The above-captioned cases involve the Northwood at Sudbury Condominium (Northwood) and, more precisely, what age restrictions it must maintain and what facilities and services it must provide to be a Residential Care Facility under the Sudbury zoning bylaw and thus be an allowable use in its zoning district (the Research District). They also present the question of whether, and to what extent, the specifics of these issues are properly before the court at this time.
The Sudbury town bylaw defines a Residential Care Facility as one which provides assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings. Bylaw §7000 (Definitions). With few exceptions, none applicable here, all other residential uses are prohibited in this district. Site plan approval from the Board of Selectmen is needed before a Residential Care Facility may be built, and the Selectmen have authority to set conditions in connection with that approval to ensure that the facility is, and remains, zoning compliant. See Bylaw §6300; Jt. Pre-Trial Statement, Agreed Fact #10 (Jan. 31, 2013).
When Northwood received site plan approval on November 14, 1997, [Note 1] that approval was conditioned on 100% occupancy by persons 55 and older, [Note 2] the construction and maintenance of numerous specified on-site facilities, and the continuing provision of numerous specified residential care services. No appeal was taken from that decision, and plaintiffs Sidney and Rita Bourne purchased their unit in reliance on the conditions it imposed. Years later, after the projects development rights changed hands, [Note 3] the new developer (Castagna Construction Corp.) and the condominium trustees petitioned the Selectmen to modify those conditions in two respects: first, by eliminating the requirement that all units be occupied by persons 55 or older, dropping it to 80% so that 20% of the units could be sold without any age restriction whatsoever, and second, by eliminating the mandatory on-site facility and care requirements in their entirety and allowing the condominiums board of trustees full discretion to determine what facilities and care would be provided. [Note 4] The Board of Selectmen approved the reduction of over 55 occupants to 80% indeed, the board went further by finding that the 80% would be satisfied if even one of the residents in those units was over 55 and approved the elimination of the mandatory facilities and care requirements, allowing the trustees to choose what facilities and services would be provided so long as they satisfied the bylaw definition. No guidance was given as to what that definition required, except for the suggestion that: (1) mere coordination of services might suffice (without explaining how such coordination would take place, or requiring any aspect of that coordination, or any of the services themselves, to be on-site), and (2) the non-exclusive designation of one room in the entire complex as available for visiting nurses, therapists and other medical personnel to examine and consult with unit owners, might be the only on-site space necessary for the development to qualify as a Residential Care Facility. [Note 5]
The Bournes and other residents appealed that decision to the Sudbury Zoning Board of Appeals. The ZBA affirmed the Selectmen [Note 6] and the Bournes then took a G.L. c. 40A, §17 appeal from that affirmance to this court (Case No. 10 MISC. 434334 (KCL)). I affirm my previous ruling that Bylaw §6390A validly authorized an immediate appeal from the ZBAs decision to this court rather than waiting for board review of a building inspectors ruling either issuing or denying a building permit or allowing or denying a zoning enforcement request. See Mem. & Order on Defendant Northwood at Sudbury Condominium Trusts Motion to Dismiss (Apr. 12, 2013), citing Wildstar Farm LLC v. Planning Bd. of Westwood, 2012 WL 468226 (Mass. App. Ct. 2012) (Rule 1:28 disposition, unpublished). [Note 7]
Northwood changed developers once again and, on October 18, 2011, the new developer (defendant First Colony Northwood LLC) applied for further modifications to the site plan, this time to make minor alterations to elevations, change interior floor plans, re-locate two new duplexes, and implement certain stormwater control measures. These modifications were denied by the building inspector and then, on January 5, 2012, denied by the Selectmen [Note 8] on the ground that the elimination of the requirement for 100% over-55 occupation made Northwood non- compliant with zoning. [Note 9] No appeal from the Selectmens decision was taken. Instead, on February 28, 2012, the developer filed a building permit application based on the modifications the Selectmen had rejected. The building inspector denied the building permit, [Note 10] an appeal was taken from that denial to the ZBA, and the ZBA directed that the building permit issue, ruling that the Selectmen had exceeded their authority in their January 5 denial. The Bournes appealed the ZBAs decision to this court pursuant to G.L. c. 40A, §17, arguing that the ZBAs reversal should be vacated due to the developers failure to take an appeal from the Selectmens decision within the 30 days prescribed by G.L. c. 40A, §15, i.e. that, under Bylaw §6390, the developer was required to appeal the Selectmens decision rather than waiting for a building permit rejection (Case No. 12 MISC. 465978 (KCL)). In the alternative, the Bournes contend that the ZBAs decision approving the modifications should be vacated on the merits.
