MISC 117462

March 7, 1988

Hampden, ss.



The plaintiffs in this case, John L. Battistoni and Bernardina Battistoni, brought a complaint under G.L. c. 240, §14A and c. 185, §1(j l/2), challenging the validity of a zoning amendment approved by the defendant Town of Southwick in 1985 at its annual town meeting. The amendment in question changed the zoning designation of a parcel of land owned by the defendant Raymond N. Johnson from "Residence (R- 40)" to "Business (B)." Johnson operates on said parcel a business called American Lumber and Hardware Co., Inc., formerly Battistoni Lumber Company, which existed on the site as a nonconforming use from approximately 1927 until the time of the zone change. The plaintiffs own a parcel of land and house across the street from the subject parcel.

A trial was held extending over seven days at which a stenographer was sworn to take and transcribe the testimony. Twenty-three exhibits were admitted into evidence and are incorporated herein for the purpose of any appeal. Before the close of trial, the court took a view of the locus and surrounding area in the presence of counsel. Based on all the evidence I find and rule as follows:

1. The plaintiffs, John L. Battistoni and Bernardina Battistoni, are owners of a parcel of land and a residence thereon at 60 Granville Road in the Town of Southwick, Massachusetts. They have resided at that location since approximately 1948.

2. The defendant Town of Southwick is a municipal corporation situate in the County of Hampden.

3. The defendant Raymond N. Johnson (Johnson) is the owner of parcel of land at 61 Granville Road in the Town of Southwick (the locus), which parcel is situated across Granville Road from the residence of the plaintiffs. Johnson is the president of the defendant American Lumber & Hardware Co., Inc., formerly the Battistoni Lumber Company, a retail lumber business that has operated on the locus continuously since 1927. The locus is approximately 8.3 acres in area, 4 to 5 acres of which are used in connection with the lumber business.

4. In 1950, the Town of Southwick enacted its first zoning by-law (the by-law), designating the locus and surrounding area, including said land of the plaintiffs, a "Residence (R- 40)" zone. Thereafter, the lumber business operated as a nonconforming use until 1985, when the zone change that gives rise to this litigation was effected.

5. Article IV, section 2 of the by-law lists specific uses permitted in a "Residence (R-40)" zone, and does not contain any mechanism whereby other uses can be sanctioned by special permit.

6. Article VI, section 1 of the by-law regulates preexisting nonconforming uses, and does not allow for any expansion of such a use, nor for any material alteration of such a use except alterations that would make the use conforming.

7. On March 13, 1985, Johnson petitioned the selectmen of the Town of Southwick to change the zoning designation of the locus from "Residence ( R- 40)" to "Business (B)." After a public hearing on April 4, 1985, the Town of Southwick Planning Board declined to recommend the requested zoning change. At Southwick's annual town meeting on April 17, 1985, the town meeting members voted 64 to 26 in favor of the change, which was approved by the attorney general on June 20, 1985.

8. The defendant Johnson's primary reason for seeking the zoning change was his desire to erect a new building near the present "trucker's entrance," the bulk of which would be used for storage of wood and other materials, and the remainder of which would house offices and a retail display area.

9. Granville Road, also known as Route 57, is a heavily traveled two­lane highway running from east to west between Springfield and the Berkshires. The segment of Granville Road running through Southwick is approximately 36 feet in width and is maintained by the town. The portion of the road where the lumberyard's main customer entrance is located is a "blind curve" which results in poor visibility of vehicles entering and exiting the locus, particularly for westbound drivers.

10. With its present driveway configuration, the lumberyard's customers often must back their vehicles out of the yard and onto Granville Road because there is insufficient room to turn around and pull out in a forward direction. This creates a hazardous traffic situation despite the 35 m.p.h. speed limit on that portion of Granville Road and a "Hidden Driveway" sign posted nearby. Adding to the danger is the fact that customers occasionally park their cars along the shoulder of Granville Road, partially obstructing the sole westbound travel lane.

11. Of the several existing curb cuts that offer access to the lumberyard, use of the current trucker's entrance as the main customer entrance would enhance traffic safety because the trucker's entrance is more easily visible to oncoming traffic on Granville Road.

12. Expansion and improvement of the present paved parking area would enhance traffic safety if it obviated the need for customers to park their vehicles along Granville Road.

13. Presently, wood is stored at various outdoor locations and in open sheds at the lumberyard. Because this wood is not stored in closed buildings, it cannot practically be protected from fire by use of a sprinkler system, and the risk of fire at the lumberyard therefore is high.

