TOWERMARC CANTON LIMITED PARTNERSHIP AND TOWERMARC CORPORATION vs. TOWN OF CANTON.

This is an action, which appears to be one of first impression, in which the plaintiffs seek declaratory relief pursuant to G.L., c. 240, § 14A and G.L., c. 185, § l (j 1/2). [Note 1] The underlying issue concerns the applicability, or non-applicability, of an amendment to the zoning by-law of the Town of Canton ("the by-law") to a proposed project ("the project") to be constructed on property of the plaintiffs. The plaintiffs filed a motion for summary judgment, on the basis of the pleadings, attached exhibits, and certain facts to which the parties agreed at the oral argument on that motion. Dorothy P. Vazza ("Vazza"), a Canton resident whose property does not abut the project, moved to intervene. After hearing, that motion was denied upon assurances from counsel for the defendant Town of Canton that the Town would vigorously defend this action. Vazza was permitted to file an amicus curiae brief; and, although her formal motion for leave to present oral argument at the hearing on the motion for summary judgment was denied, her counsel was permitted to argue at the conclusion of that hearing.

The following are the undisputed facts which enable the Court to render summary judgment in the form of declaratory relief as set forth later in this decision:

1. The plaintiff Towermarc Corporation is a Massachusetts corporation with its usual place of business at 260 Franklin Street in Boston, Massachusetts. Towermarc Corporation was the holder of the purchaser's interest under a purchase and sale agreement respecting certain property located at the intersection of Green and Royall Streets in Canton ("the property"), upon which the project is slated to be constructed.

2. The plaintiff Towermarc Canton Limited Partnersip is the successor-in-interest to Towermarc Corporation as the fee owner of the property. Towermarc Corporation and Towermarc Canton Limited Partnership are hereafter collectively referred to as "Towermarc".

3. Towermarc is the holder of an assignment of rights and obligations from Blueview Realty Trust (the original sellers) and Blue View Associates Joint Venture (in which Towermarc is a joint venturer), entities which hold, have held, or may hold record title in the property at various times during the pendency of this litigation. Under the assignment, Towermarc is designated as the entity with the right and the obligation to prosecute this litigation in order to avoid repeated motions to amend by substituting various plaintiffs as the project is proceeding.

4. The defendant Town of Canton ("the Town" or "Canton") is the municipality in which the property is situated.

5. Towermarc submitted a site plan to the Board of Appeals of the Town of Canton ("the Board") in connection with an application for site plan approval under the by-law. The Board held a duly noticed public hearing on August 13, 1987 for the purpose of considering Towermarc's application for site plan approval.

6. The Board voted unanimously to approve Towermarc's site plan, subject to terms and conditions set forth in the Board's decision, which was issued on December 3, 1987. The Board endorsed its approval upon the site plan under date of December 8, 1987; and the decision and the plan were filed with the Town Clerk on that date.

7. In a timely fashion thereafter, Vazza filed an appeal in the superior court department from the allowance of the application for site plan approval, pursuant to G.L., c. 40A ("the c. 40A appeal"). [Note 2] As of December, 1987, and through to the present, the property has been situated in a Limited Industrial District. Throughout that same time period, the by-law has required site plan approval in all Non-Residential Districts, including Limited Industrial Districts, for the construction of all commercial buildings. The project involves construction of commercial buildings, which use is permitted as a matter of right in the district.

8. As of December, 1987, the by-law provided as follows with regard to height restrictions in Limited Industrial Districts:

Forty feet plus one foot for each additional foot by which: (a) the set back exceeds the required set back distance, or (b) the narrower side yard exceeds the required side yard width, or (c) the rear yard exceeds the required rear year depth, whichever of the three additional distances is smallest.

9. Under the by-law that existed in December of 1987, Towermarc could construct its proposed two office buildings to the intended height of eight stories of somewhat in excess of 100 feet each as a matter of right, subject to obtaining site plan approval, under the by-law.

10. Subsequent to the rendering of the Decision by the Board of Appeals and the filing of the Decision with the Town Clerk, the Planning Board of the Town of Canton published notice of a hearing on a proposed zoning change which would strike portions of the Section IX Height Regulations, subsection A, as quoted above in paragraph 8, and substitute a height maximum of "40 feet or four stories, whichever is lower."

11. At the Special Town Meeting held on October 17, 1988, it was voted to amend the by-law by striking portions of the existing height regulations and substituting a height maximum of "forty feet or four stories, whichever is lower" in limited Industrial Districts (the 1988 amendment).

12. Towermarc became concerned that the Town would seek to apply the new height restriction to the project, and therefore, filed this action seeking declaratory relief on January 27, 1989.

