MISC 87496

September 19, 1979

Middlesex, ss.

Sullivan, J.


By their amended complaint the plaintiffs, who allege that they are all holders of freehold estates in the Town of Billerica, seek a determination by this Court pursuant to the provisions of G.L. c. 240, §14A and c. 185, §l (j 1/2) that an amendment to the article under consideration by a special town meeting of the defendant Town, the Inhabitants of the Town of Billerica, held on May 26, 1970, was invalid. In addition to the Town, Mr. Harry J. Henry, a resident thereof who lives in the vicinity of the land in question but whose premises do not appear to be located within the buffer zone hereinafter discussed, also answered.

A trial was held in the Land Court Department of the Trial Court on May 4, 1979 at which a stenographer was appointed to record the testimony. All exhibits offered in evidence are incorporated herein by reference for the purpose of any appeal. Upon all the evidence I find as follows:

Plaintiffs, James E. Farmer and Phyllis C. Farmer, purchased property located on both the northerly and southerly sides of Tower Farm Road and the easterly side of Route 3A (Boston Road) shown on Plate 61 of the Assessors' Map (Chalk A) in 1969 and 1970. This property is shown on Chalk A as Lots 103, 104, 149 to 163 inclusive, 170 to 175 inclusive, 188 to 192 inclusive and 205-207 inclusive. The plaintiff, Frances C. Staniscia, owns a parcel of land shown on said chalk as Lot 194 which is situated on the easterly side of Route 3A. There was no evidence offered as to the land owned by J.E. Farmer, Inc., another one of the plaintiffs.

Article 7 of the Warrant for the Special Town Meeting held on May 26, 1970 contained a motion by the Planning Board that the zoning by-laws and zoning map of the Town be amended to rezone from a residential district to a general business district land owned by "J.E. & Phyllis C. Farmer." The article contained a metes and bounds description of the large tract of land which it was recommended be rezoned. The description included many lots on each side of Tower Farm Road; among such lots were Lot 192 and a portion of Lot 191 on Chalk A. After Article 7 was moved, an amendment was offered which read in its entirety as follows:

"that there be a 700 foot buffer zone on the south side of Tower Farm Road from Boston Road and 200 feet south at the end of 700 foot buffer."

The amendment was adopted. "The original motion, as stated with the amendment," was then put to the meeting with 141 voting in the affirmative and 22 in the negative (Exhibit No. 1). The necessary two-thirds vote having been received, the article, as so amended, was adopted. A motion to reconsider Article 7 was lost.

Thereafter, in 1976, Mr. Farmer submitted an article (Exhibit No. 3) to the April 13, 1976 Annual Town Meeting to see if the Town would vote to amend the zoning by-law and zoning map by rezoning from a residential district to a general business district the whole or any part of land owned by Mr. and Mrs. Farmer on Lot 1, Tower Farm Road. The metes and bounds description as set forth in the article makes it clear that it covers said Lot 192. The motion was lost. In 1974 plaintiff Staniscia had submitted an article to see if her land on Boston Road (i.e. Route 3A) might be rezoned from a neighborhood residence district to a general business district, and an article to this effect was moved, seconded and adopted.

The Billerica zoning by-law contains no definition of a buffer zone. The building inspector has consistently taken the following position which is set forth as follows in Exhibit No. 11, a letter dated February 2, 1979 addressed on official stationery to J.E. Farmer, Everett Road, Pinehurst, Mass.:

Dear Sir: I wish to restate my position regarding the so called Buffer Zone, 200 X 700 ft. from Boston Road along Tower Farm Road.

When you and or others inquired of me on several occasions during the past three years, I have always stated my position that no Building of any kind would be permitted on this strip of land. I find no language in Article 69 of the 1969 Town Meeting which would permit it. Further, a subsequent action to rescind the Buffer Zone failed to win Town Meeting approval.

My conclusion is that a Buffer Zone must remain unbuilt and unused for any purpose.

