MISC 133027

April 5, 1991

Norfolk, ss.



By complaint filed March 16, 1989, Ralph J. Civitarese as Trustee of R & R Comdrive Realty Trust ("Plaintiff"), pursuant to G.L. c. 185, §l (j 1\2) and G.L. c. 240, §14A, seeks a determination as to whether and to what extent the Zoning By-Law of the Town of Wrentham ("the By-Law") affects a parcel of land owned by Plaintiff ("Locus"). Specifically, Plaintiff seeks a determination that the By-Law, to the extent it restricts the use of Locus to those uses permitted in the R-43 zoning district of the Town of Wentham ("the Town"), is invalid and a further determination that Plaintiff may use Locus as though it were included in the C-1 zoning district of the Town of Wrentham.

The Court took a view of Locus on February 5, 1991.

This case was tried on January 24, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Two witnesses testified and seventeen exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of an appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. Locus contains seven acres and 24,962 square feet of land, more or less, and is shown as "Lot A" on a plan entitled "Commercial Park Subdivision of Land in Wrentham, Mass.," dated October 17, 1972, said plan being filed with the Norfolk County Registry of Deeds as Plan No. 74 of 1973 in Plan Book 235 ("the Plan") (Exhibit No. 1). [Note 1]

2. On November 18, 1971, Ralph J. Civitarese and Richard J. Civitarese ("the Civitareses") purchased Locus and Lots B and C as tenants in common. The Civitareses had previously acquired title to Lots 13-17, 22, 24 and 25.

3. At the time of the above-mentioned purchase, Lots B, C, 13-15, 22, 24 and 25 were located entirely within the Industrial I zoning district under the By-Law. Lots 16 and 17 were located entirely within the adjacent Residential district. Locus was divided into the Industrial and Residential districts (See Exhibit No. 3).

4. By deed dated December 29, 1988, the Civitareses conveyed to themselves as Trustees of R & R Comdrive Realty Trust ("the Trust"), Locus and Lots B, C, 13-17, 22, 24 and 25. On March 26, 1990, Richard J. Civitarese resigned as Trustee of the Trust leaving Ralph J. Civitarese as sole trustee. Lots C, 14-17, 22, 25, have been conveyed to outside parties. Plaintiff presently owns Locus and Lots B, 13, and 24.

5. On February 15, 1978, the Zoning Board of the Town, of Wrentham granted a the Civitareses' request for a Special Permit to use two acres of Locus adjacent to Lot 24 as a contractor's yard (See Exhibit No. 2).

6. On April 15, 1978, the Town of Wrentham revised the By-law ("the 1978 Amendment") changing the Industrial I district to a Commercial Industrial district ("C-1 district") and expanding the Residential district. Lots B, C, 22, 24 and 25 are in the new C­ l district, while Locus is entirely within the new Residential district ("R-43 district") (See Exhibit No. 7).

7. Plaintiff has no legal right of access across either the residential properties abutting Locus to the north, fronting Thurston Street or the residential properties abutting Locus to the west, fronting on Hawes Street. Even if Plaintiff had legal access from Locus to Hawes Street, access would be constrained if not precluded, by a sharp rise in elevation (See Exhibits No. 3 and 7). Neither does Plaintiff have a legal right of access across property to the east of Locus, fronting Washington Street (Route 1), and even if such access were available, physical access would be constrained, if not precluded, as that property contains an extensive area of wetland. At the time the Civitareses purchased Locus there was access to Washington Street through a 67 foot strip of land, but that strip was conveyed by the Civitareses as part of the conveyance of Lot C to an outside party.