13. On April 11, 1989, the Town filed its Answer taking precisely the position about which Towermarc had been concerned, to wit: that the amendment to the by-law restricted the maximum height of the office buildings which Towermarc plans to build to forty feet or four stories, whichever is lower.

After reviewing the pleadings, attachments, oral stipulations and admissions, and other matters entitled to consideration under Mass. R. Civ. P. 56, I rule that there is no genuine issue of material fact and that the case is therefore ripe for summary judgment. See Community National Bank v. Dawes, 369 Mass. 550 (1976).

No material fact being in dispute, the Court is left with one predominant question of law: Does the 1988 zoning by-law amendment altering the height restriction in Canton's Limited Industrial District apply to Towermarc's proposed project in view of the fact that the Board had previously granted Towermarc's application for site plan approval?

I rule that the 1988 zoning by-law amendment does apply to Towermarc's proposed project for the reasons which will be stated hereinafter.

The plaintiffs argue that the freeze provision of G.L. c. 40A, § 6 should apply to site plan approvals. Section 6 provides, inter alia, as follows:

. . . a zoning ordinance or by-law shall not apply to . . . a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five . . . (emphasis added)

It is a well established rule of statutory construction that in determining the scope of a statute, courts first look to the statute's language and, if the language is unambiguous, and in the absence of a clearly expressed legislative intent to the contrary, that language must be regarded as conclusive. Bronstein v. Prudential Ins. Co. of America, 390 Mass. 701 , 704 (1984). In other words, when no ambiguities exist on the face of the statute, a court should simply enforce the statute according to its terms. Hashimi v. Kalil, 388 Mass. 607 , 610 (1983).

Section 6 is clear on its face. Special permits and building permits are explicitly afforded a freeze protection, while site plan approvals are not at all mentioned in § 6. The guide to statutory construction, Maxim expressio unius est exclusio alterius, supports the conclusion that the legislature did not intend to reach site plan approvals through the freeze provision of § 6. See Brady v. Brady, 380 Mass. 480 , 484 (1980). When the legislature expressly mentioned special permits and building permits, it excluded by implication other similar matters not mentioned.

It is not surprising that site plan approvals are not mentioned in § 6. That form of zoning regulation is a creation of municipal zoning bodies and is not specifically mentioned in G.L. c. 40A. Compare Y.D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 (1970) (determining that the site plan approval by­law at issue was a permissible form of zoning regulation) with G.L. c. 40A, et seq. Site plan approvals are a permissible form of zoning regulation which are not explicitly authorized by the General Laws. It is therefore understandable that G.L. c. 40A, § 6 would not expressly include site plan approvals. Moreover, when c. 40A was comprehensively revised in 1975, site plan approval by­laws had been in use at least as early as 1970 when Y.D. Dugout was decided by the Supreme Judicial Court. It is presumed that the legislature must have been aware of the concept of site plan approvals in 1975, and for whatever reason, chose not to incorporate that type of zoning regulation into the freeze provisions c. 40A, § 6.

The plaintiffs, however, argue that the exclusion of the term site plan approval is not conclusive because that term, as defined by the Canton by-laws, falls within the definition of special permit as contemplated by § 6. [Note 3] The plaintiffs rely heavily on Y.D. Dugout in arguing that; "one, in certain situations site plan approvals are essentially a form of special permit under a different name; and two, to the extent that site plan approvals are found to differ from special permits, the recipient of a site plan approval has greater property interests than the holder of a special permit and is therefore entitled to more, not less, protection."

In Y.D. Dugout the Supreme Judicial Court considered, inter alia, whether the Canton site plan approval by-law [Note 4] was a proper exercise of the power conferred upon boards of appeal under G.L. c. 40A. While holding that the Canton site plan approval process was a proper exercise of the Board's power, the Court stated that

. . . in substance, that [by-law] may be viewed . . . [as] equivalent to permitting any commercial building construction in such districts only upon special permit if the board determines there is compliance with § III and also with the standards set out in § IV . . .

Y.D. Dugout, 357 Mass. at 31. This language must be viewed in its proper context. The Court, in pertinent part, was determining whether the site plan approval provision of the by-law in issue was a proper exercise of municipal zoning power, not whether the term site plan approval in that by-law was encompassed within the definition of a special permit, and therefore, I conclude that Y.D. Dugout is not controlling on the issue herein.

