MISC 133238

October 2, 1991

Middlesex, ss.



Raymond J. Ciccolo, as he is the Trustee of Ciccolo Property Trust, the owner of the locus, a portion of a triangular parcel of land in Somerville bounded by Somerville Avenue, Medford Street and land of the Massachusetts Bay Transportation Authority ("MBTA"), and Public Storage, Inc., the buyer named in a purchase and sale agreement bring this action pursuant to the provisions of G.L. c. 240, §14A and c. 231A, §1 to determine the validity and applicability of an amendment to the defendant City of Somerville's zoning ordinance and to compel the Building Inspector to issue a building permit to the plaintiffs in accordance with the decision of the Somerville Board of Appeals dated July 12, 1988. The present proceeding was precipitated by a study in Somerville of the so-called Boynton Yards in which a great deal of the early slaughter houses on the East Coast were situated but which now have been abandoned. The City of Somerville seeks through an urban redevelopment project to rescue the depressed area and to protect the surrounding properties.

The locus was omitted from the first publication by the Planning Board of the proposed change in the zoning ordinance, and therefore a question is presented as to whether the Building Inspector was in error in denying a building permit which had been applied for well before the publication. The zoning ordinance in question here was the second attempt by the City to revise the zoning of the Boynton Yards, the Board of Aldermen not having acted seasonably after the first publication. The second issue concerns the validity of the zoning of the locus as a Business A area if in fact the rezoning affected locus. Finally, the question which would resolve the dispute in the plaintiffs' favor without reaching either of the above two questions concerns the applicability of the provisions of G.L. c. 40A, §6 which preserves the zoning upon the endorsement of a subdivision plan to the effect that approval under the subdivision control law is not required. The parties differ from whether Somerville is subject to G.L. c. 41, §81K et seq., the so-called subdivision control law.

A trial was held at the Land Court on December 7, 1990 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The Court has delayed rendering its written decision at the request of the parties who continued to hope that a settlement might be reached, but this has not materialized. The Court took a view in the presence of counsel on December 20, 1990. The Court also heard arguments on August 23, 1991 as to the applicability of the Subdivision Control Law to Somerville.

There were twenty-one exhibits introduced into evidence which are incorporated herein for the purpose of any appeal. At the trial Charles J. Spaliotis, an attorney, practicing in the land development field and an expert witness, Nicholas Geskos, a commercial real estate broker with Coldwell Banker, testified for the plaintiffs. The defendant called Donald J. Bouchelt, who is the city planner employed by the Office of Housing and Community Development for the City of Somerville and Patrick Reffett, the director for community development in the City of Somerville.

The parties have entered into a stipulation which I have set forth below in full; exhibits referred to therein have not been attached to this Decision. Based thereon and on all the evidence I find and rule as follows:

1. The plaintiff, Raymond J. Ciccolo as Trustee of Ciccolo Property Trust ("Ciccolo") is the owner of the property known and numbered as 200 McGrath Highway, Somerville, Middlesex County, Massachusetts (the "Property").

2. The plaintiff, Public Storage, Inc. ("Public") is a California corporation with a usual place of business in the Commonwealth at 121 Middlesex Turnpike, Burlington, Massachusetts.

3. Public is the proposed purchaser of the Property.

4. The defendant, City of Somerville ("City") is a duly organized and existing municipal corporation.

5. The defendant, Kenneth Brooks, is a duly designated Building Inspector for the City.

6. As of December 16, 1988, the Zoning Ordinance of the City of Somerville ("Ordinance") provided in pertinent part as follows:

Section 3.1.6. Interpretation. In interpreting the provisions of this ordinance relative to an application for a specific certificate or permit, the superintendent shall consider the provisions applicable on the date of application, except that: No Certificate of Occupancy and no permit for a building or structure for a use not previously acted upon shall be issued by the superintendent, if at the time of application for said certificate or permit, there has been published by the Planning Board, as directed in Section 3.6.2, notice of a public hearing to consider an amendment to the ordinance, and if the proposed building or use would be in violation of said proposed amendment; and

Section 2.1 General...the word 'shall' is always mandatory and not merely directory....