The cases were tried together before me, jury-waived. The plaintiffs presented three witnesses: plaintiff Sidney Bourne, former Sudbury building inspector James Kelly, [Note 11] and Christopher Wise, a developer of independent living facilities in Massachusetts. Neither the ZBA, the condominium trustees, nor the developer (First Colony) offered testimony from anyone else, fact or expert.
For the reasons set forth below, based on the testimony and exhibits admitted into evidence and my assessment of the credibility, weight, and inferences to be drawn from that evidence, I VACATE and REMAND the ZBAs decisions in both cases, retaining jurisdiction of the cases for purposes of post-remand review. In Case No. 10 MISC. 434334 (KCL), it was error for the ZBA to allow the over-55 reduction from 100% to 80% and to issue a ruling without baseline requirements on the services and on-site facilities necessary to provide assisted and/or independent living arrangements within the meaning of the bylaw. The case is thus remanded to require 100% over-55 occupancy (with the exception of spouses) and to set forth baseline on-site facility and care requirements. As explained below, the suggestions contained in the vacated decisions do not satisfy the bylaw. In Case No. 12 MISC. 465978 (KCL), the case is remanded for reconsideration in light of the services and on-site facilities directed by the new board decision in Case No. 10 MISC. 434334, which may or may not affect the particulars of the modified plans the ZBA decision approved.
These are the facts as I find them after trial.
The Northwood site is located at 142 North Road in the towns Research District. All residential uses are prohibited in that district with only the following exceptions: residential care facilities, nursing or convalescent homes, assisted care facilities, senior residential communities (by special permit), and incentive senior developments (by special permit). See Zoning Bylaw §2230, Appendix A (Table of Principal Use Regulations). The bylaw defines a residential care facility as one which provides assisted and/or independent living to persons 55 years or older in one or more buildings. Bylaw §7000 (Definitions). As previously noted, the bylaw requires site plan approval from the Board of Selectmen before a residential care facility may be built, and the Selectmen have authority to set conditions in connection with that approval to ensure that the facility is, and remains, zoning compliant.
In 1997, the Conant-Welch Group applied to the Selectmen for site plan approval to construct Northwood as a residential care facility. [Note 12] Northwood was the first and, to this day, the only such application no other residential care facility has ever been proposed or developed and it led to lengthy discussions at multiple hearings focused on the twin issues of (1) what the bylaw required for a development to be a residential care facility, and (2) what measures would be required to ensure it remained so.
The bylaws language [t]he provision of assisted living and/or independent living arrangements has three constituent requirements, each of which must be met for a development to qualify: (1) the provision of assisted living and/or independent living arrangements, (2) to persons 55 or older, (3) in one or more buildings. (emphasis added). See Shirley Wayside Limited Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012) (bylaw to be enforced according to its plain wording unless a literal construction would yield an absurd or unworkable result[,] giv[ing] effect to all its provisions so that no part will be inoperative or superfluous.) (internal citations omitted). During the 1997 hearings, the Selectmen addressed each of these requirements in detail.
