MISC 138083

October 16, 1991

Norfolk, ss.



This is an action under G.L. c. 185, §l (j 1/2) and G.L. c. 240, §14A, for a determination as to the validity and extent of the Zoning By-Law of the Town of Wrentham as it affects Plaintiff's land off Madison Street in that Town.

A trial was held on April 26, 1991, at which a stenographer was appointed to record and transcribe the testimony. Thirteen exhibits (some with multiple parts) were introduced into evidence, all of which are incorporated in this Decision for purposes of any appeal. The following witnesses testified: William R. Buckley, a registered land surveyor; Richard Frederick Merrikin, a registered professional engineer; Plaintiff; Susan Trull, an ecologist; and John D. Witten, a land use and environmental planner and President of a firm engaged in those areas. I took a view of Locus on May 1, 1991.

On the basis of all the foregoing, I find and rule as follows:

1. Plaintiff ("Plaintiff") resides at 40 Miramichi Street, Plainville, Massachusetts. Plaintiff has been in the construction business since 1947.

2. Defendant Town of Wrentham ("Defendant" or the "Town") is a municipal corporation within the County of Norfolk.

3. Plaintiff owns a parcel of land ("Locus") situated mostly in Wrentham and partly in Plainville, shown as Lot 6 on a plan entitled "PLAN OF LAND in Wrentham/Plainville, MA", dated March 29, 1989, revised June 29, 1989, / August 14, 1989, by Bay Colony Surveying, Inc. and filed with Norfolk Deeds as Plan No. 869 of 1989 in Plan Book 385, Exhibit 1.

4. Plaintiff acquired his interest in Locus by various deeds dating back to 1966. Plaintiff's interest in Locus was held either individually in his own name or by related entities. In 1989, all of Locus was conveyed through a "straw" into Plaintiff's individual name.

5. Plaintiff purchased Locus in various parcels for industrial development, for which he felt it was particularly suited and for which it was zoned at that time. He testified that Locus was not suitable for residential use because of its location, topography and potentially hazardous conditions and that he would not have purchased it for residential use.

6. At the time of Plaintiff's acquisition of Locus in 1966-1968, all of Locus in Wrentham, with the exception of a small parcel in its westerly-most portion, was zoned Industrial I. That westerly-most portion was zoned Agricultural-Residential II. Exhibit 2 is a plan depicting the zoning in the area as of 1962, and the current zoning of the area.

7. On April 15, 1978, in response to the 1975 revision of the Zoning Enabling Act, the Town comprehensively revised its Zoning By-Laws (the "1978 Amendment"), resulting in the current zoning for Locus. One of the changes was to eliminate the prior Industrial I Zoning category town-wide and to establish a new "Commercial-Industrial" or "C-1" Zoning District. The new C-1 Zoning District, in its application to Locus, ran parallel with Washington Street (Route 1) and northerly therefrom, a distance of 500 feet. The remainder of Plaintiff's land was placed in a Residential (R-43) Zoning District (see Exhibit 2). The effect of the rezoning was to convert all of two neighboring parcels (shown as "N. E. Power" and "Lacivita" on Exhibit 2), and the bulk of Locus, from Industrial I zoning to one acre residential zoning.

8. At the time of the 1978 Amendment, Locus was part of a slightly larger parcel owned by Plaintiff and bounded by the Wrentham State Forest, and by Interstate Route 495, a limited access highway. The remainder of Locus was bounded by other industrially zoned land in the Town (the N. E. Power and Lacivita parcels). The only access for Locus was from Madison Street. The situation remains the same today except that Plaintiff has subdivided off two parcels having frontage on Madison street (shown on Exhibit 1), leaving Locus, shown as Lot 6 on Exhibit 1.

9. Exhibit 8 is the Wrentham Planning Board's report on the 1978 Amendment. The report, a one-page document, recites a year-long effort by the Planning Board to comprehensively revise and update the By-Law, followed by public hearings in March and April 1978 and passage of the 1978 Amendment in April, 1978. The report does not mention map amendments as such but does state, in Part:

The revised zoning proposal which has now been submitted by the Planning Board for town meeting approval is intended to maintain the semi-rural and residential character of our town. At the same time, business, commercial, and light industrial uses are permitted in those areas which have been historically set aside for these purposes.

Plaintiff asserts that he did not become aware of the 1978 Amendment until he started to subdivide his property some time thereafter.

10. Under the pre-1978 zoning covering the bulk of Locus, the Industrial I zoning, most uses were prohibited, or, in a few cases, allowed by special permit. The more important uses were as follows: Banks, offices, general industrial uses, warehouses and transportation terminals were allowed by special permit; light manufacturing uses, farms and certain institutional uses were allowed as of right. Under the post-1978 zoning, the current zoning, the bulk of Locus is in an R-43 district, a single family residential District with an acre minimum lot size. In an R-43 District single family residences are permitted as of right, as are farms and orchards and certain other incidental uses. Certain limited retail and office activities are permitted by special permit. All other uses are prohibited. In the current C-1, Commercial Industrial District, construction businesses, heavy vehicle storage, fuel businesses and public or municipal utility facilities are permitted subject to site plan approval. Research laboratories, light manufacturing and processing facilities, and certain warehouse and storage facilities are permitted by special permit and subject to site plan review. All other uses are prohibited.

