SHENG HSIUNG, a/k/a MARK YU v. TOWN OF SWAMPSCOTT.

This cause came on to be heard on the plaintiff's motion for summary judgment and was argued by counsel. Plaintiff, Sheng Hsiung Yu, also known as Mark Yu, brought this action pursuant to the provisions of Mass. G.L. c. 185, § 1 (j 1/2); Mass. G.L. c. 240, § 14A; and Mass. G.L. c. 231A, § 1, et seq.

Plaintiff seeks a determination by the Court that certain provisions of the Zoning By-Law of the Town of Swampscott ("the by- law") are beyond the powers of the Town of Swampscott ("the Town") under the provisions of Mass. G.L. c. 40A and thus are invalid and of no effect. Plaintiff also seeks a declaration that he is entitled to use his parcel of land that is situated in a business- zoned district in the Town for any purpose that is described as being allowed therein without having to apply for a specal permit.

The Department of the Attorney General of the Commonwealth was duly notified of this action and the issues involved and responded with a statement that said department had no intention of intervening as a party.

After reviewing all matters entitled to consideration on a motion for summary judgment, I find that the following material facts are not in dispute and that, consequently, the case is appropriate for summary judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976):

1. Plaintiff owns a prcel of land consisting of approximately 49,318 square feet that is situated at 430 Paradise Road in the Town.

2. Said parcel of land is situated in an area that is designated as a "Business B-3 District" under the by-law.

3. Section 6 of Article III of the by-law, which regulates uses in a Business B-3 District, provides in relevant part as follows: [Note 1]

Section 6. Business B-3 District

In the Business B-3 District, no building or land shall be used for any purpose except one or more of the following:

1. All uses permitted in a Residence A-1, Residence A-2, Residence A-3 or Business B-1 District.

2. A clinic, medical building, nursing home, hospital, (other than a veterinary hospital), apartment house, golf driving range, and a use in any of said Districts which requires a special permit from the Board of Appeals, provided a special permit for any use contained in this paragraph is obtained from the Board of Appeals as provided in Article VI, Section 5.

4. In the Residence A-1 District (Article III, Section 1), the Residence A-2 District (Article III, Section 2) and the Residence A-3 District (Article III, Section 3) of the by-law, no land or building in the Town may be used as of right for any business purpose. [Note 2]

5. Section 4 of Article III of the by-law, which governs uses in a Business B-1 District, provides in relevant part as follows:

Section 4. Business B-1 District

In the Business B-1 District no building or land shall be used for any industry or manufacturing purpose, or for any other purpose except one of more of the following:

1. Any use permitted in the Residence A-3.District.

2. Any of the following uses, provided a special permit has been obtained from the Board of Appeals as provided in Article VI, Section 5.

(a) Retail store, personal service establishment clinic, medical building, bowling alleys, hotel, restaurant (except for a drive-in eating place and refreshment stands or other similar uses, as defined in Article II, paragraph 21, and except for an all night restaurant as defined in Article II, paragraph 22), theater, moving picture house, bank, office, studio or funeral home.

(b) Public garage or gasoline filling station (other than a self-service station);

3. Any use accessory to the foregoing, as defined in Article II.

6. Section 5 of Article III of the by-law, which regulates uses in a Business B-2 District, the only other business-zoned district of the by-law, provides in relevant part as follows:

Section 5. Business B-2 District

In the Business B-2 District, no building or land shall be used for any industry or manufacturing purpose, or for any other purpose except one or more of the following:

1. Any use permitted in the Business B-1 District.

2. Lumber, coal or other fuel storage, contractors' yard, storage warehouse or uses similar in character to the foregoing, or sanitary land fill dump operated under the control and supervision of the Board of Health, provided a special permit for any use contained in this paragraph is obtained from the Board of Appeals as provided in Article VI, Section 5.

3. Any use accessory to the foregoing, as defined in Article II.

I begin by ruling that the by-law has the effect of precluding any business use from being made as of right (except for valid nonconforming uses) of any building or land that is situated anywhere in the Town, including all buildings and land situated in all business-zoned districts of the Town. Further, that under the provisions of the by-law all business uses in a business district are allowable only upon the issuance of a discretionary special permit.

