MISC 106604

February 2, 1983

Essex, ss.



On April 12, 1982 a complaint was filed with this Court by Brookside Homeowners Association, Inc. against the Town of North Andover (the "Town") and V. Scott Follansbee, Trustee of the Security Realty Trust, ("Follansbee") as defendants, to determine, pursuant to the provisions of G. L. c. 185 §1 (j 1/2) and c. 240 §14A, the validity of §3.74 (20) of the Town of North Andover Zoning By-Law as adopted at the 1956 Town Meeting and shown on the 1956 Zoning Map and an amendment of April 25, 1981 to said by-law and map, which zoned in a two step process land on Chickering Road in North Andover in the County of Essex as General Business. There were named as parties plaintiff the manager of the plaintiff and all owners in fee of land in the complex known as Brookside in the Town of North Andover. Subsequently, the plaintiffs filed a motion to amend their complaint by dropping all parties plaintiff other than Brookside Homeowners Association, Inc. ("Brookside") and to make other changes therein occasioned by such amendment. The complaint allges that the 1956 zoning of a portion of the land now owned by Follansbee (and other land) as a General Business district in 1981 similarly contravened the provisions of c. 40A.

An answer was filed on behalf of Follansbee, in which he denied that the zoning of the premises constituted spot zoning and affirmatively alleged that the plaintiffs lacked standing to bring a complaint pursuant to said sections. The answer also alleged laches, waiver and the statute of limitations. Thereafter, the Town, with the assent of the plaintiff, answered late and also made similar denials and affirmative defenses. After filing his answer, Follansbee also filed a counterclaim in which he alleged that the zoning of the property owned by the defendant in counterclaim was invalid. The Court granted a motion to dismiss the counterclaim without prejudice on the ground that matters set forth therein were not the proper subject of a counterclaim. The Court also denied a motion by Follansbee to dismiss the complaint for lack of subject matter jurisdiction. Harrison v. Braintree, 355 Mass. 651 (1969).

A trial was held at the Land Court on October 4 and 5, 1982 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. Plaintiff called eleven witnesses, including Follansbee. The defendants called only one witness, an expert in planning. At the conclusion of the plaintiff's case the defendants moved for a directed finding pursuant to Mass. R. Civ. P. 41 (b) (2) which the Court took under advisement and declined to render a judgment until the close of all the evidence.

On all the eidence I find and rule as follows:

1. Locus consists of a parcel of land situated on Chickering Road, in said North Andover, Massachusetts State Route 125 in said North Andover at its junction with Walker Road, a private way. It contains approximately 2.27 acres and is shown on a plan entitled "Land Owned By Lund's Garden Center Chickering Road, North Andover, Massachusetts" dated October 12, 1972 and recorded with Essex North District Registry of Deeds [Note 1] on October 30, 1972 as Plan No. 6711 (Exhibit No. 5), and also is shown on a plan entitled "Plan of Land of Chestnut Estates Trust North Andover, Mass." dated November 30, 1973 and recorded on December 19, 1974 as Plan No. 7158 (Exhibit No. 7). A copy of the former plan is attached hereto as Appendix A. On it the Court has indicated in color the approximate lines of the areas affected by the zoning amendments, the location of Walker Road and Follansbee's property lines.

2. The land zoned for General Business in 1956 is generally referred to herein as "G.B. First" and that rezoned in 1981 as "G.B. Second."

3. The Town first adopted a zoning by-law (Exhibit No. 29) and Zoning Map (Exhibit No. 10) in 1943. The by-law reflected the nature of the Town at that time in that it provided for a minimum number of business districts, large areas denominated agricultural, educational and restricted residential districts in outlying sections, intown general residential districts, and a central belt of land as an industrial district adjoining what became G.B. First. At this time the area now in dispute was zoned residential. The zone was bounded on the south by an Industrial District within which was located the Boston and Maine Railroad right of way. The property of the plaintiff was situated in the industrial district.

4. In 1953 the Town unanimously voted to amend the zoning by-law by changing G.B. First from a General Residential to an Agricultural Classification. (Exhibit No. 31).