7. On December 17 and December 24, 1987, the Planning Board for the City of Somerville ("Planning Board") duly published a notice for a public hearing concerning a proposed amendment to the Zoning Map ("Map") for the Ordinance, which notice is attached hereto and marked "A". Although the notice did not specify "the place where texts and maps ...(might ) be inspected" as required by G.L. c. 40A, §5, the materials on file in the office of the City Clerk did contain a map which included the Property.

8. At all times material hereto, the Property consisted of 64,540 square feet.

9. On February 11, 1988, Public filed an application ("Application") with the Inspectional Services Department of the City of Somerville for the issuance of a building permit to authorize the construction of a self-storage facility (the "Project") on the Property. The Application is attached hereto and marked "B" and was accompanied by a certified plot plan and structural plans.

10. On February 26, 1988, the City, acting by and through its then Senior Building Inspector in the Building Division of the Department of Public Works, denied the Application. A copy of the letter of denial ("Denial") is attached hereto and marked "C".

11. On March 11, 1988, Public appealed the Denial by duly filing an application ("Appeal") with the Board of Appeals for the City of Somerville ("Board"). The Appeal is attached hereto and marked "D".

12. The Appeal was amended on April 28, 1988, a copy of which amendment is attached hereto and marked "E".

13. On April 28 and May 5, 1988, a notice of a proposed amendment to the Ordinance, including a change in the zone for the Property, was duly published, which amendment, if adopted and effective with respect to the Property, would preclude the Project, which notice is attached hereto and marked "F".

14. A hearing was held by the Board on June 15, 1988.

15. On July 11, 1988, the Board voted unanimously to grant a special permit with site plan review, a copy of which decision (the "Decision") is attached hereto and marked "G" and was filed with the City Clerk on July 12, 1988.

15A. On July 28, 1988, the Board of Aldermen voted to adopt the proposed amendments to the Ordinance referred to in item 13, above.

16. On July 29, 1988, the Board issued a document referred to as a clarification of the Decision ("Clarification"), a copy of which is attached hereto and marked "H", which stated that Public was to "proceed at risk pending the outcome of the Board of Aldermen's final vote on the new zoning...." The Clarification was filed with the city Clerk on August 1, 1988.

17. On September 1, 1988, Public, through its counsel, received a notice from the law department for the City of Somerville that the proposed amendment had been adopted and that no further local action would be taken with respect to the Application, a copy of which notice is attached and marked "I".

18. On January 25, 1989, the Board filed with the city Clerk a copy of a further vote of January 18, 1989, stating that, among other things, "(i)t was not the Board's intent to condition the special permit on the pending zoning change" and that "the Clarification be removed from the" Decision. A copy of this further vote is attached hereto and marked "J".

19. Public and Ciccolo have made a series of demands to the City and its several officials to issue a building permit in accordance with the Ordinance and the Decision, which demands have been refused.

20. On February 26, 1988, Ciccolo filed a perimeter survey plan (the "Plan") with a "Form A - Application For Endorsement of Plan Believed Not to Require Approval" with the Planning Board and the City Clerk, a copy of which application is attached hereto and marked "K".

21. On February 29, 1988, the Plan was duly endorsed by the Chairman of the Planning Board and duly recorded at the Middlesex South District Registry of Deeds in Book 18974, Page 46. A copy of the Plan as endorsed and recorded is attached hereto and marked "L".

The stipulation was marked Exhibit No. 15, and the exhibits referred to therein have been introduced into evidence and are appropriately marked.

