MISC 123484

June 8, 1989

Barnstable, ss.



The Plaintiffs commenced Miscellaneous Case No. 123484 on May 26, 1987 seeking a determination, pursuant to G.L. c.240, §14A, that the Defendant Town's ("Town") rezoning of a certain parcel of real estate located at 850 West Falmouth Highway in West Falmouth, Massachusetts ("Locus"), shown as Parcel No. 15 on Sheet No. 15 of the maps filed with the Office of the Assessors for the Town of Falmouth (Exhibits "A" and "K"), from a "Residential" to a "Business-3" zoning district, constitutes spot zoning in violation of G.L. c. 40A, and the equal protection clauses of the Federal and State Constitutions. On October 7, 1987, the parties assented to the motion of Robert Pena ("Pena") to intervene as a Defendant.

On May 8, 1989, the parties filed a Stipulation of Agreed Facts, with twelve exhibits (Exhibits "A" through L'') attached thereto. Briefs were submitted on behalf of Robert Pena and the Town of Falmouth; the Plaintiffs elected to forego filing of the same. Certain of the stipulated facts are included in the findings set forth below and all exhibits are incorporated herin for the purpose of any appeal.

On all of the evidence, I make the following findings of fact:

1. Locus has been in the Pena family since 1919. The Penas have utilized the front portion of Locus for the operation of various businesses since at least 1929. Title to Locus has been in Robert Pena since 1977.

2. At a Special Town Meeting held in June of 1947, the Town voted to amend the Falmouth Zoning By-law ("By-law") as follows:

. . . [to] amend the Zoning By-law and so note on the Zoning map by changing from a Single Residence District to a Business District a certain parcel of land owned by Theresa Pena and located on the Westerly side of Route No. 28[A] in substance as follows:

Easterly by said Route No. 28 a distance of 250 feet, Southerly by land of Domingo Pena et als 300 feet ; Westerly by land of said Theresa Pena 250 feet ; and Northerly by land of Mrs. Louis Pena and of Manuel Cardoza 300 feet. (See Exhibit "C".)

The effect of this zoning amendment was to create a "Business-3" zoning district over a rectangular portion of Locus, consisting of 300± feet in length and containing 250± feet of frontage on Route No. 28A.

3. Following the 1947 zoning amendment, the Pena family commenced the operation of certain business activities upon the aforesaid business district portion of Locus. At present, a restaurant, ice cream shop and ice house are located and operated upon this area of Locus. The balance thereof remains unimproved except for a concrete garage which is under lease to an automobile repair business.

4. In August of 1986, Pena submitted an application to the Falmouth Planning Board seeking to expand the business-zoned portion of Locus to an additional 2.5± acres of land situated westerly and southwesterly of the restaurant 1ocated thereupon for purposes of constructing a mixed development of commercial and residential uses, including twenty-four (24) housing units, certain of which units would qualify as moderate/low income housing under the provisions of G.L. c. 40B, §21.

5. On October 8, 1986, the Town voted to amend its By-law as follows:


. . . by extending the existing Business 3 District on route 28A in West Falmouth so as to include the area of land located to the west and southwest of the present Domingo's Olde Restaurant. . . . ("Zoning Amendment" or "Amendment") (See Exhibit "E").

The minutes of this Special Town Meeting contain the following language:

The Planning Board submitted . . . its recommendation to the meeting . . . for adoption of Article 73 for the following reason: Mr. Pena has voluntarily submitted a deed restriction so that this zone change can only be used for an affordable housing project (emphasis added). . . .

6. The Department of the Attorney General approved the Zoning Amendment on November 25, 1986. (See Exhibit "G".)

7. On February 24, 1987, Pena applied to the Falmouth Board of Appeals ("Board") seeking a Special Permit, pursuant to Sections 7300 and 3366(a) (5) of the By-law, for the construction of twenty-four (24) multi­family dwelling units, including eight (8) units of affordable housing, and further seeking a Comprehensive Permit, pursuant to G.L. c. 408, §21, for the construction of the same.

8. At a public hearing held on March 18, 1987, the Board issued its decision granting Pena's applications for both Permits, subject to certain conditions enumerated therein. (See Exhibits "H" and "I".)

9. The Plaintiffs appealed the Board's decision to the Barnstable Superior Court pursuant to G.L. c. 40A , §17. The Superior Court annulled the grant of the Special Permit and affirmed the grant of the Comprehensive Permit. Cross appeals of the Superior Court decision are presently pending in the Appeals Court.

10. The Plaintiffs herein, as owners of land either abutting or adjacent to Locus, challenge the rezoning of Locus to a "Business-3" zoning district on the grounds that it constitutes spot zoning.