5. The character of the Town of North Andover was changing during this period of time, with the American Woolen Company about to close and the emergence of Western Electric Company as a potent factor in the Town's economy. A decision accordingly was made to review the zoning by-law and to adapt it to the changing face of the Town and the Town's potential for growth. A professional planner was engaged, but a great deal of work was done by members of the community who were interested in the future of the Town. The question as to whether existing small businesses should be treated as non-conforming uses or incorporated into the zoning by-law and map as appropriate districts was debated, and the citizen planners concluded the latter to be the preferable course. Descriptions of exiting parcels of land used for business purposes were obtained from the land owners and others and were incorporated in the proposed zoning by-law. (See Exhibit No. 13 for a copy of the warrant for the June 30, 1956 Special Town Meeting of which Article 1 concerns the amedment of the 1943 zoning by-law and map. See also Exhibit No. 30.) The zoning by-law as reprinted in 1958 is Exhibit No. 35. Paragraph 3.7 deals with General Business Districts and in Paragraph 3.74. (20) G.B. First is described. The Zoning Map adopted in 1956 appears as Exhibit No. 11 and as reprinted in 1958 as Exhibit No. 12. Attached thereto are the outlying business districts with G.B. First shown as No. 20. This General Business District is bounded on the east by Chickering Road, on the south and west by an Industrial District and on the north by a Country Residential District.

6. G.B. First was described as follows in th 1956 Zoning By-law:

"(20) A certain parcel of land in North Andover, together with the buildings thereon, presently known as Lund's Garden Center, bounded and described as follows: Starting at the Boston & Maine Railroad right of way on Chickering Road and running 300 feet in a northeasterly direction to the land of Alice B. Colgate; thence northwesterly along the land of Alice B. Colgate a distance of 250 feet; thence southerly a distance of 400 feet to the Boston & Maine Railroad right of way; thence 236 feet along the Boston & Maine Railroad right of way to the point of beginning."

7. In 1972 the zoning by-law was again revised. The 1972 by-law (Exhibit No. 18) apparently made no change in G.B. First but rezoned from Industrial to Residential-4 the land now of the plaintiff. The Town voted at a special Town meeting held on June 5, 1972 to amend the text of its 1956 zoning by-law by substituting in place thereof the provisions of the proposed 1972 zoning by-law adopted at the meeting, and by amending the 1956 Zoning Map by substituting in place thereof, the May 1972 proposed Zoning Map. [Note 2]

8. At the Town meeting held on April 25, 1981 the Town voted unanimously to adopt Article 74 which reads as follows:

ARTICLE 74. To see if the Town will vote to amend the North Andover Zoning By-Law and Map to change from Residential-5 (R-5) to General Business (G.B.) a parcel of land located at or near the corner of Chickering Road and Walker Road consisting of 98,660 square feet of land, more or less. The portion of said parcel fronting on Chickering Road and consisting of 52,790 square feet, more or less is currently zoned (G.B.). This petition seeks to rezone the northeasterly portion of said parcel which consists of 45,870 square ft., more or less. The entire parcel is more particularly bounded and described as follows:


Beginning at a concrete bound on the northwesterly side of Chickering Road, (Route 125), said point is 144.7 feet northeasterly from the centerline of the Boston and Maine Railroad as measured along the northwesterly line of Chickering Road; thence by a curve to right having a radius of 28.34 feet and along said curve, fifty-nine and eighty-one hundred ths (59.81) feet to an iron pipe along the easterly line of a road to Meadowview Apartments; thence N 33 deg. 37' W, three hundred ninety five (395) feet along said road to an iron pipe; thence by a curve to the right having a radius of 45.00 feet and along said curve fifty-nine and eighty seven hundredths (59.87) feet to an iron pipe; thence N 73 deg. 39' E two hundred eighty nine and four tenths (289.4) feet by land of Meadowview Apartments to a drill hole in a stone wall; thence 14 deg. 05' E two hundred ninety five (295) feet along said stone wall and land now or formerly of N.E. Industries, Inc., to an iron pipe in the northwesterly side of Chickering Road to the point of beginning. Containing 2.27 acres, more or less.

