STEPHEN L. GERVAIS, PHILLIP GERVAIS, JOHN J. GERVAIS, as Trustees of GERVAIS INVESTMENT TRUST, vs. TOWN OF CHELMSFORD and RICHARD P. DELMORE.

This petition was filed March 22, 1974 under the provisions of G. L. c. 240, §14A and c. 185, §1 (J 1/2) by the petitioners who are the owners of a freehold estate in possession of 15.67 acres of land (hereinafter locus) located at a point 100 feet westerly of Delmore Drive in Chelmsford. They pray that this Court determine that a 1972 amendment to the Chelmsford Zoning By-Law Map which rezones petitioner's land from "Limited Industrial" to "Single Resident" district constitutes "spot zoning" and is therefor invalid.

Respondent Delmore filed a demurrer which was allowed on April 1, 1975 eliminating him from further consideration.

The Town of Chelmsford filed an answer denying that the adoption of the said zoning amendment resulted in "spot zoning".

The parties filed an agreed statement of facts and ten exhibits attached thereto (the latter of which are incorporated herein for the purpose of any appeal) on November 5, 1979. A hearing was held August 27, 1980 at which three witnesses testified. Eleven exhibits were entered into evidence and these are incorporated herein for the purpose of any appeal. The Court took a view of the area with counsel present on May 29, 1980.

Upon consideration of the agreed statement of facts and all of the evidence presented to the Court, the Court finds the facts to be as follows:

1. The petitioners are the trustees of the Gervais Investment Trust (hereinafter the Trust) under a Declaration of Trust, dated July 15, 1966, recorded at the North Middlesex District Registry of Deeds in Book 1759, Page 273. [Note 1]

2. The Trust acquired title to said real estate by a quitclaim deed from Alice M. Flood dated August 8, 1971, recorded in Book 1980, Page 508, and a deed from Jacqueline H. Flood dated August 31, 1971, recorded in Book 1980, Page 610.

3. The real estate described in said deeds is shown on a plan entitled "Plan of Land in Chelmsford. Mass.," recorded in Book of Plans 114, Plan 36. (Exhibit A.) It is also shown on Appendix A [Note 2] herein.

4. On June 17, 1963, the respondent Town of Chelmsford, amended the then Chelmsford Zoning By-Law, and adopted a zoning map dated May, 1963 (Exhibit B). This Zoning Map was redrafted and revised several times, the last time being November 24, 1971. It was in effect in late 1971 and 1972.

5. Prior to March 2, 1972, the locus was a small part of a large area of approximately 200 acres located in a district zoned as "Limited Industrial" (IA). The locus is separated from the bulk of the area so zoned by Interstate 495, all as shown on Exhibit B and on Appendix A.

6. Locus is bounded to the north and west by land in the City of Lowell, Massachusetts, which is now and has been for many years, zoned in the City of Lowell for "Industrial Park, High Rise" (Exhibit J). Locus on the south and east is bounded by land in the Town of Chelmsford, which is now, and has been for many years, zoned in that town for "Single Family Residence". (RB).

7. The land in Lowell surrounding locus on the north and west and zoned for "Industrial Park High Rise" has been developed as an Industrial Park from 1964 on and now includes a very large and growing computer manufacturer (Wang Laboratory, Inc.); a soft drink bottling and distributing plant (Coca Cola); a bus terminal for commercial freight and passenger transport (Trailways); a Gas Company branch office and truck parking facility (Trans Gas Co.); a metal fabricating plant (Container Service, Inc.); a machine shop (Brooks Machine); two plastic Manufacturers (Arlin Mfg. Co. and Parkwood Laminates, Inc.); a manufacturer of paper cores (Sunoco Paper Products); a manufacturer of corrogated boxes (Interstate Container Corporation); and a refrigerator repair facility (ACR). (Exhibit C)

8. Prior to 1964 the land in the Industrial Park was in an undeveloped, meadowland state.

9. While most of the development in the aforementioned Industrial Park took place in the late 1960's, the ACR, Trans Gas Co. and Trailways buildings were all constructed in 1974.

10. Locus itself borders "Industrial Avenue East" to its north. It abuts an approach to and is very close to the large divided highway that is the "Lowell Connector" on its west. Interstate Route 495 lies close by on the south. The divided highway that is "Rte. 3" is slightly farther to the west of the "Lowell Connector", all as shown on Appendix A.

