.” Even though Plaintiffs challenge these reasons, some reasons clearly were articulated and do not imply bad faith in the same way that an entirely unjustified decision might.

While the ZBA failed to propose reasonable conditions that might be attached to approval, this court has found this to be a basis for denial of ZBA Decision 2. Such failure, however, is not a basis for bad faith. Based on the foregoing, I find that Defendants did not act in bad faith and that Plaintiffs are therefore not entitled to costs.

As a result of the foregoing, I DENY Defendants’ Cross-Motion for Summary Judgment. I ALLOW Plaintiffs’ Motion for Summary Judgment After Remand pertaining to the invalidity of ZBA Decision 2, inasmuch as the ZBA acted in excess of its authority. I DENY Plaintiffs’ Motion for Summary Judgment After Remand pertaining to its allegations of bad faith and request for costs, inasmuch as the ZBA’s decision was supported by proper findings and there is no basis for bad faith.

This case is remanded to the Planning Board for the limited purpose of approving Plaintiffs’ Revised Parking Plan subject to reasonable conditions related to paving and striping Locus and / or Plaintiffs’ provision of information pertaining to drainage at Locus. The parties shall notify this court after the remand decision is issued. Such remand decision shall take place within ninety (90) days from the date of this decision. This court retains jurisdiction in the event that further action is required. Judgment shall enter after the remand decision is issued.

Alexander H. Sands, III

Justice

Dated: May 9, 2011