Very truly yours, s/George E. McMahon Building Commissioner Town of Billerica

The buffer zone encompasses both one and one-half lots which were rezoned in 1970 to General Business as well as lots or portions of lots belonging both to the plaintiffs and to third persons not parties to this proceeding and zoned for residential use. As inter- preted, it constitutes a no-man's land in which all use otherwise authorized in the underlying districts is precluded. However, if this Court should declare the amendment to Article 7 of the Warrant for the May 26, 1970 Town Meeting to be bad, any invalidity would affect the entire article and not the amendment alone. We note that the Town voted by a two-thirds majority to accept the article as amended and refused to reconsider. The Court can only speculate as to what action the town meeting would have taken if it had been advised that there was a question as to the validity of the amend- ment proposed to it. Thus there is no way to save the article and still rule the amendment bad. If the entire article were invalidated, the land described therein would be reverted to its pre-1970 zoning classification although, of course, some of the present uses would be protected as nonconforming. This clearly is a result no party wishes.

The zoning by-law contains no definition of a buffer zone. Yet because a term is undefined in a by-law does not necessarily mean that it is vague and therefore constitutionally infirm. See Board of Appeals of Hanover v. Housing Appeals Committee in Dept. of Community Affairs, 363 Mass. 339 , 363-64 (1973). The Appeals Court recently decided in Langevin v. Superintendent of Public Buildings of Worcester, Mass. App. Ct. (1977) [Note 1] that

The meaning of those words, being undefined by the ordinance, are to be determined according to the common and approved usages of the language.

Accord, Jackson v. Building Inspector of Brockton, 351 Mass. 472 , 475 (1966); Moulton v. Building Inspector of Milton, 312 Mass. 195 , 197-98 (1942). A buffer has been defined as "One that protects by intercepting or moderating adverse pressures or influences," or "something that interposes between two rival powers, lessening the danger of conflict. Often used attributively: a buffer zone." American Heritage Dictionary of the English Language 173 (1969). And, in the instant case, it can be said that the Billerica buffer zone must have been intended to separate the business and residential districts and shield the latter from the adverse incidences of the former. Such appears to be the interpretation adopted by the Building Commissioner, and it logically follows that in implementing the by-law, town officials would have to prohibit building and other uses of the parcels within the buffer.

The Court, from its own docket, is cognizant of the problems which arise when residential and business districts adjoin and has no doubt that the framer of the amendment and those voting at the meeting hoped to lessen the adverse results which stem from proximity to a zone line by creating a buffer zone. The zone in question is not a true buffer since it lies partly in a residential district and partly in a business district rather than being completely without either district. Nonetheless, the intent seems clear, and we cannot say that it is not a valid exercise of the police power to separate the two zones by prohibiting activity therein under the particular circumstances present here. Cf. Davis v. City of Rockford, 208 N.E. 2d 111 (1965).

The well-settled rules and presumptions applicable in cases challenging the validity of zoning by-laws and amendments have been paraphrased as follows:

The test for validity of a zoning by-law is whether it furthers any purpose included within G.L. c. 40A, §§2, 3. Cross v. Planning Bd. of Chelmsford, 345 Mass. 618 (1963). Simeone Stone Corp. v. Oliva, 350 Mass. 31 (1965). Beal v. Building Commr. of Springfield, 353 Mass. 640 , 643 (1968). Such a bylaw is presumed valid, 122 Main St. Corp. v. Brockton, 323 Mass. 646 , 649 (1949), and will be upheld unless arbitrary and unreasonable. Tracy v. Board of Appeals of Marblehead, 339 Mass. 205 , 208 (1959). When the reasonableness of a zoning by-law is fairly debatable, the judgment of the local legislative body must be sustained. Crall v. Leominster, 362 Mass. 95 , 101 (1972). The burden to prove otherwise rests on the petitioner. Kaplan v. Boston, 330 Mass. 381 , 384 (1953). The fact that land is made less profitable thereby does not invalidate a by-law. Simon v. Needham, 311 Mass. 560 (1942). Massachusetts Broken Stone Co. v. Weston, 346 Mass. 657 , 661 (1964). Cf. Euclid v. Ambler Realty Co. 272 U.S. 365 (1926).