The part sought to be rezoned is more particularly bounded and described as that portion of the above described premises, bounded as follows:

Southerly: By the Zoning Line, 400.00 feet, more or less;

Westerly: By Walker Road as shown on said plan;

Northerly: By land now or formerly of Meadowview Apartments, 289.40 feet, more or less;

Easterly: By land now or formerly of N.E. Industries, Inc.

The entire parcel is shown on a plan recorded with the Essex North Registry of Deeds as Plan No. 7158.

Petition of V. Scott Follansbee and others. Voted unanimously to adopt the Article.

Article 74 extended the classification of General Business to the northeasterly portion of Follansbee's land ("G.B. Second"). The approval of the Attorney General is apparent from Exhibit No. 24. The 1981 zoning map, revised to show the enlarged district, is Exhibit No. 20.

9. By deed dated June 4, 1979 and recorded in Book 1372, Page 257 (Exhibit No. 32) G. A. R. Corporation conveyed to the plaintiff a parcel of land on the northeasterly side of East Water Street shown as Lot A on a recorded plan not introduced into evidence. [Note 3]

10. By deed dated September 24, 1952 and duly recorded in Book 768, Page 1, George M. Naylor, Jr., et al, Trustees under the Will of Moses T. Stevens, conveyed to Henry E. Lund three parcels of land situated on the westerly side of Chickering Road and containing approximately 15.55 acres of land (Exhibit No. 1). Follansbee's land was included in the granted premises. A portion of said premises comprised what is now G.B. First and G.B. Second. Mr. Lund subsequently conveyed a large portion of said land to Walter V. Demers, et al, by deed dated March 2, 1962 and recorded in Book 954, Page 7 (Exhibit No. 2). The premises so conveyed are shown on a plan entitled "Plot Plan of Garden Apartments, Owner - Henry E. Lund, North Andover, Massachusetts" dated June, 1961 and recorded as Plan No. 4442 (Exhibit No. 3). On said premises are located the Meadowview Apartments which currently are being converted to condominiums. Mr. Lund at this time retained ownership of locus. He had been employed at American Woolen Company, was active in Town affairs as an Assessor and otherwise, and with the closing of the Mill engaged in a gardening and landscaping business on the premises. It was he who originally had petitioned to have G.B. First zoned as an Agricultural District and thereafter as General Business.

11. Henry E. Lund conveyed the 2.27 acre parcel to C. Lincoln Gills, et al, Trustees by deed dated October 30, 1972 and recorded in Book 1205, Page 300 (Exhibit No. 4). By mesne conveyances Follansbee acquired title to the 2.27 acre parcel by deed from David R. Grenon, et al dated Setember 30, 1981 and recorded in Book 1536, Page 44 (Exhibit No. 9).

12. A blow-up of the relevant portion of the zoning map, as Revised to September 1981, on which counsel for the plaintiff colored in red all General Business Districts is marked Chalk B. The area in dispute is shown as GB19. Chalk C is a copy of said portion of the map mounted on a large folding board with photographs of neighboring sites mounted thereon and attached by ribbon to their location on the map. From an examination of the Chalks, from the testimony and from a stipulation, it appears that the locus is a parcel of land, vacant except for a foundation, with a total area of 2.27 acres or 98,660 square feet of which 52,790 square feet comprises a portion of G.B. First and 45,870 square feet G.B. Second. Directly across Chickering Road is North Andover High School located in a Residential-4 District. Access from it to Chickering Road is permitted only in emergency or on special occasions. A pedestrian overpass runs between it and the westerly side of the road on which locus is located. The playing fields are to the rear of the school and at a higher elevation. The Town yards to which entrance is from Osgood Street adjoin. Situated on the adjoining land formerly in common ownership with locus is the Meadowview Condominium complex consisting of thirteen separate buildings and 166 units. This is an R-5 zone in which such a complex could not today be constructed. Next to locus on Chickering Road to the north, also in an R-5 district, is the Merrimack Valley Motor Inn, a motel with restaurant, lounge and banquet facilities. A motel is allowed in such a district with a special permit from the Board of Appeals. At some distance in a northerly and uphill direction on Chickering Road is a large nursing home and about four blocks beyond it, a well-known Chinese restaurant. South of locus is Walker Road, a portion of the Meadowview land in which Mr. Lund reserved rights as appurtenant to the land now of Follansbee when he conveyed to Demers, et al. Southerly of Walker Road is the old Boston and Maine Railroad right of way and a brook. This formerly was an Industrial District, but it now appears to be Residential-4. To the west this land continues to be zoned as Industrial. It is there that from 1870 to the very recent past that a large manufacturer of textile machines was located. On the west side of Chickering Road and next southerly is the Brookside town house development and the recreation area owned by the plaintiff in an area formerly an Industrial District but zoned R-4 in 1972. Beyond Brookside on the southerly side of East Water Street and southwesterly of Chickering Road are a living and learning center and a senior citizens' project. A block or two beyond, continuing in a southeasterly direction on Chickering Road, there is a car wash and service station. Some distance beyond the car wash on Chickering Road is a market and a Dairy Queen situated not far from the location of the Middle School. Returning to the area of the High School there is a branch bank and a hardware store on the northeasterly side of Chickering Road approximately opposite the living and learning center. Nearby is a small shopping center with a large hardware store, and beyond that, also on Chickering Road, another business block with various service oriented facilities therein. In this area of Chickering Road there are also other General Business districts as appears from Chalks B and C.