The parameters for the term special permit are set forth in G.L. c. 40A, § 9. The distinction between special permits under c. 40A and the various site plan approval by-laws promulgated by various towns hs recently been examined by the Appeals Court in two cases; SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984) and in Prudential Insurance Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 (1986). In SCIT, the Appeals Court held that a zoning by-law which conditioned all uses, including uses expressly allowed, in a business district on a special permit exceeded the scope of the delegation of power fixed by the unambiguous language of G.L. c. 40A, § 9. SCIT, 19 Mass. App. Ct. at 110. The Appeals Court reasoned that G.L. c. 40A did not contemplate that once a zoning district was established and uses within it authorized as of right, conferral on local zoning boards of a roving and virtually unlimited power to discriminate as to landowners similarly situated. Id. at 108.

In Prudential the defendant Board appealed from a judgment of the superior court annulling the Board's decision to deny Prudential's application for site plan approval. Prudential, 23 Mass. App. Ct. at 279. The Board argued that the site plan approval in that case involved a proceeding analogous to an application for a special permit, [Note 5] and that the judge had failed to take into account the discretion conferred on a local zoning board in passing upon such applications. Id. at 280. The Appeals Court in affirming the decision of the Superior Court, stated "that a use allowed as of right cannot be made subject to the grant of a special permit inasmuch as the concepts of a use as of right and a use dependant on discretion are mutually exclusive." Id. at 281. The Appeals Court cited the Y.D. Dugout case as establishing that the language used in the site plan approval by-law at issue imposed "regulation of a use rather than its prohibition." Id. at 282. Prudential established that zoning boards in considering applications for site plan approval do not have the same discretion which they have when considering applications for special permits. The Court also examined the difference in the standard of judicial review between special permits and site plan approvals. After noting that in both cases a de novo hearing is conducted, the Court cited the well established standard of review for special permits, namely that, a court cannot substitute its judgment for that of the board and that a court cannot annul a board's decision absent a ruling that the decision was based on legally untenable grounds, or was unreasonable whimsical, capricious or arbitrary. Id. at 280. In setting forth the standard of review for site plan approvals, the Appeals Court stated the court essentially only need examine the proposal to see if there were any problems which were so intractable that there was no reasonable solution. Id. 282-83. Short of making such a finding, a reviewing court is not required to give the Board's decision any deference. Id.

The Canton by-law itself recognizes a distinction between its site plan review regulation and its special permit regulation. The Canton by-law requires that both site plan approval and a special permit are required whenever any "commercial" use is contemplated which is not as of right in any non-residential district. The fact that both site plan approval and a special permit may be required for the same project indicates that the two regulations represent two distinct and separate steps within the Canton by law. The distinction between the two regulations is further highlighted when the standards for the granting of a special permit under the by-law are contrasted with the standards for the approval of a site plan under the by-law. Pursuant to § IV D. 4. of the Canton by-law, the "general conditions for approval" of a site plan are as follows:

In considering a site plan under this Section the Board of Appeals shall assure, to a degree consistent with a reasonable use of the site for the purposes permitted or permissible by the regulations of the district in which located:

a) Protection of adjoining premises against detrimental or offensive uses on the site.

b) Convenience and safety of vehicular and pedestrian movement within the site, and in relation to adjacent streets, property or improvements.

c) Adequacy of the methods of disposal for sewage, refuse and other wastes resulting from the uses permitted or permissible on the site, and the methods of drainage for surface water.

d) Adequacy of space for the off-street loading and unloading of vehicles, good [s], products, materials and equipment incidental to the normal operation of the establishment.

e) Lateral connections of utilities including, but not limited to electric, telephone, and fire alarm to buildings and other structures shall be underground in all cases where the property to be served abuts any street where these utilities are installed underground.

The standard for the grant of a special permit under § XII C. 1. of the Canton by-law basically parrots the language of c. 40A, §9, and is as follows:

Special permits may be issued for uses which are in harmony with the general purpose and intent of the zoning by-law and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions safeguards and limitations of time or use.

The above two standards are clearly different, further indicating that the Canton by-law treats the two regulations as separate and distinct from one another.

General Laws c. 40A, § 9 provides that " . . . a special permit . . . shall lapse within a specified period of time, [which shall] not [be] more than two years . . ." Site plan approvals, unless the town or city by-law provides otherwise, [Note 6] do not lapse at all. If freeze protection applied to site plan approvals an applicant could gain approval for a project, wait until the zoning by-laws and the community were drastically different, then proceed with the project. [Note 7] This could have an undesirable impact upon orderly, planned community land use development.

The plaintiffs' argument focuses on the concept that special permits govern uses only permissible within the discretion of a zoning board of appeals while site plan approvals govern uses as of right, and that other than that distinction, the two regulations are of the same type. This argument is supported by the fact that the two regulations' procedural requirements are almost identical, thereby making them seen similar. The Canton site plan approval by-law, however, makes it clear that site plan approvals govern both uses as of right and uses permissible only upon special permit. The basis of the plaintiffs' argument is therefore not only incorrect but also somewhat misleading. While special permits govern whether a use will be permitted site plan approvals are "an informational tool" used to "regulate" uses. Site plan approvals do not govern whether a use will be permitted. Therein lies the basic difference between the two types of regulation and the reason why the Canton site plan approval by law is not encompassed with the term special permit in G.L. c. 40A, § 6.