I also find and rule as follows:

22. The site theoretically is visible from the McGrath Highway which passes the locus but is elevated in this location. It is a part of a triangle which is bounded by Somerville Avenue which is one way at this location and by Medford Street where a difference in grade between the street and the site makes access difficult. The apex of the triangle at the intersection of said streets presently is the site of a plate glass establishment. The other abutter to locus is the Massachusetts Bay Transportation Authority. The locus itself is presently vacant and is in an unattractive state. Across the intersection of Somerville Avenue and Medford Street from the apex of the triangle is a shopping center in which a Bradlee's is situated and in the opposite direction there is another shopping plaza known as "Twin City".

23. On the view the Assembly Mall was visited to demonstrate the feasibility of access from elevated highways, but the difference in size and road patterns made the comparison difficult.

24. The site has been zoned as Industrial B for many years, probably since zoning was adopted in Somerville; this classification would permit its use as a public storage warehouse, a concept and a type of structure that has proliferated throughout eastern Massachusetts in recent years. It also would be possible to use the site for this purpose if it were zoned as Business B to which the plaintiffs would not object. In this litigation, however, it is possible only to invalidate the Business A zoning and leave the previous Industrial B zoning in effect.

25. The general purposes for which Business A is designed are set forth in Section 6.1.6 of the current Somerville Zoning Ordinance in Paragraph A thereof; it provides as follows:

To establish and preserve business areas bordering main thoroughfares that are attractive to a wide range of uses, including retail business and services, housing, government, professional and medical offices and places of amusement. While it is anticipated that most users will arrive by motor vehicle, it is intended that the area should be safe for and conducive to pedestrian traffic.

26. Section 6.1.7 gives the purposes of a Business B zone as follows:

To establish and preserve general commercial and high density residential areas consisting of multi-family developments, shopping centers, commercial strips and automobile related establishments where customers reach individual businesses primarily by automobile.

27. The city planner would have preferred to include the triangular parcel within which the site is located in a Business B zone, but the residential abutters pressed for its inclusion within a Business A zone; their perspective had been shaped by alleged abuses of an automobile dealer in the area.

28. There is situated across the intersection from the locus the abandoned Somerville incinerator. The southerly boundary of the parcel is the land now or formerly of the Boston and Maine Railroad or the MBTA. In the Boynton Yards neighborhood there also is an area zoned as Industrial Park. The other two large players in the neighborhood are the Bradlee's shopping center and the Twin City Plaza, both zoned Business A in contradiction to the purposes of such a district.

29. Access to this site is so poor that it should be used for a purpose which has low traffic impact. The purposes for which Business A is designed as set forth above do not apply to this locus, nor indeed do they apply to the two shopping centers which together with locus form a long Business A zone. The entire area would more closely fit the definition of Business B. Pedestrian access to locus, a criterion for Business A, is perilous, and cars have to follow a tortuous course to reach it.

30. The building inspector, in denying Public's application for a building permit relied on the absence of a special permit for site plan reviewed required for parcels the size of locus. Upon the second application, the building inspector relied on an erroneous interpretation of the ZBA's "clarification" of its earlier grant of a special permit advising the applicant that if they acted on the special permit they did so at their own risk. The building inspector read the clarification as nullifying the special permit should the change in zoning be adopted.

The plaintiffs have attacked the rezoning of the locus on three grounds. It is clear that the initial notice from the Planning Board did not include the triangular parcel within the description and indeed since the requirements of G.L. c. 40A, §5 on timing were not met, the original efforts to rezone the area failed. Accordingly the Building Inspector was in error when he denied the application for a building permit. At the time of the application the first notice of the proposed change which culminated in the adoption of the present zoning ordinance had not been published, and under the language of the Somerville Zoning Ordinance which was changed after the decision in Caputo v. Board of Appeals of Somerville, 330 Mass. 107 (1953), see also Caputo v. Board of Appeals of Somerville, 331 Mass. 547 (1954), the failure of the Building Inspector to act was appealed to the Board of Appeals which allowed the plaintiffs' appeal and also conditionally granted the special permit necessary for a building of the size contemplated by the plaintiffs. The matter should have ended there.