They began with the age restriction. As the bylaw says, the occupants of a residential care facility must be 55 or older. At the hearings, counsel for the Conant-Welch Group stated that the age restriction would be part of the condominiums Master Deed and it will always be there as a constant reminder to those who will be purchasing the property. 1997 Site Plan Decision at 4 (Nov. 14, 1997). As he noted, [t]ypically, in developments such as this, people are very protective and want the complex to maintain its character as an age 55-and older development. Id. The Selectmen were assured that this is only one source of protection for a 55-and-over development. Id. at 5. Other sources of protection, he stated, included the bylaw itself where if someone were occupying in violation of the zoning restriction, the Town would have recourse under its zoning law to prohibit such occupancy. Id.
Discussion then turned to the services required and on-site facilities necessary for the provision of assisted living and/or independent living arrangements...in one or more buildings. The developers representative said that Northwood was being designed, at least initially, for well seniors the active and healthy group which doesnt require a lot of services immediately. 1997 Site Plan Decision at 3 (emphasis added). However, he stated, it [was] fully anticipated that over time these residents may require such services and these, he assured the board, will be in place when they are needed. Id. Moreover, he continued, [t]his facility may also well attract seniors who do in fact have some on-going health-service requirements, which will also be available as needed. Id. (emphasis added).
Selectwoman Clark [Note 13] asked whether the development fell within the reach of G.L. c. 19D and was thus required to comply with its regulations governing assisted living. See 1997 Site Plan Decision at 8. When the developer said no Northwood would not be an assisted living residence subject to state-mandated and supervised minimum standards, but rather one providing independent living arrangements outside state control, thus leaving the town as its sole supervising authority [Note 14] Ms. Clark and her fellow Selectmen pressed for specific commitments (1) to pin down what those independent living arrangements would be, (2) to evaluate whether they were sufficient to meet the bylaw requirements, and (3) to ensure they would remain in place in the future, subject to ready, verifiable, monitoring and enforcement. Ms. Clark was especially concerned that there be dedicated common areas, particularly a common dining area where daily meals are taken on a regular basis, thus providing socialization, rather than the isolation fostered by meals on wheels. Id. The other two Selectmen Chairman Blacker and Mr. Drobinski were also concerned about the developers approach, stating that the mere presence of a listing of services in the lobby did not meet the requirements to make this a residential care facility. Id. at 9. The Selectmen then continued the hearing to a later date to get further information from the developer in response to these issues.
When the Selectmen reconvened the hearing in October 1997, they again returned to a discussion of what constitutes a residential care facility within the meaning of the bylaw. In response to the questions raised by the Selectmen at the September session, the developer submitted a letter stating that the facility would include exercise rooms, a swimming pool, a green house and gardening, a common kitchen and dining area, a library and lounge, a convenience store, meeting and craft rooms, administrative offices, and a nurses and wellness clinic. 1997 Site Plan Decision at 9. The developer also stated that there would be a contract with an outside company (Parmenter Health Services) to provide health services on an as needed basis, as well as an emergency response system, housekeeping services and transportation services. Id. at 9-10. Should more intensive care be needed, the developer continued, Northwood would have a preferred provider arrangement with New Horizons in Marlborough for assisted living and Alzheimers care, and with Wingate in Sudbury for skilled nursing care. Id. at 10.
These commitments did not fully satisfy the Selectmen on what the bylaw required. Selectwoman Clark was concerned that there was no one person, such as a manager or director, to look to for responsibility. Id. When the developer responded that there would initially be a management component for that task, with that function transferred eventually to the condominium association, Selectwoman Clark cautioned that it would be difficult to enforce the care component if it [was] left entirely up to the association of owners. Id. When questioned about whether care services would include the provision of meals, the developer told the Selectmen that the plan is to leave the matter of meal service to the discretion of the residents [but] if residents requested meal service their request would be honored even if only one resident chose to have meal service, which would be on a catered basis. Id.
