MISC 129405

February 7, 1989

Norfolk, ss.



The Plaintiff filed its complaint in this matter on August 31, 1988 seeking a declaratory judgment, pursuant to G.L. c. 240, §14A, to determine whether or not a "site plan review special permit" is required under the Zoning By-law ("By-law") of the Town of Braintree for the installation of certain fire detection and suppression equipment and related structures at its facility in Braintree. The Plaintiff also appeals the decision of the Braintree Planning Board ("Board") denying its application for a "site plan review special permit" for various reasons, including the requirement in the By-law as followed by the Board, that four affirmative votes were necessary to grant the permit. The Plaintiff further appeals, pursuant to G.L. c. 40A, §17, the Board's decision denying its application for a "site review special permit."

This cause came on to be heard on November 28, 1988 on the Plaintiff's motion for summary judgment.

I rule that there are no genuine issues of material fact concerning the matter under G.L. c. 240, §14A or as to the requisite vote necessary to approve the "site plan special permit." Accordingly, as to these issues, the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P.; Community National Bank v. Dawes, 369 Mass. 550 (1976).

After considering the affidavits, the uncontested portions of the pleadings and arguments of counsel, I find the following facts to be undisputed:

1. The Plaintiff is the owner of approximately eleven acres of land located at Lancaster Road and Hill Avenue in Braintree ("Property"). The Plaintiff operates a hazardous waste facility thereon.

2. Since May 4, 1987, the Property has been zoned "highway/business", which zone does not permit such facility, however, the property continues to have the rights of industrial zoning due to the timely filing of a perimeter plan under G.L. c. 41, §81P.

3. The Plaintiff maintains a number of storage tanks containing flammable materials on the Property in an area enclosed within a concrete dike. The Plaintiff proposes to install an automated foam fire suppression system, consisting of pipes, sprinklers, detectors and related fixtures located largely over the tanks. The equipment, in turn, will be protected from the weather by a roof consisting of corrugated metal panels. The installation will be supported on steel columns and rafters. It will be approximately 36 feet high, 178 feet wide and 150 feet long.

4. In early March of 1988, the Plaintiff applied for a building permit for the above project, however, the Building Inspector, believing site plan review to be a prerequisite, denied the permit.

5. On March 11, 1988, the Plaintiff filed for a "site plan review special permit", preserving its position that no such review is necessary in this instance. The matter was heard by four members of the five member Planning Board on April 19, 1988. On August 26, 1988, the Board voted to deny the application by a vote of three in favor to one opposed.

In consideration of the foregoing, I find and rule that the installation as proposed by the Plaintiff requires site plan review under §137-711 of the By-law. The language cited by both parties is found in paragraph "D" of Section 137-711 and reads in part:

. . . The site plan review requirements of this section shall be required for . . . all projects in the general business, highway business, and industrial zones where the first floor area of the new structure, or extension of an existing structure is 500 square feet or more.

While the Plaintiff's contention that the floor area of the "new structure" will not exceed 500 square feet may have merit when read with the By-law definition of "Floor Area-Gross", I find that what is proposed is not a "new structure" with less than 500 square feet of floor, but rather, it is an extension of an existing structure, specifically the diked tank areas, and hence, site plan review is required.

Having found that the By-law requires site plan review for the Plaintiff's project, I find that the three-to-one vote of the Planning Board approving such plan was sufficient and did, in fact, grant approval to the Plaintiff.

As a preliminary matter, I find the term "special permit for site plan review" as used throughout the By-law to be a misnomer inasmuch as the procedure described in the By-law could more properly be termed "site plan review" or "site plan approval", rather than a "special permit" as such is defined by statute. A brief review of c. 40A, §9 discloses that the permit therein envisioned pertains to specific uses. Granted, the second paragraph of that section refers to the provision of "certain open space, traffic or pedestrian improvements . . . or other amenities", but such items are tied directly to an increase in permissible density of population or intensity of a particular use. By comparing the statutory requirements of c. 40A, §9 with the requirements of section 135-711, two very different types of review are demonstrated.

The By-law states at section 135-711 (B)(1) that applications for a special permit for site plan review shall be evaluated and acted upon by the Planning Board as provided in Article V, Section 135-502.

Section 135-502 deals with special permits as authorized by c. 40A, §9. Both the By-law and the statute require affirmative votes of at least four members of a five member board to authorize special permits. As stated above, however, regardless of the By-law nomenclature, Section 135-711 authorizes site plan review and not special permits. It is clear that special permits and site plan review are different in nature and designed to perform separate and different functions. Generally, if the specific area and use criteria stated in the By-law are met, the Board has no discretionary power to deny approval. Rather, the Board is limited to imposing reasonable terms and conditions. Prudential Insurance Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986). Moreover, the By-law itself recognizes the distinctions at Section 135-711 (C) (5), while stating in part: ". . . All site plans complying with this section and which do not tend to impair the health, safety, convenience and welfare . . . in general shall be approved." There is little question that the Town of Braintree is well aware of this distinction. See SCIT v. Planning Board of Braintree, 19 Mass. App. Ct. 101 , 105, Note 12 (1984).

By statute, the affirmative vote of four members of a five member board ("super majority") is required for approval of a special permit (c. 40A, §9), variance, or to reverse any order or decision of any administrative official (c. 40A, §15). There is no such requirement for approval of a site plan approval application. Where the legislature has imposed a super majority vote requirement in the foregoing situations arising under c. 40A, the absence of such requirement elsewhere is a persuasive indication of legislative intent. Harris v. Wayland, 16 Mass. App. Ct. 583 , 586 (1983). It is well-established in municipal common law that, in the absence of a contrary statutory provision, a majority of a quorum consisting of a simple majority of a collective body is empowered to act for that body. Id.

While it is true that the zoning power is one of the independent municipal powers of cities and towns included in the broad grant of powers to municipalities to adopt regulations for the protection of the public health, safety or the general welfare in Section 6 of Article 86 of the Constitution ("The Home Rule Amendment"), Board of Appeals of Hanover v. Housing Appeals Court, 363 Mass. 339 , 359 (1972), this amendment has not altered the legislature's supreme power in zoning matters. As authorized by the Amendment and recognized in c. 40A, municipalities may establish various zones, determine density and use requirements peculiar to that municipality and amend such regulations as may be reasonably desirable. However, the legislature in the exercise of its reserve powers under §8 of the Amendment has in c. 40A established a method uniform throughout the Commonwealth for the administration of zoning regulations. There is no super majority requirement for site plan approval in the statute and no authority elsewhere for a municipality to adopt one.

Accordingly, I find that such portions of the By-law as require a four vote approval for site plan special permit applications are invalid. Inasmuch as a simple majority is all that is necessary and consistent therewith, I find that the vote of the Board on August 26, 1988 approved and granted the Plaintiff's application.

Should the Plaintiff's appeal under c. 40A, §17 become material, I find that insofar as that section requires a hearing de novo, and as the Defendants have raised certain material questions of fact, the motion for summary judgment thereunder must be denied.

Judgment accordingly.