There also is the question as to the appropriateness of the zoning of locus. The description in the ordinance of the uses assigned to a Business A zone do not accord with the geography of the site which is located nearly beneath the elevated portions of McGrath Highway and is far from desirable for any of the uses customarily found in a Business A zone. Access by pedestrians is not feasible, and access by motor vehicle for the casual traveler is dubious due to lack of visibility, the traffic pattern and the difference in grade. The access to it and its visibility make it appropriate for zoning as a "go to" location, not for use which a motorist happens on by chance. The premises seem to have been zoned as they were to meet the complaints of abutters and depict an inappropriate decision. This aspect of the case is governed by Schertzer v. Somerville, 345 Mass. 747 , 751 (1963), Shapiro v. Cambridge, 340 Mass. 652 (1960) and Canteen Corp. v. Pittsfield, 4 Mass. App. Ct. 289 (1976).

While the judiciary gives great deference to the decision by local authorities as to appropriate zoning, this deference is not unlimited. In both Schertzer and Shapiro the action of the municipality appeared to have been influenced by local citizenry for inappropriate motives. The Supreme Judicial Court also has ruled that there are limitations implicit in a change in zoning district boundary lines when districts are changed that are not present when zoning is first adopted. The desire to eliminate an unpopular use is not a sufficient reason for a change in zone. A more recent application of this principal is found in National Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 (1990) which while construing a different statutory scheme reaches a like result on the rezoning there under consideration. The Court must therefore find and rule that the change in the zoning as applied to locus was impermissible.

The plaintiffs are willing to accept the zoning as Business B, but legally it must revert to its prior zoning as Industrial B. Whatever course the parties wish to take thereafter, it is for their determination. However, with the change in zoning annulled as to locus, the Inspectional Services Department should now issue a building permit. The only valid objection raised by that department on the initial application was to the absence of a special permit for site plan review. This having been obtained by the plaintiffs, the obstacle is removed. The two year limitation period on the special permit would have expired but for the statutory provision of G.L. c. 40A, §9 allowing for a stay of the running of the period for good cause. The evidence, particularly the agreed to documents appended to the stipulation which is marked Exhibit No. 15, supports a finding that the Inspectional Services Department impermissibly refused to issue a building permit to the plaintiffs resting on misinterpretations of the law and of actions taken by the ZBA. See Belfer v. Building Commissioner of Boston, 363 Mass. 444 - 445 (1973), and Pasqualino v. Board of Appeals of Wareham, 14 Mass. App. Ct. 989 , 990 - 991 (1982); cf. Smith v. Board of Appeals of Brookline, 366 Mass. 197 , 201 - 202 (1974). Clearly, the circumstances of this case were not the doings of the special permit applicant. Accordingly I find and rule the special permit has not expired and that a building permit should issue.

Finally a question arises as to whether Somerville has adopted the Subdivision Control Law. In my decision denying the motions for summary judgment brought by each party I ruled that it had not. However, the Court has made a further investigation in the records of the Recorder of the Land Court with whom, as well as with the Register of Deeds for Middlesex South District Registry of Deeds, G.L. c. 41, §81EE requires documents relative to acceptance to be filed. It appears that Somerville did indeed accept the law. However, in 1988 the City retreated from this position and informed both the Recorder of this Court and the Register of Deeds that the subdivision control was not in effect in Somerville with the result that any plan might be filed for recording so long as it met the Registry's requirements. The reason for the change in the City's position is unknown, but under G.L. c. 41, §81N the subdivision control law was to be in effect in every city, except Boston, and every town, which prior to the first day of January, 1954 established a planning board as defined in §81L, or which after said date established a planning board under §81A, unless such city or town by vote of a city council or town meeting in the town of establishment of such board shall vote not to accept the provisions of the subdivision control law. This section concludes with this phrase:

The subdivision control law, however, shall not become effective in any city or town in which it was not in effect on the first day of January, 1954, until the planning board of such city or town shall have notified the Register of Deeds and the Recorder of the Land Court that the city or town has accepted the provisions of the subdivision control law and that the planning board has adopted its rules and regulations as provided in section 81Q and shall have furnished the said Register and Recorder the copy of the vote of the city council or town meeting under which the provisions of the subdivision control law were accepted in such city or town, certified by the city or town clerk and a copy of such rules and regulations certified by said clerk.