In addition to discussing the characteristics of a residential care facility, the Selectmen also highlighted the need to assure that the services required would not be rolled back in the future. Selectmen Drobinski was concerned with the facility revoking its care provisions in the future and asked Mr. Conant [the developer] to what extent those services could be required in perpetuity. 1997 Site Plan Decision at 13. Mr. Conant responded by stating that if the condominium association ever voted to rescind its care services, such a vote would violate the restrictions in the Master Deed and the zoning bylaw, and the Town could void occupancy of the facility. Id. Mr. Drobinski was disturbed by this response and needed to be comfortable that the care services would be locked-in. Id.
A final hearing took place on November 10, 1997, after which the 1997 Site Plan Decision was issued. [Note 15] No appeal was taken from that decision, nor was any argument raised that it went beyond the requirements of the bylaw. In relevant part, the conditions imposed are as follows:
Condition 22A: The following language shall be inserted in the Condominium Master Deed and the First Unit Deed:
Limitation of Residency. Northwood at Sudbury is a housing community limited to occupancy by seniors fifty-five (55) years of age and older (a Qualified Person), their spouses (including the surviving spouse of a deceased Qualified Person), and a relative by blood or marriage of a Qualified Person or of such spouse, provided that such relative must be fifty-five (55) years of age or older (a Qualified Relative). A Unit Owner shall not occupy or use his/her Unit or permit the same or any part thereof to be occupied or used for any purpose other than as a private dwelling for Qualified Persons, for the spouse of a Qualified Person, or for a Qualified Relative, it being understood and agreed that Northwood at Sudbury is to be used solely for senior housing. In no event shall anyone under the age of fifty-five (55) years of age (other than the spouse of a Qualified Person) occupy a Unit. [Remaining text omitted]
Condition 22B. The following language shall be inserted in the Condominium Master Deed:
Residential Care Facility. Northwood at Sudbury is a residential care facility and shall provide a continuum of home health services and residential care to any Qualified Resident to enable such a resident to remain in his or her Unit for as long as possible without having to move to another facility in order to obtain a required level of care.
A continuum of residential care services will be provided by contract with recognized care providers, which will be designated as preferred providers, and which, by contract commitment, will be required to provide on an as-needed and as-requested basis, to Qualified Residents:
A) home health services for independent Qualified Residents,
B) skilled services for Qualified Residents requiring temporary respite care, and
C) specialized on-going services to the more medically fragile Qualified Residents.
D) provide for in-house Health Care Coordinator
To this end, Northwood at Sudbury shall at all times provide to Qualified Residents the following:
A. As part of the Common Area and Maintenance Fees of the Condominium:
1) Each Unit in Northwood at Sudbury a) shall be equipped for installation of grab bars which shall be installed (and removed) on an as-needed and as-requested basis for a Qualified Resident and b) shall have doorway dimensions large enough to accommodate wheelchairs and walkers;
2) An activities building which will contain the following:
Exercise and Fitness Room
Greenhouse and Garden Area
Kitchen and Dining Areas
Library and Lounge
Meeting and Craft Rooms
Nurses Offices and Wellness Clinic
3) An Emergency Response System installed and operating in each Unit in the Condominium together with a 24 hour a day, 7 days a week monitoring of the Emergency Response System;
4) Local transportation of Qualified Residents and their Guests for shopping, for doctors appointments, and for attendance at social, charitable, and religious gatherings; and
5) Weekly housekeeping services.
B. As an addition to and not included in the Common Area Maintenance Fees of the Condominium:
1) An arrangement with a preferred, independent living, health-care provider (initially expected to be Parmenter Health Services, Inc.) having a contract commitment to staff delivery, on site and on an as-needed and as-requested basis, to Qualified Residents, of a) independent living services (such as, but not limited to, fitness programs, wellness clinics, and homemaker services), b) assisted living services (such as, but not limited to, personal care attendants, companion service, and meal preparation), and c) skilled services (such as, but not limited to, nursing, physical, therapy, and home health aid services), all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.
