THOMAS F. JENKINS vs. TOWN OF PEPPERELL.

Plaintiff brings this action under Massachusetts General Laws Chapter 240, §14A and Chapter 231A challenging the validity of the Town of Pepperell's Zoning By-law, specifically alleging: 1) that that portion of the 1974 (and 1981) amendment to the Zoning By-law of the Town which purports to establish the boundary between the Urban and Suburban Residence Districts in the vicinity of Plaintiff's land be declared invalid as being unconstitutionally vague and incapable of precise definition; 2) that that portion of the 1974 (and 1981) amendment to the Zoning By-law of the Town which purports to restrict the use to which Plaintiff may put his land be declared unconstitutionally vague and invalid as applied to Plaintiff's land as it is impossible, even if the location of the boundary between Urban and Suburban Residence Districts is capable of precise definition, to determine the zoning applicable to Plaintiff's land from within the Zoning By-law itself; and 3) that Plaintiff is entitled to use his property for multi-family housing.

Defendant, by way of answer, alleges: 1) that Plaintiff has not exhausted his administrative remedies; 2) that Plaintiff's allegations do not substantially challenge the validity of the Town of Pepperell Zoning By-law as is required under G. L. c. 240, §14A; and 3) that Plaintiff's land is in part in the Urban Residence District and in part in the Suburban Residence District as defined in the Town of Pepperell Zoning By-law and the zoning district map incorporated therein.

A trial was held on May 13, 1982. A stenographer was sworn to record and transcribe the testimony in the case. Two witnesses testified and seventeen exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. A stipulation of facts was filed and signed by counsel for both sides.

After completion of the trial the Defendant, on September 17, 1982, filed a motion to dismiss for lack of subject matter jurisdiction. The Plaintiff thereupon filed an amended complaint assented to by the Defendant. This amended complaint deleted any claims under Chapter 231A, the basis of Defendant's motion to dismiss, and hence the motion to dismiss is hereby denied.

Plaintiff filed a brief on September 17, 1982. Defendant's brief was filed November 19, 1982. A further conference was held at the Court with both attorneys present on January 26, 1983 to identify certain of the exhibits.

Plaintiff's attorney submitted an additional brief to the Court on February 8, 1983 and Defendant's attorney submitted a reply brief on February 16, 1983.

Based on all the evidence the Court finds the following facts:

1. On October 21, 1968, the Town of Pepperell enacted a Zoning By-law, (Exhibit 8) for the first time, dividing the Town into three districts: Industrial, Commercial, and Residential /Agricultural. The locations of these districts were determined under Section IV thereof to be in accordance with a "Zoning Map of the Town of Pepperell" dated September, 1968, filed in the town clerk's office. A copy of this plan is shown as a part of Exhibit 8 and again is shown in color as Exhibit 18. It would appear that the easternmost line of the central area zoned as "Commercial" bordering the "Residential/Agricultural" area on this 1968 plan is the same line involved in the present case that now marks the boundary between "Urban Residence" and "Suburban Residence" under the 1974 and 1980 Zoning By-law amendments.

2. Use for multiple dwellings was allowed under Section V of the 1968 By-law in Industrial and Commercial districts, and in the Residential /Agricultural District but only after obtaining a Special Permit from the Board of Appeals.

3. On February 2, 1970, Burley Herget, Inc., one of Plaintiff's predecessors in title, submitted a plan of the land in question to the Planning Board of the Town of Pepperell for subdivision approval. (Exhibit 9) The Planning Board approved the plan subject to an agreement restricting its use not here in issue, and it was recorded as Plan Number 152 of 1970, in Book 11802, Page End at Middlesex South District Registry of Deeds on February 19, 1970, all as shown on Appendix A attached hereto. [Note 1]

4. On November 8, 1971, Burley Herget, Inc. applied for permits (Exhibits l0A and l0B) to build twelve unit multiple dwellings on each of lots numbered 3 and 4 as shown more fully on Appendix A. No prior permits, special or otherwise, had been issued by any Town Board prior thereto.

5. On December 7, 1971, the Selectmen of the Town of Pepperell, who at that time were the building permit granting authority pursuant to Section VIII-A of the 1968 by-law, issued the appropriate building permits. Table II, set forth in Section VII of the 1968 by-law (Exhibit 8), allowed 11 to 14 family units on lots of four acres or more with 600 feet of street frontage. Plaintiff's lots 2, 3 and 4 comply with the requirements set forth in said Table II.