The latter provision does not apply to Somerville since it appears that the subdivision control law was in effect on the first day of January, 1954. The vote of the Board of Aldermen on June 21, 1951 relative to the establishment of planning board under the provisions of G.L. c. 41, §81A provided in Section 4:

The Planning Board hereby established shall have all of the powers and duties granted to planning boards by General Laws (Ter. Ed.) c. 41, §81C to 81Y inclusive, and acts in amendment thereof and in addition thereto.

General Laws c. 41, §81EE provides for the transmission to the Register and the Recorder by every board having on the first day of January, 1954, powers of subdivision control

a statement stating that in the opinion of such board the subdivision control law is in effect in such city or town, including a copy certified by the clerk of such city or town or the vote of the city council or the town meeting under which the subdivision control law in the opinion of such board went into effect, together with the date thereof, . . . .

The statute thereafter provides for a suspension of the applicaion of the statute until the board complies if it does not do so within the sixty days and concludes with provisions relative to the filing of the rules and regulations.

The Land Court records, while incomplete, suggest that these steps were taken by the Somerville Planning Board, such a statement being part of the Recorder's records, and that for many years the Board took the position that the subdivision control law was in effect in the City. The caveat on suspension of the law seems to be for the protection of the landowner, not the city. The records of the Middlesex South District Registry of Deeds differ somewhat from those of the Land Court, but they are substantially the same. However, they do include a November 10, 1959 letter from the then Chief Engineer of the Land Court addressed to Edward McGrath of the Middlesex South District Registry of Deeds and listing cities and towns not operating under the Subdivision Control Law in Middlesex County; Somerville was one of these. In January of 1988, after the Boynton Yards study, the Planning Department took the position thatSomerville had not adopted the Subdivision Control Law. The General Laws, however, require affirmative steps to disavow the adoption. That has not been done, and until it has, I find and rule the law is in effect in Somerville.

Under the provisions of G.L. c. 40A, §6 the prior zoning continues for a period of three years from the day of the endorsement by the planning board that approval under the subdivision control law is not required. The period is extended by the appeal period under §81P of c. 41. This litigation does not fall within the category of an appeal pursuant to the subdivision control law so the three years from the date of the endorsement of the plan on February 29, 1988 has now expired. However, c.40A, §6 further provides that

any lot shown on a plan endorsed by the planning board [which] is the subject matter of any appeal or litigation, the exemptive provisions of this section shall be extended for a period equal to that from the date of filing of said appeal or the commencement of litigation, whichever is earlier, to the date of the final disposition thereof, provided final adjudication is in favor of the owner of the lot.

It would seem that under applicable principles the period in these circumstances should be extended by the length of this litigation. See Pasqualino, supra, at 990. And also Cape Ann Land Development Corp. v. Gloucester, 371 Mass. 19 , 23 & n.5 (1976). In any event it is clear that under the decision of the ZBA a building permit should issue.

On all the evidence therefore I find and rule as follows. The zoning of locus as a Business A zone is arbitrary and unreasonable, done for an improper reason and cannot be supported, and that locus lies within the former Industrial B zone.

I further find and rule that the building inspector was in error in refusing to issue the building permit to the plaintiffs, and the plaintiffs are entitled therefore under the decision of the ZBA to the issuance of a permit upon the filing with the building inspector of plans in compliance with the state building code.

Finally I find and rule that the subdivision control law was in force in the City of Somerville and that therefore the plaintiffs should have the benefit of the provision of G.L.c.40A, §6, but that since they are entitled to a building permit as of right under the former zoning, the question of whether they may avail themselves of other similar protections under §6 is not reached.

Judgment accordingly.