14. Of the two fire hydrants that could be used to fight a fire at the lumberyard, the one closest to the present office building has comparatively low water pressure because of its elevation and its location at the end of a water line. Also, that hydrant's location next to a telephone pole and tree would force a fire truck responding to a fire in that area of the lumberyard to park on Granville Road, which would endanger the lives of the firefighters and others. A further problem is that the hydrant in question is located 10 feet from the main office building and might be impossible to use because of intense heat if the office building were on fire. The fire hydrant near the so-called trucker's entrance, where the defendant Johnson plans to erect his new main building, has greater water pressure, can support a more adequate sprinkler system, and can be operated in a safer manner.

15. Presently, the outdoor operation of forklifts at the lumberyard generates dust and noise. Construction of a new indoor storage building would permit operation of forklifts within the building, thereby reducing dust and noise.

16. The defendant Johnson could maintain or remove existing sheds, expand and improve the lumberyard's parking area, and make the trucker's entrance the main customer entrance without any amendment of the by-law.

17. Construction of a new building in a new location on the locus could not be accomplished but for the challenged zoning amendment.

18. Exiting the locus and travelling eastward on Granville Road, one would encounter numerous private residences for approximately a third to a half mile, at which point one would reach the westerly edge of Southwick's main business district. Several residences also exist along Bugbee Road in the vicinity of the locus, one of which is used to manufacture truck caps, apparently in conformance with Article IV, section 2, subsection A-9 of the by-law, which permits certain "customary home occupations" in a "Residence (R-40)" zone.

In their complaint, the plaintiffs allege that the zoning amendment at issue is arbitrary and unreasonable, bearing no substantial relationship to promotion of the health, safety and welfare of the residents of Southwick. [Note 1] To the contrary, the plaintiffs allege said amendment is detrimental to public health, safety and welfare, has no effect other than to confer an economic benefit on the defendant Johnson, and amounts to unlawful spot zoning. Among other relief, the plaintiffs request that the court declare the challenged amendment null and void. In their answer, among numerous defenses, the defendants contend that said amendment does promote the public welfare and safety.

Spot zoning involves the singling out for disparate treatment of one parcel of land from similar parcels in the same zoning district. See Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128 , 133-134 (1941); McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682 , 688-689 (1958); Canteen Corp. v. Pittsfield, 4 Mass. App. Ct. 289 , 293 (1976). Ostensibly, such discrimination runs afoul of both G.L. c. 40A, §4, which requires that zoning ordinances be applied uniformly within each zoning district, and, more fundamentally, the state and federal constitutional doctrine of equal protection. See Crall v. Leominster, 362 Mass. 95 , 101-102 (1972); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 362 n. 15 (1973); Woodland Estates, Inc. v. Building Inspector of Methuen, 4 Mass. App. Ct. 757 , 761 {1976). In practice, however, the enactments of local legislative bodies are accorded a strong presumption of validity, and where some nexus exists between the challenged discrimination and any of the public welfare objectives of our zoning enabling act, courts generally will uphold the local decision. See Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545 (1949); Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964); Sinn v. Board of Selectmen of Acton, 357 Mass. 606 , 609 (1970).

In Massachusetts, our decisions have focused primarily on the situation where a zoning ordinance or by-law or an amendment thereto, singles out a parcel of land for less restrictive treatment than similar parcels in the same zoning district. See, e.g., Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128 , 134 (1941); Beal v. Building Comm'r of Springfield, 353 Mass. 640 , 644 (1968); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 360-361 (1973). In fact, many cases have defined spot zoning narrowly as the "singling out of one lot for treatment different from that according to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner" (emphasis added). See Marblehead v. Rosenthal, 316 Mass. 124 , 126 (1944); Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545 (1949); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 361-362 (1973). At the same time, that one incidental effect of a zoning amendment is to increase or decrease the value of a given parcel of land is a factor to consider in determining the amendment's reasonableness, but is not itself a sufficient basis for invalidating it if the amendment also promotes the public health, safety or welfare. See Kaplan v. Boston, 330 Mass. 381 , 384 (1953); Massachusetts Broken Stone Co. v. Weston, 346 Mass. 657 , 661 (1964); Maider v. Dover, 1 Mass. App. Ct. 683 , 687 (1974).

In the instant case, we need not pursue the spot zoning analysis in greater detail because while the locus indeed has been singled out for disparate zoning treatment, its character cannot be described as similar to that of the other parcels in the area. The locus is the home of a retail business that operated in a residential zone as a nonconforming use for nearly sixty years, and thus "this is not a situation in which one piece of property in a homogeneous area has been singled out for treatment differing from that accorded surrounding land indistinguishable from it in character..." (emphasis added). See Woodland Estates v. Building Inspector of Methuen, 4 Mass. App. Ct. 757 , 761-762. Even if the court were to find that the locus had been singled out from similar surrounding land for disparate zoning treatment, however, a sufficient relation between the amendment and one of the broad public welfare objectives of G.L. c. 40A would render the amendment a valid exercise of the power conferred on municpalities by the enabling act. [Note 2].