Moss v. Winchester, 365 Mass. 297 , 299 (1974); accord, Collura v. Arlington, 367 Mass. 881 , 885 (1975); Sinn v. Board of Selectmen of Acton, 357 Mass. 606 , 609-10 (1970); Vagts v. Superintendent & Insp. of Bldgs. of Cambridge, 355 Mass. 711 , 713-14 (1969); Rosko v. Marlborough, 355 Mass. 51 , 53-54 (1968); VanSant v. Building Inspector of Dennis, 352 Mass. 289 , 292 (1967); Martin v. Rockland, 1 Mass. App. Ct. 167 , 169 (1973).

If the plaintiffs in this proceeding were the owners of the residential properties affected by the imposition of the buffer zone, they might well convince the Court that the amendment in question was infirm. Mrs. Staniscia is a nominal plaintiff, but as will be discussed hereafter, any damage she may have suffered from the adoption of the amendment has been alleviated. It would be open to the owners of Lots 120, 196 and 197 on Chalk A (and of Lots 189 and 190 if not the plaintiffs) to argue that the amendment was without the scope of the article as set forth in the Warrant and thus subject to attack. See Town of Burlington v. Dunn, 318 Mass. 216 (1945); Johnson v. Framingham, 354 Mass. 750 (1978); Fish v. Canton, 322 Mass. 219 , 222-23 (1948). The owners of such lots had no reason to infer from the Warrant that the town meeting would consider zoning restraints on land beyond the district described by metes and bounds in the original Article 7 and would include a provision prohibiting use of the back portions of their land.

A case also might be made that the wording of the amendment as to the area covered by the newly created zone was obscure. I interpret it as meaning that the buffer zone as described in the amendment begins at the intersection of Boston Road and Tower Farm Road and thence runs northeasterly 700 feet by the latter road, at which point it turns and runs by Lot 188 on Chalk A 200 feet southerly, at which point it turns and runs southwesterly approximately 700 feet by a line 200 feet distant from and parallel to the southeasterly line of Tower Farm Road to Boston Road, and thence turns and runs northerly by Boston Road to point of beginning. This interpretation includes the rear of lots zoned for residential purposes and not included within the proposed article. If such owners choose to attack the creation of the buffer zone on this ground or on the ground that their property has been taken without compensation, they are in a position to do so, but the plaintiffs Farmer have enjoyed the benefits of the change and cannot now be heard to complain.

The present case is somewhat similar to Sylvania Electric Products, Inc. v. Newton, 344 Mass. 428 (1962) where the Supreme Judicial Court upheld a zoning amendment apparently conditioned upon the imposition of voluntary restrictions by the owner of the land.

As hereinbefore pointed out, the Town Meeting in 1974 rezoned from a neighborhood residence district to a general business district land owned by plaintiff Staniscia on Boston Road and specifically described in the article as adopted. The question was raised at the trial as to whether the 1974 rezoning overrode the provisions as to the buffer zone in which a portion of the land rezoned in 1974 was situated or whether the land remains vulnerable and still subject to the provisions applicable to the buffer zone. I find and rule that amending the by-law changing the district in which the Staniscia land was situated the Town intended to exclude it by inference from the operation of the buffer zone. The latter was amended therefore by the 1974 vote to exclude from its southeasterly corner any part of the Staniscia premises.

On all the evidence I therefore find and rule that the amendment to the Billerica zoning by-law and map adopted at the May 26, 1970 town meeting changing land of the plaintiffs Farmer to general business created a buffer zone partly in said district and partly in the adjoining residential district; that no building or other use is permitted in the overlay or buffer district; that the district covers the area described in this decision; and that as between the parties to this proceeding the creation of said zone was a valid exercise of the police power authorized by the enabling act.

Judgment accordingly.


[Note 1] Mass. App. Ct. Adv. Sh. (1977) 1187.