8. The only access now available to Locus is across Lot 24 and Lot B from Commercial Drive as shown on the Plan.

The test for determining the validity of an amendment to a zoning by-law is "whether there has been shown any substantial relation between the amendment and the furtherance of any of the general objects of the enabling act." Turnpike Realty Co., Inc. v. Dedham, 362 Mass. 221 , 228 (1972); Caires v. Building Commissioner of Hingham 323 Mass. 589 , 593 (1949) Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545 (1949). The court must look to the "location, size and characteristics of the land, the nature and use of adjoining land and other land in the general vicinity, and all other physical aspects that are involved . . . ." Barney & Carey Co. v. Milton 324 Mass. 440 , 449 (1949). Further, in making the decision, "(e)very presumption is to be afforded in favor of the validity of (the by- law) and if its reasonableness is fairly debatable the judgment of the local authorities will prevail." Anderson v. Wilmington, 347 Mass. 302 , 303 (1964); Schertzer v. Somerville, 345 Mass. 747 , 751 (1963); Caires at 597.

In the present case, the purpose of the 1978 Amendment was to maintain the semi-rural or semi-residential character of the Town, and afford some protection to its established residential neighborhoods from the types of construction, forms of enterprise, and crowding undesirable in that district. The Court has found such purposes valid. Wilbur v. Newton, 302 Mass. 38 (1938); Turnpike at 228; Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964) (finding the promotion of public welfare to be a major purpose of the enabling statute) and I rule that it is a valid purpose in this case. Most of the land in Wrentham is zoned for residential use and Locus is bounded to the west and north by residential property. Accordingly I rule that the residential zoning of Locus is not an unreasonable or arbitrary means of accomplishing the Town's purpose.

Further, Locus is bounded to the east by wetlands and the Town has afforded protection to the those wetlands and associated water resources by limiting the intensity of any adjacent development.

Plaintiff argues that the proximity of Locus to Washington Street and the elevation of Locus in relation to neighboring residentially zoned parcels negate the purpose of the 1978 Amendment and that the Town made no study before submitting its recommendation to the Town meeting. While these are factors to be considered, I find that they do not negate the purpose the Town's zoning scheme.

Plaintiff argues that the Town of Wrentham's interests are outweighed by the alleged suitability of the site for commercial use and the limitations it has for residential use. He claims further that the Town should have considered, when amending the By­Law, the lack of access to Locus as well as the fact that two acres of Locus were subject to a Special Permit for an industrial use. The Court has explained that the validity of a by-law may not be determined "by assessing the comparative benefit to the town and the harm to (the plaintiff's) land resulting from its application." MacNeil v. Avon, 386 Mass. 339 , 343 (1982). Accordingly, I will not consider Plaintiff's arguments along those lines.

However, I rule that Plaintiff is entitled to relief from the By-Law insofar as it restricts access to Locus. It is well established that the use of land for industrial access constitutes an industrial use. Harrison v. Building Inspector of Braintree, 350 Mass. 559 (1966). Similarly, it would appear that the use of land for residential access constitutes a residential use. In this case, Plaintiff's only access to his residentially zoned property is through a commercially zoned district. Where a zoning by-law operates to bar any access whatsoever to land for any lawful use, an aggrieved party is entitled to relief from the by-law. Lapenas v. Zoning Board of Appeals of Brockton, 352 Mass. 530 (1967); Chelmsford v. Byrne, 6 Mass. App. Ct. 848 (1978); Foster Masonry Products v. Acton, Land Court Dept. Misc. No. 117554 (1990). In the present case, although a public or municipal utility facility is an allowed in both R-43 and C-1 districts, seemingly creating a lawful use for Locus, such a use requires a special permit in the R-43 district and therefore does not provide the access of right contemplated in Lapenas and Byrne. See Callan v. Town of Reading, Land Court Dept. Misc. No. 116815 (1986). Accordingly, I find Plaintiff has no access to Locus and rule that he is entitled to relief from the By-Law for the provision of such access.

Finally, the 1978 Amendment had no material effect on access to the portion of Locus that had been previously zoned for residential use and even if I were to find the 1978 Amendment invalid, a portion of Locus would remain in the residential zoning district.

In summary, I rule that the 1978 Amendment is not arbitrary, unreasonable or substantially unrelated to public health, safety or welfare, except insofar as it may interfere with Plaintiff's access to Locus for residential uses, but is a valid use of the Town's authority under G.L. c. 40A as it applies to Locus.

Judgment accordingly.


[Note 1] All Lots referred to hereafter will be those designated on the Plan.