11. Included in the aforementioned Chelmsford Residential Zone to the south and east of the locus are residential homes as shown on a plan entitled "Control Survey by Emmons, Fleming and Bienvenu, Inc. Engineers and Surveyors, North Billerica, Massachusetts compiled by Photogrammetric methods by Col-East Inc. North Adams and Norwood, Mass." Page 54. (Exhibit D)

12. The above area was primarily developed in 1919 and is also shown on a plan of land, (Exhibit E) and on the most recent plan recorded in 1966. (Exhibit F) The area is as shown by streets running off Manning Road, on Appendix A.

13. In 1971 the locus then being located in the "Light Industrial" (IA) district, the petitioners filed a petition with the Planning Board of the Town of Chelmsford, to change the zoning to place locus in the "Shopping Center" (CC) district for the purpose of developing a shopping center on locus.

14. On September 23 and September 30, 1971, the Planning Board caused a notice of a Public Hearing to be held on Thursday, October 14, 1971, at 9:00 P.M. at the Center Town Hall, to be advertised in a newspaper in said Town of Chelmsford.

15. On October 19, 1971, Robert E. Germann, Chief of Police of the Town of Chelmsford, by letter to James M. Geary, Jr., Esquire. indicated access roads through abutting residential zones would not be necessary in the event of an emergency because of the easy accessibility to the area via Industrial Avenue. (Exhibit G).

16. On November 1, 1971, by letter to James M. Geary, Jr., Esquire, Frederick H. Reid, Fire Chief of the Town of Chelmsford Fire Department indicated that it was not necessary to have access roads through the residential area abutting the petitioners' property for emergency vehicles due to easy access via Industrial Avenue. (Exhibit H.)

17. At the regular meeting of the Planning Board on November 1, 1971, the Board voted with a majority in favor of recommending the zoning change involving the petitioners' land, subject to the execution of appropriate covenants regarding the erection of a cedar fence and to theexclusion from the new zoning of part of land that would touch upon Delmore Drive.

18. On November 3, 1971, the Chelmsford Industrial Development Committee by unanimous vote, with one member abstaining for professional reasons, voted in favor of the petitioners' petition for rezoning. (Exhibit I.)

19. On March 2, 1972, at the Annual Town Meeting of the Town of Chelmsford under Article 10, a motion was made to vote to amend the zoning by-law and its accompanying map to change the petitioners' land from "Limited Industrial" (IA) to "Shopping Center" (CC) and said motion failed by a vote of yes...184, no ..559.

20. Meanwhile, Richard P. Delmore petitioned the Chelmsford Planning Board to conduct a public hearing to amend a Chelmsford Zoning By-Law and Zoning Map by rezoning the above-described petitioners' land from "Limited Industrial" (IA) district to "Single Residence" (RB) district.

21. The Chelmsford Planning Board conducted a public hearing on this petition on January 20, 1972, at 9:30 P.M. at the Center Town Hall and the Chelmsford Planning Board voted not to recommend such change as the land is not suitable for residential use.

22. On March 2, 1972, at the Annual Town Meeting of the Town of Chelmsford under Article LL, the respondent, Richard P. Delmore, moved that the Town amend the zoning by-law and its accompanying map to change the petitioners' land from "Limited Industrial" (IA) district to "Single Residence" (RB) district.

23. The Annual Town Meeting voted to change the zoning of the petitioners' land from (IA) to (RB) by a vote on the motion under Article 11 of yes..556, no..158 and all statutory procedural requirements for amending a zoning by-law were met. Said Article of Amendment to the By-Law was subsequently approved by the Attorney General on June 14, 1972.

24. The zoning map for the City of Lowell in effect in 1971 and 1972 is attached and incorporated herein and is to be known as Exhibit J.

25. Meadow Brook flows over a portion of the premises which are the subject of this petition as shown on Exhibit C.

26. The view revealed that the locus is undeveloped and overgrown with brush and trees.

27. A real estate appraiser and broker, an expert witness for plaintiffs, testified that the locus is unmarketable due to its residential zoning category and that to his knowledge no residential developers have shown any interest at all in developing the area.

28. Robert V. Gervais, a former trustee of the trust, testified that there had been several offers to buy the property if it could be developed for industrial use but no offers from residential developers. He further testified that in 1971 the consideration paid for the property was $100,000.

29. Donald Wetmore, Chelmsford Building Inspector testified that from 1964 through 1974 at least eight building permits to build single family homes in the area adjacent to locus were issued (Exhibits N through U).

Petitioners claim that the 1972 adoption of the amended by-law is invalid for three reasons:

1. It constitutes spot zoning; and

2. It violates the statutory requirement of uniformity of classification; and

3. It is confiscatory because it was adopted in response to neighborhood pressures rather than for reasons specified in Chapter 40A, § 2(?).