11. The topography of Locus has been depicted on a topographical survey prepared by William R. Buckley, dated April 23, 1991, Exhibit 10. The elevation of Locus varies, running from a high of about 290 feet to a low of about 197 feet. Locus is in part quite hilly and contains a great number of crevasses and ridges, as well as massive outcrops of ledge. There are an area of wetlands and a small shallow pond located within Locus.

12. Northeast of the Locus, across Route 1, there is a Massachusetts D.P.W. highway garage used for storage of salt and work materials. Easterly of that garage, that is, further away from Locus, is an asphalt paving plant with stock piles of asphalt and a crushing plant. Continuing further away from Locus is the Laidlaw Regional Land Fill. These areas are visible from Locus. Continuing northerly along Route 1, across it from Locus, there is a contractor's garage at the intersection of Madison Street and Route 1 and another Massachusetts D.P.W. facility. Also within one mile of Locus along Route 1 are various commercial-industrial operations, including a trucking operation, known as Mike's Truck Stop, with an extensive open area for the parking of interstate tractor-trailer trucks. An auto salvage or junk yard is also nearby. In the southeast quadrant of Route 495, diagonally across from Locus, but at a considerable distance, is a large crushing and gravel removal operation. On the other hand, Madison Street to the northwest of Washington Street, i.e., on the Locus side of Washington Street, is residential. There is a house across Madison Street from Locus' access road and two others immediately thereafter as one moves away (northwest) from Locus. Further northwest are a number of newer, substantial, homes directly on, or on roads leading off, Madison Street.

13. As presently constituted, Locus has frontage of 118 feet on Madison Street, with access over a strip of land leading in from Madison Street. That is the sole access to Locus. Locus contains 48.44 acres in all, consisting of:

a) 6.36 acres, in the CA Zoning District of the Town of Plainville (Plainville Locus);

b) 3.61 acres, in the C-1 Zoning District of the Town (Wrentham Commercial Locus); and

c) 38.47 acres in the R-43 Zoning District of the Town (Wrentham Residential Locus).

14. Plaintiff testified that he cannot reach the larger part of his Plainville Locus from his Wrentham Commercial Locus because a 60 foot layout is required for a commercial road in the Town of Plainville, and the Plainville Locus is only 42.39' wide at one point. The Plainville CA zoning allows, as the more important uses, retail business, certain wholesaling, indoor restaurants, parking, business offices and commercial recreation, all with site plan approval; filling stations, printing shops, industrial uses, outdoor storage, radio transmission, public utilities, private schools and mobile homes are allowed by special permit and in some cases also subject to site plan review.

15. Plaintiff desires to develop his Wrentham Residential Locus as though it were all included in the C-1 Zoning District. He also desires to develop his Plainville Locus in accordance with the uses available for it under the provisions of the Plainville Zoning By-Laws.

16. The Rules and Regulations of the Planning Board of the Town limit a dead-end street to 1500 feet. Of such a roadway leading in from Madison Street about 700 feet would be in the C-1 District.

17. William R. Buckley, a registered land surveyor, testified that, in his opinion, the Wrentham Residential Locus, if developed for residential purposes, would be limited to four building lots. In addition to the 1,500' maximum length of the road, the limitation to four lots would be caused by the type of terrain, topography and soil conditions. He testified that in his opinion Locus was not suitable or desirable for residential development, but could be developed for commercial, industrial and perhaps recreational use.

18. Richard Merrikin, a registered engineer, testified that Plaintiff could utilize most of Locus, except for the portions that are wetlands, if allowed to use the Wrentham Residential Locus for commercial development. If, however, he was forced to develop the land as residential, Plaintiff would be limited to developing about four lots, only about 20% of the residential area. Mr. Merrikin also testified that there were a number of problems inherent in trying to develop Locus for residential purposes. He stated that the soil conditions(particularly the limited availability of sites for septic systms) and topography would severely limit the number of house locations. He further testified that the limitation of 1500 feet for a dead-end street would restrict Plaintiff to developing only the front portion of Locus. Mr. Merrikin concurred with Mr. Buckley that the rather obnoxious uses of land in the surrounding area (i.e., the large regional landfill and the asphalt plant) produce odors and noise at Locus.