Because zoning amendments enjoy a strong presumption of validity, the plaintiff challenging an amendment bears a heavy burden of proof. This burden has been described in various ways, with some cases, for example, holding that "every presumption is to be made in favor of the validity of an amendment, and if its reasonableness is fairly debatable, the judgment of the local authorities will prevail." See, e.g., Caires v. Building Comm'r of Hingham, 323 Mass. 589 , 594-595 (1949); Crall v. Leominster, 362 Mass. 95 , 101 (1972); Canteen Corp. v. Pittsfield, 4 Mass. App. Ct. 289 , 292 (1976). Other cases have stated that "an amendment will be sustained unless there is no substantial relation between it and the expressed purposes of the zoning act. Conversely, it will be held invalid if it is arbitrary, unreasonable, or substantially unrelated to the public health, safety, convenience, morals or welfare." See, e.g., Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545 (1949); Schertzer v. Somerville, 345 Mass. 747 , 751 (1963.); Sinn v. Board of Selectmen of Acton, 357 Mass. 606 , 609 (1970). It also has been held that "every presumption is to be made in favor of the amendment, and its validity will be upheld unless it is shown beyond a reasonable doubt that it conflicts with the enabling act." See Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964); Beal v. Building Comm'r of Springfield, 353 Mass. 640 , 642 (1968); Sinn v. Board of Selectmen of Acton, 357 Mass. 606 , 609 (1970).

At trial, the plaintiffs established that most of the defendant Johnson's objectives in seeking the challenged zoning amendment could be accomplished in its absence. For example, although certain permits would have to be obtained, Johnson could maintain or remove sheds, expand and improve the parking area, and use the existing trucker's entrance to the lumberyard as the main customer entrance consistently with the yard's status as a preexisting nonconforming use in a "Residence (R-40)" zone. If Johnson's evidence had been limited to these matters, a different result might have been reached because regardless of any benefits that might accrue to the public from the aforementioned improvements, there would be no rational or even logical connection between such improvements and the zoning change.

There is at least one objective, however, that the defendant could not accomplish but for the zoning amendment at issue, namely, the erection of a new main building, which the defendant proposes to erect near the so-called trucker's entrance. This fact was not contested by the plaintiffs at trial and was conceded in their memoranda. Johnson established, and I have found, that construction of a new main building in the planned location would promote the public health, safety and welfare by reducing the risk of a fire at the lumberyard and by enhancing the fire department's ability to safely fight and control a fire should one occur.

Even considering all the evidence most favorable to the plaintiffs, I rule that they have not sustained their heavy burden of proof. To say that a zoning amendment will be upheld if its reasonableness is fairly debatable is no different than saying that a party challenging such an amendment must prove that its reasonableness is not even fairly debatable. See Crall v. Leominster, 362 Mass. 95 , 103 (1972). Here, although the plaintiffs successfully discounted much of the defendant's evidence as being unrelated to the zoning amendment at issue, "to secure safety from fire" is one of the expressly permissible objectives for zoning under c. 40A, and I rule that the defendant's evidence on this point alone is sufficient to make the reasonableness of the challenged amendment fairly debatable. Additionally, the goal of diminishing noise and dust in the area is consonant with the public health objectives underlying G.L. c. 40A, and the connection between this goal and construction of a new main building further suggests that the reasonableness of the town's action is at least fairly debatable.

The defendants, Raymond N. Johnson and American Lumber & Hardware Co., Inc., submitted proposed findings of fact and rulings of law. As the court has found the facts in detail and set out the applicable law in its decision, it declines to rule individually on the defendants' numerous requests for findings and rulings.

Judgment accordingly.


[Note 1] Although not material to the disposition of this case, the court notes that the complaint was verified by Richard P. Battistoni, son of the plaintiffs and owner of Interstate Building Supply, Inc., which is a direct competitor of American Lumber and Hardware Co., and which also is located in Southwick.

[Note 2] The current zoning enabling act, G.L. c. 40A, was created by §3 of Chapter 808 of the Acts of 1975. Said Chapter 808 also struck out the former Chapter 40A. Although not incorporated into any general law, §2A of said Chapter 808 lists a number of permissible objectives for municipal zoning laws, which objectives include, but are not limited to, the following:

to lessen congestion in the streets; to conserve health; to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land, to avoid undue concentration of population; to encourage housing for persons of all income levels; to facilitate the adequate provisions of transportation, water, water supply, drainage, sewerage, schools, parks, open space and other public requirements; to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment; to encourage the most appropriate use of land throughout the city or town, including consideration of the recommendations of the master plan, if any, adopted by the planning board and the comprehensive plan, if any, of the regional planning agency; and to preserve and increase amenities by the promulgation of regulations to fulfill said objectives.