For whatever reason, the Legislature, even in the comprehensive revision of c. 40A in 1975, has not included site plan approvals within the freeze protection of § 6. Although the result may be unfortunate, a court cannot insert words into a statute where the language of the statute is clear and unambiguous. Bronstein v. Prudential Insurance Co. of America, 390 Mass. 701 (1984). If an omission from a statute is intentional no court can supply it, and if the omission was due to inadvertence, any attempt to supply it would be tantamount to judicial legislation. Boylston Water Dist. v. Tahanto Regional School Dist. 353 Mass. 81 (1967).

For the foregoing reasons, I rule that the term special permit in G.L. c. 40A, § 6 does not encompass the term site plan approval as used in the Canton by-law and that the plaintiffs' site plan approval did not freeze the applicable provisions of the Canton by­law, and therefore, that the 1988 zoning by-law amendment does apply to Towermarc's proposed project.

Plaintiffs have also made several other brief arguments as to why site plan approvals should be afforded freeze protection. They argue that "this court may determine as a matter of common law that the holder of a site plan approval is entitled to a freeze of the zoning by-law, where a holding to the contrary would deprive a land owner of a portion of the value of his property without just compensation and would treat him in a discriminatory fashion without rational basis for doing so." Zoning law is a matter of statutory law and a court should not, as a matter of common law, create new rights for the holders of site plan approvals. Despite the fact that sound policy reasons may exist for doing so, a court cannot create common law rights with contravene explicit statutory provisions. See Gallagher vs. Goldstein, 402 Mass. 457 , 461 (1988). When sound policy reasons exist for changing a statute, that decisions is for the Legislature. Id. I therefore decline to rule that site plan approvals under the canton by-law have freeze protection as a matter of common law. I next turn to the plaintiffs' constitutional arguments.

The constitutionality of G.L. c. 40A, § 6 was not raised by the pleadings in this case, rather, it was raised for the first time in the plaintffs' brief in support of their motion for summary judgment. Also, the plaintiffs have cited no case law to support their constitutional arguments for freeze protection of site plan approvals. The claim that a failure to find a zoning freeze under the present facts would constitute a taking of property without just compensation is incorrect. Both Federal and Massachusetts courts have held that changes in zoning regulation do not constitute takings unless the rezoning deprives the landowner of the ability to derive economic benefit from their property. See Williamson Co. Reg. Plan. Comm. v. Hamilton Bank, 473 U.S. 172, 186-87 (1985), Citing Penn. Central Transp. Co. v. New York, 438 U.S. 104, 136-37 (1974) (No taking unless ability of plaintiffs to derive economics benefit from property is shown); Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221 , 235-37 (1972), Cert. denied, 409 U.S. 1108 (1973) (loss of value of 88% after enactment of flood plain zoning by-law did not constitute taking). There is nothing before this court to show that the value of the plaintiffs' property has been reduced to the point where a taking could be found, other than the fact that, absent freeze protection, they cannot build the project they contemplated. I therefore decline to rule that there was an unconstitutional taking without compensation in this case if plaintiffs' site plan approval is not protected by a zoning freeze.

The plaintiffs finally argue that they are denied equal protection if site plan approvals do not enjoy freeze protection while special permits and building permits do. The plaintiffs would have had freeze protection if they had obtained a building permit. They argue, but have not established, that it would have been fruitless to apply for one because the building inspector would not issue a building permit until the appeal period on the decision to issue the site plan approval had expired, and then certainly would not issue one when that decision was appealed. The validity of this argument can not be tested on the record in this case because the plaintiffs did not even apply for a building permit. In view of the above, I decline to rule that the plaintiffs are unconstitutionally denied equal protection by the fact that no freeze protection is afforded to their site plan approval. Moreover, in a proceeding such as this brought under G.L. c. 240, 14A where the Court has subject matter jurisdiction to determine ". . . the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of [land, or to determine] the extent to which any such municipal ordinance, by- law or regulation affects a proposed use, enjoyment, improvement or development of . . . [land]", it would appear to be without subject matter jurisdiction to determine the constitutionality of G.L. c. 40A, § 6.

For all of the foregoing reasons, the plaintiffs' motion for summary judgment is denied for the declaratory relief requested and, pursuant to Mass. R. Civ. P. 56(c), summary judgment shall enter in favor of the defendant.

Judgment to enter accordingly.