On each of these issues the petitioners have the burden of proving facts which compel a conclusion that the question of whether the amendment fails within the enabling statute is not even fairly debatable. Crall v. Leominster, 362 Mass. 95 (1972). [E]very presumption is to be made in favor of the validity of the amendment, and if its reasonableness is debatable, the judgment of the local authorities must prevail. Canteen Corporation v. Pittsfield, 4 Mass. App. Ct. 289 , 292 citing Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 594 (1949), Cohen v. Lynn, 333 Mass. 699 , 705 (1956), Crall v. Leominster, 362 Mass. 95 , 101 (1972).

1. Does the adoption of the amended by-law constitute "spot zoning"?

The Court answers this in the negative.

"Spot zoning" - singling out a parcel of land for special treatment as compared to similar parcels in the same zoning district - is unlawful. Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 , 249 (1943) McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682 , 688-689 (1958) cited in Canteen Corporation v. Pittsfield, 4 Mass. App. Ct. 289 (1976).

In the instant case, locus was zoned as IA, being a small portion of some 200 acres so zoned. Petitioners, dissatisfied with the zoning, sought to have it changed to CC, for commercial not industrial use. Had petitioners been successful in their rezoning attempt it might well have constituted spot zoning under the definition set forth above as one parcel being singled out for special treatment. But petitioners were not successful, their article having been overwhelmingly defeated at Town Meeting.

Undoubtedly prompted by the petitioners' attempted zoning change, Mr. Delmore, a resident of an adjoining area zoned RB for residential use, likewise sought to have locus rezoned, but unlike petitioners, to a more restrictive category, RB. Mr. Delmore's rezoning article carriedoverwhelmingly at the Town Meeting.

Although this rezoning was also prompted by one individual, the Court does not believe that the action taken at Town Meeting constitutes spot zoning in its usual sense. Spot zoning generally results when a parcel of land is rezoned for the benefit of its owner at the expense of the public welfare. See, e.g., Beal v. Building Commissioner of Springfield, 353 Mass. 640 (1968) Mitchell v. Board of Selectmen of South Hadley, 346 Mass. 158 (1963). Mr. Delmore, however, acted on behalf of the entire residential district adjoining the locus rather than for any personal benefit from the zoning change.

The Court thus finds and rules that this is not "spot zoning".

2. Does the rezoning violate the statutory requirement of uniformity of classification?

The Court answers this in the affirmative .

While this may not be "spot zoning", nevertheless, it is unlawful to single out a particular parcel of land that is indistinguishable in character from neighboring land in the same zoning district solely at the instigation of citizens who object to a continuance of the use of property for industrial purposes. Schertzer v. Somerville, 345 Mass. 747 , 752 (1963). Land of like characteristics must be uniformly classified. Canteen Corp. v. Pittsfield, 4 Mass. App. Ct. 289 (1976).

In view of the physical characteristics of this area, the Court finds that the rezoning of locus from IA to RB violates this principle of uniformity. A tongue of land located in the City of Lowell and zoned for "Industrial Park High Rise" juts into Chelmsford bordering locus to its west and north, as shown on Appendix A. This jutting parcel has been zoned in Lowell for industrial purposes since 1963. It was so zoned when Chelmsford passed its by-law setting up the IA zone offsetting this in 1963 and which Chelmsford changed at the behest of Mr. Delmore in 1972. Since the establishment of the industrial area in Lowell, the industrial park was established and now has grown into a major industrial area, dominated as it is by the Wang Industrial tower. The Chelmsford area zoned IA has not as yet been developed. The neighborhood to the east of locus was residential in 1963 when the IA zone was adopted and has not changed in any way over the years.

Changes in the character of the area since the time of the original zoning enactment may be taken into account in determining whether rezoning is proper. Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 , 249 (1943). Because the only change in the area surrounding the locus has been an increase in industrial activity there appears to be no justification for changing the zoning classification of the locus from IA to RB. The Town has not advanced any legitimate concerns in support of its action. In fact, the evidence indicates that use of the locus for non-residential uses would not create any traffic or emergency access problems. (See Paras. 15 and 16)

In view of the nature and history of the properties adjoining locus, I hereby find and rule that the amendment adopted by the Town Meeting is violative of the principle of uniformity mandated by the enabling act and that the amendment is therefore void and unenforceable.

In light of the above, the Court does not address the question of whether or not this rezoning is confiscatory.

Judgment accordingly.

exhibit 1