6. Prior to January 1, 1973, the twelve unit apartment buildings permitted under the building permits granted as in Paragraph 5above were constructed and fully occupied on lots numbered 3 and 4. A similar building was built on Lot 2 but no building permits were put into evidence with reference thereto.

7. No civil action pursuant to Massachusetts General Laws, c. 40A, §22 (as it was in effect prior to the adoption by the legislature of St. 1975, c. 808) has been or was brought by any party to challenge the granting of the building permits as set forth in Paragraph 5 above.

8. Herget Drive and Shawnee Road, the streets shown on the subdivision plan, (Exhibit 9) dated February 8, 1970 were built and the bond for their completion was released by the Planning Board on November 24, 1972 (Exhibit 11).

9. On December 10, 1973, the Town of Pepperell duly amended its Zoning By-law and the amendment became effective on February 11, 1974. Section 2 of the amended By-law incorporates by reference a Zoning map "which is on file with the Town Clerk."A copy of this map, (Exhibit 15), hereinafter the "Official" Map, is shown as Appendix B. [Note 2] Thus, Herget Drive and Shawnee Road had been in existence for well over a year prior to the rezoning. In spite of their existence neither street is shown on the "Official" Map or on the centerfold map included in the Zoning By-law itself as adopted February 11, 1974.

10. This "Official" Map shows the Town being divided into seven districts. The line between the "Suburban Residence" District and the "Urban Residence" District is in issue here, this being specifically the easternmost line of the "Urban Residence" District. It is shown in brackets on Appendix B and there labelled "True North From Intersection." It is also shown on the centerfold map which is a part of Exhibit 12 but without the bracket and the words "True North From Intersection." This line would appear to be the same as that dividing Commercial from Residential/Agricultural Districts under the 1968 Zoning By-law as set forth in Paragraph l herein.

11. Other than the note on the "Official" Map (Exhibit 15) that the boundary between the "Urban Residence" and "Suburban Residence" Districts at the easterly side of Town is a line "True North from Intersection," shown in brackets thereon (Appendix B herein) there is no other description or designation of the boundary between those two districts in the Zoning By­ law.

12. Under the 1968 Zoning By-law use for multiple dwellings was allowed as of right in the "Commercial" and "Industrial" Districts; in the "Residential/Agricultural" Districts such use was allowed only after obtaining a Special Permit from the Board of Appeals. Section VII Table II of this 1968 Zoning By-law required a lot size of 4 acres for 11 to l4 family units and for 15 or more family units "l acre per each 3 family unit or fraction thereof." Lots 2, 3 and 4 here in issue each are four acres plus in size and a twelve unit multiple dwelling was built on each without the issuance of any special permit. The 1974 Zoning By-law Amendment provided for multiple dwellings as of right in the "Urban Residence" zone and in the "Commercial" zone but only by special permit. No multiple dwellings are allowed to be built in a "Suburban Residence" District. Under Section 11 (f) thereof the density requirement was lessened so that each unit of a multi-family dwelling required a minimum of 5,000 square feet. Thus, if Lots 2, 3 and 4 are now in an "Urban Residence" District an additional number of units would be allowed on each lot whereas if these lots are in a "Suburban Residence" district under the 1974 By-law no further units would be allowed to be built.

13. On December 23, 1977, Plaintiff purchased the three lots, 2, 3 and 4 as shown on Appendix A from a successor in title to the original developer, Burley Herget, Inc. On each lot was a twelve unit apartment building. Prior to purchasing the same the Plaintiff purchased a copy of the 1974 Zoning By-laws. Included therein was a supposed copy of the "Official" Map, (Exhibit 15), but without the words in brackets "True North from Intersection" thereon. He then purchased a copy of the 1968 Zoning By-laws (Exhibit 8) to check the zoning of the lots being purchased. Item K on Page 5 Section B of Exhibit 8 provided for multiple dwellings in commercial districts and Table II on page 8 set forth that 11-14 family units could be placed on each four acre lot, with 600 feet of frontage required. He had the title to Lots 2, 3 and 4 checked and found no special permits from the Appeals Board as would be required to build multiple family units in a Residence District under the 1968 By-law. Lots 2, 3 and 4 were four acres or more each, with 600 foot frontage. He concluded that these lots were of necessity in the commercial zone.