13. At the time of the initial zoning of G.B. First as General Business, there were some business activities on Chickering Road. Mr. Lund's nursery and landscape business was conducted on locus. The numbered subsections of Section 3.74 of the 1956 Zoning By-law frequently refer to the then existing business on the parcel. The 1958 Zoning Map (Exhibit No. 12) shows the 1ocations of these subsections. Many of these same or related businesses occupy the same sites today.

The plaintiff argues that the 1956 zoning was invalid as spot zoning and also was violative of the principle of uniformity. The plaintiff similarly attacks the extension of the General Business zone in 1981 as spot zoning.

On all the evidence I find and rule that the rezoning in each instance is valid. The scope of review is narrow where the litigant seeks to abrogate the adoption of a zoning district or amendments thereto through judicial intervention. It is immaterial whether the ordinance or by-law is approved by the judge. The Court's role is to determine only whether the zoning enactment can be held to be an unreasonable exercise of power having no rational relation to the public safety, public health or public morals. As Justice Querico has said in Crall v. Leominster, 362 Mass. 95 , 101, 102 (1972):

"This clear limitation of the scope of judicial review has since been consistently recognized and unwaveringly applied in every case involving this question. We have said repeatedly that if the reasonableness of a zoning by-law or ordinance is fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained.

Another rule which we have followed with equal consistency in the judicial review of municipal by-laws and ordinances is that every presumption is to be made in favor of their validity, and that their enforcement will not be refused unless it is shown beyond reasonable doubt that they conflict with the applicable enabling act or the Constitution. We applied that rule in the first decision of this court involving a zoning ordinance, viz. Inspector of Bldgs. of Lowell v. Stoklosa, 250 Mass. 52 , 62, and in numerous subsequent cases."

Accord: Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 593-4 (1949). Sturges v. Chilmark, Mass. (1980). [Note 4] The burden of proof is on he who attacks the by-law.

In the past, it was important that similar districts within a municipality were to have similar regulations. Caires v. BuildingCommissioner of Hingham, 323 Mass. 589 , 594 (1949), but Chapter 40A §lA, inserted by St. 1975, c. 808 eliminates the pre-existing language as to uniformity. However, there is no doubt that uniformity was a requirement as to the 1956 action, and I have reviewed the rezoning of both portions of locus in the light of such requirement. I have assumed without deciding that despite the passage of 25 years from the date of the town meeting at which the change in zone was adopted and despite the fact that the change was prior to the acquisition by the plaintiff of its real property, the plaintiff may question the action of the 1956 town meeting. Absent any evidence of laches or estoppel I have dealt with the arguments of the plaintiff on the theory that the 1956 by-law was open to attack.