2) An arrangement with a preferred, assisted living, health-care provider (initially expected to be New Horizons at Madonna Hall, Marlborough), having a contract commitment to accept, on an as-needed and as-requested basis, Qualified Residents for off site assisted living services and Alzheimers care, and through such providers preferred provider (initially expected to be Wingate at Sudbury) or by separate contract with another provider, a contract commitment to accept, on an as-needed and as- requested basis, Qualified Residents for off site skilled nursing services, all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.
Amendment. The provisions of this section shall not be amended or revoked unless any amendment or renovation has been approved in a writing executed by the majority of the Board of Selectmen of the Town of Sudbury [or,] without any such approval by the Town of Sudbury, these provisions may be amended by the Unit Owners, as otherwise provided herein, to mandate that Northwood at Sudbury provide additional facilities, services or arrangements to increase the number of services and facilities provided as a residential care facility or to arrange to have such existing or expanded services performed or provided for directly by the Condominium rather than by contract with preferred providers.
1997 Site Plan Decision at 18-19 (emphasis added).
As previously noted, no appeal was taken from this decision and these provisions were inserted into Northwoods Master Deed at Section 6(B)1-3.
During the construction of the first residential building, the Conant-Welch Group went into bankruptcy. Northwood Properties LLC then acquired the development rights for phasing- in the remaining units. The Bournes purchased their unit from Northwood Properties in 2003.
When the Bournes moved into their unit, Northwood was still a work in progress. Only two of the five planned residential buildings had been finished. Both of these buildings, as was planned for all five, were four story towers with twelve residential units apiece and underground parking. The central activities building (the clubhouse) had also been built, [Note 16] with a gazebo at one end, an enclosed, heated swimming pool with lockers at the other, a lounge area with fireplace and television, an exercise room, an arts and crafts room, game tables, a library, a fully- equipped kitchen, and two unoccupied offices, one of them intended for the on-site administrator, and the other for visiting nurses, therapists, and their associated medical equipment. That, however, was it. There was no convenience store, and none of the skilled services listed in the site plan conditions and incorporated into the Master Deed were in place. There was no on-site staff, no meal service, no coordination of medical appointments or visiting nurses, no transportation service for such appointments, no housekeeping service, no wellness clinic, no physical therapy, and no preferred provider contracts with third-parties for assisted living, alzheimers, or nursing home care. The Bournes reasonably expected that these would all be added as Northwood increased its residential capacity from the then-existing 24 units to the 66 intended, and were not told otherwise. None, however, has ever been provided.
Northwood Properties ran into its own financial difficulties [Note 17] and also went into bankruptcy. An auction was held for its assets, including the development rights for the remaining units. Castagna Construction was the successful bidder. The site plan conditions were on record, and Castagna thus acquired the development rights with full knowledge they were subject to those conditions.