14. In December, 1979, the Town duly amended its Zoning By-law once more and the amendment became effective on January 14, 1980. This amendment did not affect the description of the zoning district boundary between Suburban and Urban Residence Districts in the vicinity of the locus, so that the said description remained the same as in the 1973 amendment. Herget Drive and Shawnee Road, in existence since at least 1972, were again not shown on the ''Official" Map which remained the same as under the 1974 Zoning By-law.

15. This 1980 amended Zoning By-law made no change in the density or other requirements of the Urban Residence District. Multi-family residences are still allowed as a matter of right in the "Urban Residence" district but are not permitied in the areas zoned as "Suburban Residence."

16. On December 16, 1980 the Planning Board of Pepperell addressed a letter (Exhibit 14) to the Board of Appeals in response to a request from the latter board for clarification of the intent of the Planning Board when the Zoning By-law of 1973 was adopted. Attached to this letter are metes and bounds descriptions of the various zoning districts, including a description of "Urban Residential District No. 2" wherein the easterly line of said district is described as follows: "Thence easterly along the center of Leighton Street to a true north line passing through the intersection of Reedy Meadow Brook with the east bank of the Nashua River. Thence true north to the center of the Nashua River." This Urban Residential District No. 2 [Note 3] is bounded on its east by Suburban Residential District No. 2 which describes the line as follows: "Thence easterly along the center of Leighton Street to the true north line passing through the intersection of Reedy Meadow Brook and the East Bank of the Nashua River. Thence true north to the center of the Nashua River." There is no mention in these descriptions of the intersection of Leighton Street and Lowell Road as called for on the "Official" Map. In addition a line true north from the east bank of the Nashua River at its intersection with Reedy Meadow Brook projected southerly falls westerly of the intersection of Leighton and Lowell Roads. The Planning Board letter ends with the following paragraph: "Obviously if someone wished to dispute this unilaterial (sic) boundary decision of the Planning Board it would be a matter for the Board of Appeals to decide."

17. Plaintiff sought information about further developing his three lots by building additional apartments thereon and wrote the Building Inspector of the Defendant town a letter dated February 9, 1981. (Exhibit 1) William R. McMahon, Zoning Officer, [Note 4] answered this inquiry by letter dated February 11, 1981, (Exhibit 2) in effect, informing Plaintiff that it was reasonable to assume that the line between the "Urban Residence" district and the "Suburban Residence" district was established so as to include his present lots 2, 3 and 4, on which were located the twelve unit apartments, in the "Urban Residence" district.

18. As a result of this communication the Plaintiff filed an Application for a Building Permit to build additional units on the three lots, dated April 13, 1981. (Exhibit 3). Evidently this was referred by the Building Inspector to the Planning Board who returned it unsigned to the Building Inspector (Exhibit 4) with a letter that in the opinion of the Planning Board the lots involved were not in the Urban Residence district. The permit did not issue.

19. The Town Planning Board then apparently "appealed" to the Board of Appeals from the decision of the Zoning Officer on May 12, 1981 (Exhibit 5) and a hearing was held by the Board of Appeals on July 9, 1981. A "decision" dated July 23, 1981, (Exhibit 6), was issued thereon which stated that the appeal had been brought prematurely but that it was the Appeal Board's interpretation of the boundary line that "the district boundary line between Urban Residential and Suburban Residential is a straight line between the point of intersection of the center line of Lowell Road and the center line of Leighton Street and the point of intersection of the center line of Reedy Meadow Brook and the center line of the Nashua River." The Board declared that this was not a decision as there was nothing before it, the board considering the letter of the Zoning Officer (Exhibit 2) to be an opinion and not a ruling. The problem with this "opinion" of the Board of Appeals is that the line as described does not follow a course "True North From the Intersection" as called for on the "Official" Map. To go from the intersection through the junction of Reedy Meadow Brook and the Nashua River is not "true" north.

20. Evidently, further action was brought in the Ayer District Court, the result of which was an "Agreement of Judgment" filed with the Court on October 23, 1981 in affect declaring the opinion of the Board of Appeals to be a nullity. (Exhibit 7).