The provisions of the by-law with respect to business uses within the Town run afoul of the principles of law enunciated in the case of SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984). The Appeals Court in SCIT held that G.L. c. 40A, § 4, which provides that a zoning ordinance or by-law that divides a municipality into districts must be uniform within the district for each class or kind of structure or use permitted, requires that:

(a) Each land use must have a predictable character and the uses of land must be sorted out into compatible groupings; and

(b) Certain uses must be permitted as of right within each district, without the need for a landowner first to seek permission which depends upon the discretion of local zoning authorities. Id. at 107. The Appeals Court in SCIT stated that:

The uniformity requirement is based upon principles of equal treatment: all land in similar circumstances should be treated alike, so that "if anyone can go ahead with a certain development [in a district], then so can everybody else." [Citation omitted.]

These principles underpin § 4 of c. 40A, and have long constituted a limitation on municipal zoning power. . . .

The Appeals Court in SCIT further held that a zoning ordinance or by-law that purports to make all uses in a zoning district allowable only upon the issuance of a special permit is inconsistent with the provisions of G.L. c. 40A, § 9. The Court stated that:

Section 9 is unambiguous in authorizing special permits only for "specific types of uses", and it is clear that this language was intended to mean exactly what [it] says. See 1972 House Doc. No. 5009, at 31, where it is said that special permits are to be 'granted only for uses specifically authorized by the ordinance where it is appropriate to 'condition' the use or control its density or location' (emphasis original). We see no escape from the conclusion that § 135-604's purported conditioning of all uses in a business district on a special permit exceeds the scope of the delegation fixed by the unambiguous language of § 9. We have reached our decision that § 135-604 cannot stand in light of §§ 4 and 9 of c. 40A having in mind the favorable presumption to which a zoning ordinance or by-law is entitled. (citation omitted)

Id. at 110-11.

While the provisions of the Braintree zoning by-law that were at issue in SCIT purported to make every use (including any nonbusiness use) in a business-zoned district subject to the grant of a special permit, and the provisions of the by-law at issue in this action purport to make only all business uses within a business-zoned district subject to the grant of a special permit, I hold that this does not save the business district provisions of the Town's by-law from being invalid in their current form. Said provisions purport to confer on the Town's special permit granting authority a "roving and virtually unlimited power to discriminate as to uses between landowners similarly situated", and thus they are in direct contravention of § 4 of the Zoning Act. In order to preclude such power to discriminate, in every business-zoned district of a zoning ordinance or by-law there must be at least some certain business use that is allowed as of right. See SCIT, 19 Mass. App. Ct. at 107.

Furthermore, said provisions of the by-law are also in contravention of § 9 of the Zoning Act in that, in purporting to require a special permit for every business use within a business-zoned district, they do not apply only to uses "specifically authorized by the ordinance [or by-law] where it is appropriate to 'condition' the use or control of its density or location. . . ."

See SCIT, 19 Mass. App. Ct. at 110.

The appropriate remedy in a situation where specific provisions of one section of a zoning ordinance or by-law unlawfully purport to require a special permit for all or certain uses, is to strike down only the special permit requirement of that section, rather than to invalidate completely the entire section. See Biotti v. Board of Selectmen of Manchester, 25 Mass. App. Ct. 637 , 640-641 (1988).

Article III of the by-law has been drafted in such a way that § 6 relates back to §§ 1, 2, 3 & 4, incorporating by reference the uses set out in those sections. Generally, plaintiffs in an action such as this only have standing to challenge those provisions which affect the use of their land directly. Because portions of §§ 1, 2, 3 & 4 do affect the plaintiff's land in this case, I must consider all of those sections as they relate to the plaintiff's land.

In light of the foregoing, I grant summary judgment in favor of plaintiff by declaring that:

1. The provisions of Art. III, § 6, of the Zoning By-Law of the Town of Swampscott in effect as of August 1988, which purport to require a special permit for the uses specifically set out therein, as well as those uses incorporated by reference therein which purport to require a special permit, are void. All other provisions in § 6, however, are not affected by this judgment.

2. Plaintiff is entitled to use his parcel of land located in the Business B-3 District for any of the uses that are specifically set out in Art. III, § 6, or those uses incorporated by reference therein which purport to require a special permit, without obtaining a special permit.

Judgment accordingly.