The issues as to uniformity of treatment of two districts having similar characteristics and spot zoning are related, but they in fact comprise two somewhat different principles. So far as uniformity is concerned, it was grounded in the idea that areas with similar characteristics should be similarly zoned. The plaintiff contends that G.B. First was no different than the surrounding area when the 1956 town meeting voted to zone it as General Business. [Note 5] However, an existing use of a property can be the distinguishing characteristic as is illustrated by the decision of the Appeals Court in Woodland Estates, Inc. v. Building Commissioner of Methuen, 4 Mass. App. Ct. 757 (1976). In 1956 there was a landscaping operation and nursery garden located on locus in a small shack-like building. The adjoining land to the northwest and north had not as then been built upon, but it was subsequently to become in one instance a large condominium complex and in the other a motel with commercial facilities. To the immediate south of G.B. First was an Industrial Zoned district wherein was located the Boston and Maine Railroad and this district continued to the south and west. It abutted G.B. First on both the south and west. Chickering Road was the easterly boundary of G.B. First. The land adjoining on the north was zoned Residential, but G.B. First was sufficiently different so that it was not required that it be classified as either Residential or Industrial which were the two adjoining districts. There were similar areas of small businesses situated on Chickering Road and which are still in existence today which also were zoned General Business in 1956. When G.B. Second was added to the General Business District in 1981, it was merely a change of the boundary of the district which lies within the legislative discretion of the Town meeting. See Cohen v. Lynn, 333 Mass. 699 , 704 (1956) Rosko v. Marlborough, 355 Mass. 51 , 53-54 (1968). It is apparent that the then owner of the locus, may have benefitted from the 1981 amendment as indeed may Follansbee. But there were other reasons for the change. The Town meeting may have concluded that in the light of 1981 requirements a larger business district was required to be viable, that a local business district would better serve the neighborhood with its high density residential uses and be a convenience to the public, and that it would be inappropriate to continue the residential zoning with the burdens such building might place on the Town in the days of Proposition 2 1/2. In any event the decision was the Town's and in reaching it, I find and rule that it has not been shown to have contravened the mandates of Chapter 40A or the Constitution. It is well established that a municipality has wide latitude to determine the location of zoning district boundaries which it may re-examine from time to time and shift as sound zoning principles dictate. Shapiro v. Cambridge, 340 Mass. 652 (1960) Canteen Corporation v. Pittsfield, 4 Mass. App. Ct. 289 (1976).

In our present case, it was within the Town's power to review the district boundaries and to conclude that it was more appropriate to enlarge the existing business district by adding the area in question rather than leaving it as part of the abutting residential district. The Town meeting members may with the adjoining motor inn and the condominium complex of some residential density, it would be undesirable to have single family residences constructed between the General Business District and the high density and commercial uses then in existence. The zoning by-law itself recognized the desirability of similar uses in case a lot in one ownership on June 5, 1972 was divided by a district line. Section 4.11 (3) provides that with a special permit the regulations applicable to the greater area may be deemed to apply to a depth of 100 feet beyond the district line. I find nothing volative of the principle of uniformity in the adoption in 1956 and 1981 of the amendments creating G.B. First and G.B. Second. I find and rule on all the evidence that the creation of the General Business District was in conformance with the uniformity requirements of Chapter 40A.

The plaintiff's principal attack is rooted in the contention that spot zoning permeates the two zoning amendments here under consideration. It is not the size of the zone which is determinative on the question of spot zoning, for many districts of the same general size have been upheld, ranging from 41,230 square feet in Henze v. Building Inspector of Lawrence, 359 Mass. 754 (1971), 92,188 sqaure feet in Vagts v. Superintendent and Inspector of Buildings of Cambridge, 355 Mass. 711 (1969), 19,000 square feet in Peters v. City of Westfield, 353 Mass. 635 (1968), 26,830 square feet in Kennedy v. Building Inspector of Randolph, 351 Mass. 550 (1967), 80,230 square feet in Sullivan v. Board of Selectmen of Canton, 346 Mass. 784 (1964), 65,920 square feet in Martin v. Town of Rockland, l Mass. App. Ct. 167 (1973), and about five acres in both Lanner v. Board of Appeals of Tewksbury, 348 Mass. 220 (1964) and Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38 (l975). In any event, size of the zone is a local concern which the Courts will not overturn.