21. Plaintiff had a plan drawn by Dana F. Perkins Assc., Inc., dated January 12, 1981. (Exhibit 17). David Webber, the engineer who drew the plan, examined the "Official" Map (Exhibit 15) at the town hall, went through the Zoning By-law and talked to persons in the Building Inspector's office. He concluded that there were two ways to draw the plan: one was to begin at the intersection of Leighton and Lowell Roads and set a course "True North from Intersection" as per the "Official" Map (Exhibit 15). This course runs to the Nashua River being to the east of the junction of Reedy Meadow Brook and the east bank of the Nashua River. The second way to draw the plan was to draw a line "true north" from the junctions of Reedy Meadow Brook and the Nashua River to the middle of the river and then project this line south to Lowell Road some 125 feet west of its intersection with Leighton Street. There was no way to tell where the line between the two zones was located from trips to the town hall and a perusal of the zoning maps. The plan cost the Plaintiff about $8,000.00.

The sole question to be resolved in the opinion of the Court is whether or not the line dividing the Urban Residence District from the Suburban Residence District under the 1974 Zoning By-law is so indefinite as to invalidate this portion of the Pepperell Zoning By-law. The Court finds and rules that it is.

The Court has spent an inordinate amount of time trying to determine the facts in this case and in trying to determine the location of this line. It is the opinion of this Court that no citizen should be put to the great difficulty that the Court has been put to in determining what zone his land is in.

It is obvious that the Plaintiff encountered difficulty first before purchasing the lots in question in 1977 and then in the spring of 1981 when he sought building permits. Before his purchase in 1977 the Plaintiff went to the town hall and purchased the then current 1974 Zoning By-law. This contained a supposed copy of the "Official" Map in the centerfold but this centerfold copy of the map did not have the words in brackets - "True North from Intersection" found on the so-called "Official" Map. Plaintiff, after examining the 1974 By-law, then purchased a copy of the 1968 Zoning By-law. He satisfied himself after examining the two zoning by laws and having a title search made that the three lots were located in the "Commercial" District under the 1968 By-law and the "Urban Residence" District under the 1974 By-law. In addition, he noted that no special permits had been granted to build the multiple units as would have been required under the 1968 By-law for such building in the Residential /Agricultural zone rather than in the Commercial zone.

When the Plaintiff tried to find out what he could build as a result of changes in density provisions of the 1980 zoning By-law he had similar if not worse difficulties. By this time it would appear that various boards in the town had likewise spent a tremendous amount of time trying to decide where the line between the districts was without much success. The Planning Board would seem to say it was in one place (Exhibit 4), the Board of Appeals (Exhibit 6) another and the Building Inspector (Exhibit 2) still another. The Plaintiff hired a surveyor, a costly procedure, to endeavor to find the line and to ascertain in what district his property was located. The plan, Exhibit 17, resulted in the possibility of there being two lines with some 125 feet difference between them. (See paragraph 25 herein). These two lines would appear to go through Lot 3 on Exhibit 9, putting Lot 2 well within the Urban Residence Zone and Lot 4 well without it.

It is not the province of this Court to set boundary lines between zoning districts in a city or town. Rather, this belongs to the city or town to determine in their legislative capacity at Town Meeting. But even if it were the duty of the Court to so determine the line, the Court cannot make this determination here on the evidence before it.

The Massachusetts Supreme Judicial Court in the case of Beachwood Acres, Inc. v. Town of Hamilton, 350 Mass. 655 (1966) sustained a decision of the Land Court that the zoning map involved therein was sufficiently specific and "that from the map, the location of the zone boundary in relation to fixed points on the map ... could be determined with reasonable accuracy." The Court is of the opinion in this case that this boundary line cannot be so fixed. See also Jordan v. Goddard, 14 Mass. App. Ct. 723 (1982)

Thus, the Court finds and rules that the easterly line of the "Urban Residence" District from Lowell Road north to the Nashua River dividing this said district from the Suburban Residence District under the 1974 and 1981 Zoning By-law cannot be fixed by reason of its indefiniteness and is invalid as it effects Plaintiff's Lots 2, 3 and 4 which are therefore not affected by the Zoning By-law.

Plaintiff has submitted 7 requests for findings of fact and 5 requests for rulings of law. Requests for findings of fact numbered 1 and 6 are allowed; number 2 is denied. The Court is unable to make a determination on the evidence presented as to numbers 3-5 and 7. Requests for Rulings of Law numbered 1 and 2 are allowed; 3 is denied; 4 is denied as the Court has not defined the boundaries of the Urban Residence District and number 5 is inapplicable.

Judgment Accordingly.

exhibit 1

exhibit 2