Instead of proceeding, Castagna sought to have the mandatory conditions eliminated. It began by contacting the condominium trustees to enlist their help in persuading the unit owners to vote for an amendment to the Master Deed a necessary first step. The advantage to Castagna from the removal of the conditions is obvious a wider age-range means more potential customers, and the elimination of facilities and services eliminates their cost. Less obvious is any advantage for a senior-aged resident (and the disadvantages are many, see discussion below), except for this: no one wants to live in a perpetually unfinished project, and Castagna argued that, if the conditions remained in place, the development would stay unfinished. [Note 18], [Note 19] Castagnas talks with the trustees took place without many residents knowledge, and the residents were given only a weeks notice before the January 20, 2010 vote on the Master Deed amendments. [Note 20] There were two separate ballots. The first, entitled Removal of Mandato[r]y Requirements Residential Care Facility, proposed todelet[e] all mandatory care and service requirements for Residential Care Facility, permitting Northwood at Sudbury Condominium Trust, through its Board of Trustees, to provide one or more such care and service needs on a discretionary basis, as the Board of Trustees deems appropriate from time to time in accordance with the overall management responsibility of the Condominium. The second, entitled Modification of Age-Restriction, proposed to remove the requirement that all units be occupied by at least one person age fifty-five or older, and replace it with an 80% requirement. [Note 21] A sufficient number of unit owners voted to approve both amendments. [Note 22]
Following those votes, Castagna petitioned the Board of Selectmen for identical modifications to the Northwood site plan. In addition, Castagna requested modifications that reduced the total number of units to be built from 66 to 43, and proposed that those remaining be constructed in a townhouse style rather than the towers previously approved. Castagna also proposed to remove the existing indoor swimming pool and gazebo to provide space for yet another townhouse, containing four units. See Letter from Attorney Gary M. Markoff to William J. Keller, Chairman of the Board of Selectmen (Feb. 12, 2010). [Note 23]
Against the advice of the town building inspector, [Note 24] the Selectmen approved the petition and eliminated conditions 22A and 22B as they existed in the 1997 site plan decision, replacing them with the following:
Condition 22A is hereby amended by striking said section in its entirety and replacing said section with the following: In order to comply with the term Residential Care Facility, as currently defined in the Zoning Bylaw, all units at Northwood at Sudbury Condominium are intended and operated solely for occupancy by persons fifty-five (55) years of age or older, in accordance with the Federal Fair Housing Act 42 USC Section 3601 which provides that at least eighty percent (80%) of the occupied units must be occupied by at least one (1) person fifty-five (55) years of age or older (Qualified Person). [Remaining text omitted]
Condition 22B is hereby amended by striking said section in its entirety and replacing said section with the following: Northwood at Sudbury Condominium Trust shall provide care services (a.k.a. care arrangements) to unit owners in order to comply with the term, Residential Care Facility, as currently defined in the Zoning Bylaw. Such care services and/or arrangements may include but shall not be limited to, coordination of visiting nurse services, physical therapy services, transportation services, food services, recreational services, and educational services. Care services and/or arrangements shall be determined by the Condominium Trust in accordance with this permit condition and the terms of the current Zoning Bylaw, as the Condominium Trust deems appropriate and advisable. [Remaining text omitted]
2010 Site Plan Modification Decision, Sudbury Board of Selectmen at 3 (Mar. 25, 2010). The same language appears in the Amended Master Deed, replacing the original language concerning the age restriction and care services in Section 6(B)1-4.
The Bournes appealed the modified site plan decision to the Zoning Board on May 30, 2010, and a public hearing was held on June 7, 2010. Castagna argued that the modifications were financially necessary. Based on a finding that the initial conditions were now onerous or outdated, and that the language in order to comply with the term, Residential Care Facility, as currently defined in the Zoning Bylaw was sufficient to ensure that the care needs of the residents would be met within the context of the Zoning Bylaw and the original Site Plan, the ZBA upheld the site plan modification. See Notice of Decision, Zoning Bd. of Appeals (Jul. 2, 2010). The Bournes filed their appeal on July 21, 2010, which became Case No. 10 MISC. 434334 (KCL) in this court. After the Bournes filed their appeal of the ZBAs decision, Castagna defaulted on its agreement to purchase the Northwood development rights and, on September 7, 2010, those rights were assigned to First Colony Northwood LLC, the second highest bidder at the bankruptcy auction. First Colony was then substituted for Castagna as a defendant in the court case.
In October 2011, First Colony filed a new application for site plan modification with the Board of Selectmen, seeking to change certain design elements of the prior Castagna site plan. These design changes included alterations to building elevations and interior floor plan layouts and the re-location of two buildings to a different area of the lot. By a 1-1 vote [Note 25] the Selectmen denied the application, and their decision was filed with the town clerk on January 5, 2012. First Colony did not appeal this decision and instead, on February 28, 2011, filed an application for a building permit with the building inspector based on the rejected plans. The building inspector denied the building permit request on March 8, 2012.
