MISC 149363

August 5, 1991

Middlesex, ss.




This is an appeal by the Plaintiff Richard P. Quincy as a General Partner of Silver Leaf Limited Partnership ("Quincy") under G.L. c. 40A, §17, 231A and 240, §14A by which he appeals certain conditions contained in a decision of the Defendant Planning Board of the Town of Tewksbury ("Board") approving a site plan special permit for the construction of a shopping center; a declaratory judgment that Quincy's application for said site plan special permit was constructively granted by failure of the Board to timely file its decision and thirdly a declaratory judgment that the Tewksbury Zoning By-law ("By-law") purporting to require a special permit for general retail businesses and restaurants in a General Business District, where such businesses also appear to be permitted, is invalid under G.L. c. 40A, §4 and that Plaintiff may construct its proposed project as of right.

The Superior Court cases seek to annul completely the decision of the Board inasmuch as Plaintiffs therein allege said decision exceeds the authority of the Board.

The Plaintiff has moved for summary judgment pursuant to Rule 56, Mass. R. Civ. P. This cause came on to be heard on the above motion on May 2, 1991. After considering the pertinent documents, pleadings, affidavits and arguments of counsel, I find that there are sufficient material and undisputed facts to be at least partially dispositive of this case, and that accordingly this case is ripe for partial summary judgment. Community National Bank v. Dawes, 369 Mass. 32 (1976).

I find the following facts to be pertinent and undisputed:

1. Plaintiff Quincy as a General Partner of Silver Leaf Limited Partnership is the owner of a parcel of land on Main Street, State Highway No. 38 in Tewksbury in an area zoned as a general business district.

2. On February 21, 1990 Plaintiff properly filed an application for modification of site plan special permit No. 88-23 which plan had been approved by the Board on February 27, 1989.

3. The Board was advised by its own consultant that:

The changes to the site development plans include slight revisions to the building footprints and loading areas to accommodate future tenant requirements. The adequacy of the overall proposed sight design is not affected by these reasons. . . .

4. On April 9, 1990 the Board opened and closed the public hearing on Quincy's application, although certain correspondence and information was received by the Board from Quincy after such date.

5. On July 9, 1990 the Board voted to approve the application with certain conditions in addition to the conditions of the original (1984) approval.

6. On July 24, 1990 the Board took its final action on this matter by filing its written decision with the Town Clerk.

7. The conditions which Quincy finds to be objectionable are:

a) Q(3) which requires Plaintiff to acquire all necessary permits from the Massachusetts Department of Public Works ("MDPW") for the reconstruction of a portion of Route 38, from Hinckley Road up to and including the intersection of Shawsheen Road, a distance of over 800 feet;

b) R(1) which requires Quincy to design and actively construct certain improvements to Route 38 for a distance not adjacent to Plaintiff's property, subject to the apparent unconstrained discretion of the Board, as preconditions to the issuance of building permits and/or occupancy certificates;

c) X which requires Board approval of all aforesaid highway improvements without stating any standards for each approval; such approval is apparently required in addition to MDPW approval; and

d) Y which requires sidewalk construction over land not owned by Plaintiff.

I Constructive Approval

As to the constructive approval of the site plan special permit, I find that a question of material fact - whether or not Plaintiff complied with certain provisions of G.L. c. 40A, §9 - has been raised in the Superior Court matter and that as to this matter, Quincy's motion for summary judgment must be denied.

II Site Plan Special Permit

The Zoning By-law Section 4.5.D clearly permits a shopping center in the general business district. Section 4.2, however, indicates that certain uses are "Permitted as of right, but all business, institutional, or industrial (uses) are subject to the requirements of Sec. 4.11."

Section 4.11 is titled Site Plan Special Permit and does in fact set out special permit standards and requirements as a prerequisite to site plan approval. It might be argued that the By-law, albeit somewhat awkwardly, is modifying business uses from uses permitted by right to uses permitted by special permit. Such reasoning, however, would leave only residential and agricultural uses, permitted by right in the "General Business" district, and little or no distinction between business and residential districts. Rather than so find, I find that the By-law has established a business district in which certain uses are permitted by right (as recognized in Section 4.2) and also attempts to make such uses subject to a special permit. As recognized in SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1989) uses permitted by right cannot be made subject to discretionary special permit provisions, inasmuch as the concepts of a use as of right and a use dependent on discretion are mutually exclusive. Prudential Ins. Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986). Accordingly I find the shopping center use in the General Business District is permitted as of right, and I find further those portions of Section 4.11 of the By-law which require the discretionary special permit standards to be applied to Plaintiff's proposed shopping center use in the General Business zone to be void. I allow said portions to stand insofar as they are limited to imposing reasonable site plan terms and conditions on the proposal as set forth in Prudential and as further set forth herein. As set forth below, this matter may be remanded to the Board for reconsideration and a decision not inconsistent with this decision.

III Specific Conditions Imposed

The off-site conditions imposed on Plaintiff's site plan exceed the Board's authority. A proper site plan review must be confined to on-site consideration, any traffic related inquiry must be limited to that of access into and out of the site itself and may not include the roadways and intersections beyond the site. In any event the road and sidewalk work required by the conditions can be done only by a governmental decision beyond the control of Quincy. It is well established that it is unreasonable to impose a condition on an applicant, the performance of which lies entirely beyond his power. VHS Realty v. Zoning Board of Appeals of Plymouth, (1991). Accordingly Plaintiff's motion for summary judgment as to Conditions Q (3), R (1), X and Y is allowed and said conditions are annulled.

IV Extent of Review

Inasmuch as this matter may be remanded to the Board for permissible site plan review, I would respectfully suggest to the Board that this review should probably be limited to the changes proposed to the already existing and approved site plan, particularly if the changes are as insignificant as the Board's engineer would appear to suggest. The earlier plan, while apparently still valid, is not before the Court, and I have little guidance as to the extent of such revision. Accordingly I leave such matter for the Board's determination.

In consideration of the foregoing it is therefore

ADJUDGED and ORDERED that material facts exist as to whether or not Plaintiff has received constructive approval of its site plan special permit and as to that issue, Plaintiff's motion is denied; and it is further

ADJUDGED and ORDERED that those portions of Section 4.11 of the Zoning By-law of Tewksbury which require the discretionary special permit standards to be applied to the proposed shopping center which I find to be a specific allowed use, in the General Business District, are void, and as to such issue Plaintiff's motion is allowed; and it is further

ADJUDGED and ORDERED that Conditions Q(3), R(1), X and Y of the site plan approval issued Plaintiff's use beyond the authority of the permit granting authority and are void. Plaintiff's motion as to this issue is allowed; and it is further

ADJUDGED and ORDERED that at Plaintiff's discretion the remaining issues herein may be marked for trial, or Plaintiff may move to dismiss as to the issue of constructive approval. In the event such motion is allowed, this matter is to be remanded to the Planning Board for further action not inconsistent herewith.

Either of which alternative should protect the rights of Plaintiffs in the Superior Court cases.

By the Court


[Note 1] Superior Court Civil Action No. 90-5519 originally named Eric Wodlinger as a defendant as did No. 90-5454, which in addition named Richard Quincy d/b/a and Massachusetts Centers, Inc. since Mr. Wadlinger is obviously the attorney of record for Silver Leaf Limited Partnership and apparently as Quincy, Quincy & Company and Massachusetts Centers are former owners of the site in question, I am, acting on motions of these defendants dated September 11, 1991, dismissing them as defendants. Because of the following decision and judgment these participants as parties would appear to be moot, in any event.