As I have said in the recent decision of Moskow, et al v. City of Newton, Miscellaneous Case No. 106294, "the decisive elementin this aspect of the law is not whether a parcel has been singled out for less restrictive treatment than that of surrounding land of similar character, but whether this has been done for the economic benefit of the owner of the lot and not to serve the public welfare." This governing principle was established by the Supreme Judicial Court in the case of Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 546 (1949) and was discussed at length by Chief Justice Tauro in Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339 , 361-363 (1973).

The plaintiff contends that in 1956 the Town adopted the small General Business districts to favor the owners thereof who werethen using the properties for such purposes and not to benefit the community as a whole. I cannot accept this contention. In 1956 the Town was concerned with its future growth and attempted to resolve problems which this would present by adopting a long-range plan for use of the lands in the Town. It was apparent that the days of North Andover as an agricultural community, if indeed it were that in 1956, were numbered, and it was open to the Town meeting to plan for the coming years and in a way that it deemed preferable. The draftsmen of the zoning by-law apparently considered the advisability of providing that existing business should be treated as non- conforming with their existence gradually phased out as against the recognition of their then locations by the creation of zones in which the use was authorized and concluded that it was better to have existing uses perpetuated. The Town meeting accepted this recommendation and adopted the zoning by-law with General Business Districts encompassing areas then so used. The decision was the Town meeting's alone. It is not incumbent upon the Courts to say that it would have been better municipal planning to have had strip zoning to a certain depth along principal thoroughfares or to have isolated business districts of larger areas in certain sections of the Town. The legislative authority may well have reasoned that with the nature of North Andover it would better serve local neighborhoods to have small local areas of business. While the owners of such land may have benefited financially, there are other reasons for the difference of treatment which serve the public welfare. The Town was entitled to plan for the future, Lamarre v. Commissioner of Public Works of Fall River, supra, and it was within its competence to decide that the rezoning was "reasonably related to public convenience and welfare and calculated to encourage the most appropriate use of land throughout the city." Peters v. Westfield, 353 Mass. 635 , 639 (1968). The plaintiff had not borne the burden of proving that it was not.

In many ways, the present case is similar to Lanner v. Board of Appeals of Tewksbury, 348 Mass. 220 (1964). In Lanner a five acre plot was cut out of a 45 acre property for a local business district. The Court considered the change in the community from a rural area to residential, induced by an influx of people to whom the area had become accessible, and found that such changes made it appropriate "for the town to review its zoning regulations, to take into account its probable future development and to plan for the welfare of its inhabitants, present and future." (at page 229). It found, as I do here, that small business areas with food stores and shops, are often convenience, and sometimes a necessity, in or near a large residential area. The Court held that the vote of the town "emphasizes genuine and general public interest in the establishment fo the local business district transcending any concern for . . . private advantage." (at page 230). The similarity to Lanner in the present case is apparent here. The Town created G.B. First in 1956, it readopted this provision in 1972 and by implication affirmed it in 1981. In 1981 it increased the area of the business zone by adding to the district.

On all the evidence I therefore find and rule that the General Business District created in 1956 and expanded in 1981 is sufficiently dissimilar from the adjoining land to withstand attack on the ground of uniformity; that said district was not adopted either in 1956 or 1981 merely for the financial benefit of the owners thereof; that there were several reasons for the Town meetings to establish said general business district which would further the public welfare; that the action of neither Town meeting may be interdicted as spot zoning; that the reasonableness of the by-laws is fairly debatable and that it has not been shown beyond a reasonable doubt that they conflict with Chapter 40A or the Constitution.

Judgment accordingly.

exhibit 1

Plan of Land


[Note 1] All recording references herein are to said Registry of Deeds.

[Note 2] Technically the plaintiff therefore should have attacked the 1972, as well as the 1956 by-law and map. In view of the result I have reached, nothing turns on this.

[Note 3] The parties stipulated that "Brookside which is composed of 29 townhouse units" is maintained by the plaintiff, a non-profit Massachusetts corporation which owns a cabana, pool and a tennis club.

[Note 4] Mass. Adv. Sh. (1980) 815.

[Note 5] In fact, the language of the article adopted at the 1981 town meeting can be construed as an affirmation of the previous zoning of G.B. First. Since the result will not be different, however, I have treated the action of the 1956 town meeting separately.