"Spot zoning" arises where a zoning amendment effectively singles out one parcel of land for treatment different from that accorded to similar, surrounding land which is indistinguishable from it in character, for no other reason other than to confer an economic benefit upon the owner of that parcel. Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545 (1949) ; Board of Appeals of Hanover v. Housing Appeals Committe in the Department of Community Affairs, 363 Mass. 339 , 361-362 (1973) ; Canteen Corporation v. City of Pittsfield, 4 Mass. App. Ct. 289 , 293 (1976). In reviewing the validity of a zoning amendment which is challenged on spot zoning grounds, the Court will sustain the amendment unless it bears no substantial relationship to the expressed purposes of General Laws, Chapter 40A, the Zoning Act. Lamarre at 545; Shapiro v. City of Cambridge, 340 Mass. 652 , 658 (1960) ; Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964) ; Canteen at 292 ; Woodland Estates, Inc. v. Building Inspector of Methuen, 4 Mass. App. Ct. 757 , 760-761 (1976). Conversely, the Court will invalidate the zoning amendment if it is arbitrary, unreasonable or substantially unrelated to the public welfare, safety, health, morals or convenience. Canteen at 292 citing Schertzer v. City of Somerville, 345 Mass. 747 , 751 (1963).

The Plaintiffs herein assert that the action of the Town in amending its By-law to create a "Business-3" zoning district over Locus amounted to an arbitrary and unreasonable singling out of Pena's property for treatment different from that accorded to similar, surrounding land indistinguishable from it in character, all for Pena's economic benefit. To prevail based on this argument, the Plaintiffs must overcome the strong presumption which the Court will make in favor of the Zoning Amendment's validity. See Smith v. Board of Appeals of Salem, 313 Mass. 622 , 624 (1943); Beal v. Building Commissioner of Springfield, 353 Mass. 640 , 642 (1968); Crall v. City of Leominster, 362 Mass. 95 , 101-102 (1972). Specifically, if the Court finds the reasonableness of the Amendment to be fairly debatable, it cannot substitute its judgment for that of the local legislative body responsible for the enactment of the same. Lamarre at 545, Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 594 (1949); Crall at 101; Canteen at 292.

The record before the Court reveals that Locus is in fact distinguishable from similar, surrounding land. First, as shown on local zoning maps (See Exhibits "A" and "J"), Locus and the property surrounding it to the north, south and west had been zoned "Residential" prior to 1947. Despite such an express zoning classification however, the evidence indicates that the Pena family operated certain business/commercial uses upon Locus as early as 1929, such uses becoming lawful under local zoning, with respect to at least the front portion of Locus, in 1947. Accordingly by conducting such nonconforming uses upon Locus for some eighteen years before the rezoning, the Pena family used their property in a manner which appears from the evidence to be readily-distinguishable from that of surrounding residentially-zoned land. See Woodland at 761-762. The 1986 Zoning Amendment extended this "Business-3" reclassification to the balance of Locus, thus squaring off the existing business area of Locus and rendering possible Pena's plans to construct affordable housing thereupon. Insofar as the Town merely extended the 1947 zoning reclassification of the front portion of Locus to the remaining rear portion of the same, I do not find that its action rises to the level of spot zoning. See Peters v. City of Westfield, 353 Mass. 635 , 638, 639 (1968). Accordingly, there exists on these facts no arbitrary or unreasonable treatment of either land or persons similarly situated, so as to warrant a finding that the Town violated the tenets of G.L. c. 40A or the equal protection clauses of the Federal and State Constitutions.

The evidence further indicates that the Town's motivation in rezoning Locus to "Business-3" from "Residential" was not to confer an economic benefit upon Pena alone, but rather to advance the public welfare, which is chief among the purposes of G.L. c. 40A, the Zoning Act. Lamarre at 545; Caires at 593; Lanner at 228. Massachusetts law is clear that a zoning change affording special treatment to a certain parcel of land in order to encourage the construction of affordable residences in cities or towns faced with a shortage, or lack, thereof, promotes and enhances the public welfare. Lamarre at 546; Board of Appeals of Hanover at 362 ; Henze v. Building Inspector of Lawrence, 359 Mass. 754 (1971). The evidence herein reveals that the Falmouth Planning Board's favorable recommendation of Article 73 (Zoning Amendment) was expressly predicated upon Pena's having voluntarily submitted a deed restriction ensuring that the rezoning of Locus would be utilized solely for the construction of an affordable housing project. It is therefore apparent from the foregoing that, irrespective of the obvious economic advantage to be gained by Pena, the Town rezoned the balance of Locus in 1986 with an eye toward the construction of much needed affordable housing in the Falmouth area. Inasmuch as the Town's motivation is thereby consistent with the promotion of the public welfare, I find that the Zoning Amendment need not be invalidated as spot zoning.

In consideration of the foregoing, I rule in summary that in approving the 1986 Zoning Amendment which reclassified the remaining portion of Locus to a "Business-3" zone, the Town acted in the name of the public welfare and did not arbitrarily or unreasonably single out Pena's parcel of land for treatment different from that accorded to similar, surrounding land solely for the economic benefit of Pena. In so ruling, however, I note that a decision in the pending Appeals Court matter (See Findings No. 8 and 9) upholding the grant of the Comprehensive Permit would render the posture of this appeal moot insofar as it concerns such usage.

Judgment accordingly.