First Colony then appealed the denial of the building permit to the ZBA on April 5, 2012. The Bournes opposed that appeal. The Zoning Board held a public hearing on May 21, 2012 and reversed the denial of the building permit, filing its decision with the town clerk on May 25, 2012. As the reason for its reversal, the ZBA wrote,
The Selectmens failure to approve the appellants request for site plan modification was based on Vice Chairman Haardes disagreement with a 2010 decision allowing modification of the age restriction condition in the original site plan decision. The Board of Appeals found that the age restriction issue was not properly before the Board of Selectmen in 2011 and should not have been considered in its review of the appellants request for site plan modification. Therefore, the Board of Appeals found that the Selectmens failure to approve the appellants request was inappropriate [and] the requested amendments to the 2010 Site Plan Modification Decision contain alterations to the plans that are minor in nature.
Minutes of the Public Hearing of the Sudbury Board of Appeals at 3 (May 21, 2012). [Note 26] The Bournes appeal of this decision is the subject of 12 MISC. 465978 (KCL).
Since the Bournes arrived at Northwood in 2003, there has been no in-house Health Care Coordinator, nor even any such co-ordination off-site. There has been no provision of physical therapy services, transportation services, housekeeping services, or food service. The recreational services provided consist solely of a few pieces of exercise equipment placed in a room in the activities building in 2003. The previously-existing indoor swimming pool has been drained and padlocked. There has never been a wellness clinic, except for a heart pressure monitor which was recently put in a room in the activities building.
Additional facts are set forth in the Discussion section below.
The cases before me are G.L. c. 40A, § 17 appeals with their outcome dependent upon the proper interpretation of the Sudbury Zoning Bylaw; specifically, what age restrictions must be maintained, and what facilities and services must be provided, for a development to qualify as a residential care facility as defined in Bylaw §7000. The standard of review is the familiar one. The trial judge makes his own findings of facts and need not give weight to any made by the board. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012). The judge then determines the content and meaning of the applicable statutes and by- laws and decides whether the board has chosen from those sources the proper criteria and standards to use in addressing the zoning relief requested. Id. While some measure of deference is given to a local boards reasonable interpretation of its own zoning bylaw, an incorrect interpretation is not entitled to deference. Id. at 475, Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). If the board has materially misinterpreted or misapplied the bylaw, its decision must be vacated. See Shirley Wayside, supra.
Bylaw §7000 defines a residential care facility as one which provides assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings. A bylaws meaning is determined by the ordinary principles of statutory construction. Shirley Wayside Ltd. Partnership, 461 Mass. at 477. The court looks to the statutory language as the principal source of insight into legislative intent, and when the meaning of the language is plain and unambiguous, the statute is enforced according to its plain wording unless a literal construction would yield an absurd or unworkable result. Id. All of its provisions must be given effect so that no part will be inoperative or superfluous. Id.
The parties agree that Northwood was neither intended nor approved as an assisted living development. As noted above, it must thus provide (1) independent living arrangements, (2) to persons 55 or older, (3) in one or more buildings.
I begin with the age requirement. By the plain language of the bylaw, Northwoods occupancy must be restricted to persons 55 or older. Other regulatory schemes may permit a lesser percentage, but they do so by explicit direction. [Note 27] No such language appears here. However onerous a 100% requirement might be, [Note 28] it is not absurd, [Note 29] it is not unworkable, [Note 30] and it thus governs. [Note 31] See Shirley Wayside Ltd. Partnership, 461 Mass. at 477. It is what town meeting intended. [Note 32] It is what the plain language of the bylaw says. It is what the 1997 Selectmens decision construed it to say. [Note 33] It is what the towns building inspector told the Selectmen [Note 34] and the ZBA [Note 35] it said. And it is what the Selectmen again construed it to say after they realized the mistake they made in their 2010 Site Plan Modification Decision. [Note 36] Only the ZBA disagreed, and it is incorrect.