19. Mr. Witten testified that up to 20 residential lots might be obtainable from Locus, but his testimony was admittedly without field investigation, particularly as to sewage disposal. Plaintiff's witness, Mr. Merrikin, as an engineer, testified that the rocky soil would probably limit residential construction to four or five houses but his testimony was without the benefit of test pits or even hand borings. Testimony was inconclusive on whether the Town's Planning Board could or would waive the 1,500 foot street limitation (thus allowing more residential lots). I conclude that industrial use of the R-43 land would allow more intensive, and profitable, use of that land, but that a substantial amount of residential development would be possible. The extent of the disparity between the two uses is conjectural, dependant, among other things, on more field investigation and actions of regulatory bodies.

20. The law governing this action is summarized in MacNeil v.Avon, 386 Mass. 339 (1982) at pp. 340-344:

A zoning by-law, although valid generally, may be unconstitutional as applied to a particular parcel of land when due to peculiarities of the parcel, application of the by-law is unnecessary to accomplish the public purpose for which the by-law was created. . . The plaintiff has the burden on demonstrating unconstitutionality. In order to do so she must show that its terms are "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." . . . "Every presumption is to be afforded in favor of the validity of . . . [a by-law] and if its reasonableness if fairly debatable the judgment of the local authorities who gave it is being will prevail." . . .

In the alternative, a landowner may prove a zoning by-law unconstitutional by demonstrating that it results in a taking of his land without compensation, and is not merely a regulation of the use of his land as a legitimate exercise of the police power. The regulation constitutes a taking only if it "deprives the [plaintiff's] land of all practical value to [her] or to anyone acquiring it, leaving them only with the burden of paying taxes on it." . . .

The plaintiff's failure to show a lack of substantial relation between the by-law as applied and the public interest does not dispose of the matter. Even though the by-law is substantially related to the public interest, if it deprives the plaintiff of so much of the practical use of her property as to constitute a taking without compensation, it cannot stand. . . . The line between regulation as a proper exercise of the police power and confiscation is far from precise. . . . The by-law is not unconstitutional as applied because it prevents the land from being put to its most profitable use, . . . or because the value of the land is substantially diminished. . . .

The plaintiff would have us determine the validity of the by-law by assessing the comparative benefit to the town and the harm to her land resulting from its application. We decline to adopt a balancing approach. . . . Our rule is that a by-law requiring minimum frontage is valid as applied unless it is shown that, as applied, it has no substantial relation to the public health, safety, or general welfare, or results in such a deprivation of the practical uses of the property to which it is applied as to constitute a taking without compensation. Whether the by-law results in a taking without compensation does not depend upon the quantum of benefit to the public interest. (all citations omitted)

21. The 1978 Amendment was recently upheld in this court, Civitarese v. Wrentham, Miscellaneous Case No. 133027, Cauchon J., and I adopt the reasoning of that action insofar as it relates to the general purposes of the 1978 Amendment.

22. As far as the 1978 Amendment relates to Locus in particular, I note that Locus is abutted both by C-1 industrially zoned land and R-43 residentially zoned land. The action of the Town in trimming down Plaintiff's industrial zone by the 1978 Amendment serves to reinforce the R-43 District along Madison Street and supports the open space uses of the Wrentham State Forest. It also serves to reduce the flow of commercial traffic on Madison Street. The 1978 Amendment leaves Locus as a somewhat peculiar pocket between the State Forest and the I 495 on-Ramp. Further, access to residences in Locus will have to pass through the commercial portion of Locus. Those factors may well tend to reduce the value of residences somewhat, but such a reduction does not require invalidating the 1978 Amendment. Parenthetically, I did not notice odor or undue noise at Locus, as suggested by Plaintiff and his witnesses.

23. The Town would have been amply justified in leaving all of Locus Industrial, but the facts did not require it to do so.

24. Plaintiff's constitutional claim fails, because a substantial residential use may be made of Locus. That it will not be as profitable as industrial use, or that it will not be as profitable as residential use absent some of the peculiarities of Locus, does not give rise to a taking, see MacNeil quoted above. Also, because of his earlier subdividing, Plaintiff paints the blackest picture; from his overall ownership at the time of the 1978 Amendment, Plaintiff has already carved off two industrial lots fronting on Madison Street.

25. Plaintiff does have a valid complaint with respect to access. Access to the R-43 portion of Locus may be obtained only through the C-1 portion of Locus and, here again, I adopt the finding of the Civitarese case, which had the same fact pattern, and find that because of the zoning constraints of the C-1 land through which the access road passes, Plaintiff has no legal access to Locus and rule that he is entitled to relief on that score.

26. As to Plaintiff's access to his Plainville land, there was conflicting testimony as to the prohibitory effect of provisions of the Plainville Subdivision Rules and Regulations. I need not resolve that because the reasoning of the immediately preceding paragraph applies to Plaintiff's Plainville land as well; that is, I rule that Plaintiff is entitled to relief from the 1978 Amendment insofar as it restricts access to Plaintiff's Plainville land for the purposes allowed under the Plainville zoning.

Judgement accordingly.