The plain language of the bylaw also makes clear that the development must have dedicated spaces, on-site, that distinguish it from ordinary condominiums (it is a residential care facility), and that the care services required by the bylaw to enable true independent living by its elderly residents must be provided, at least in part, in one or more buildings in that facility. As the Selectmen aptly noted at their 1997 hearings on the original site plan application, the mere presence of a listing of services in the lobby would not suffice.
The remaining questions presented are thus two: what facilities and services are required for independent living arrangements, and how should they be required? Must there be a mandatory baseline or, as the defendants argue, is it permissible to leave them to the discretion of the condominium board of trustees, subject only to zoning enforcement actions, without baseline guidance to the condominium residents or building inspector on what they should be? [Note 37] The defendants argue for the latter, contending that the Bournes challenge to the ZBA decisions is premature and unripe. Let the trustees adopt whatever they choose, the defendants say, and then review whats been adopted.
It is superficially seductive to do what the defendants ask avoid a present determination of what the bylaw requires, leave it up to the condominium trustees to decide what will be provided, and act only in response to enforcement requests challenging the trustees decisions. That approach, however, has at least three flaws, each of them fatal.
First, it is impermissible as a matter of law. Zoning requirements must be clear. [A]n ordinance or bylaw imposing such restrictions on the use of property ought not to stand when it is so vague and ambiguous that its meaning can only be guessed at. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law, and this is no less true of a municipal ordinance or regulation. OConnell v. Brockton Bd. of Appeals, 344 Mass. 208 , 212 (1962) (internal citations and quotations omitted). The Selectmen gave clear, baseline requirements in their 2010 Decision. The ZBA has now eliminated that baseline, leaving nothing in its place. At trial, the ZBA did not offer a single witness to testify to what a reasonable interpretation of the care requirements in the bylaw might be, thus creating uncertainty and ambiguity where none existed before. This violates the precepts of zoning and, for that reason alone, its decision must be vacated.
Second, it is unworkable. The former building inspector, James Kelly, testified that he considered the baseline requirements of the bylaw to be those imposed by the Selectmens 2010 site plan approval decision. The ZBA has now brushed those aside without setting out any new, clear guidelines. What is Mr. Kellys successor to do when reviewing the trustees now- discretionary judgments, which almost certainly will change from time to time? How is a condominium resident to judge when an enforcement action time consuming and expensive should be sought, and how successful it might be? [Note 38] Reviewing courts will be condemned to a potentially non-ending series of appeals. Again, this contradicts the foundations of zoning.
Third, it will likely lead to a steady erosion of care, with the strong possibility of its ending over time. With nothing certain, those now in residence and most in need of care will likely sell their units. Those like them, who might otherwise have been drawn to the development, will avoid it and buy elsewhere. Those remaining in Northwood will steadily skew healthier and younger, and thus have little incentive to vote for continuations of facilities or services. The building inspector, with many demands on his time, cannot be expected to police bylaw compliance on his own, and the trustees annual reports (assuming they make them) are not a trustworthy substitute since the zoning board will not schedule hearing time in the absence of a concrete dispute. Thus, over time, the development will become less and less zoning compliant, more and more like an ordinary condominium, and the purpose of its zoning will have been defeated.
In sum, the defendants arguments that these appeals should be dismissed because the disputes they raise are not ripe must be rejected. It was error for the ZBA to eliminate all mandatory care requirements and leave those decisions in the discretion of the condominium trustees.
So what baseline facilities and care does the bylaw require? The defendants gave no guidance at trial. Mr. Kelly, the former building inspector, relied on the Selectmens 2010 site plan conditions, now eliminated by the ZBA. The ZBA decision suggested that (1) mere coordination of services might suffice (without explaining how such coordination would take place, or requiring any aspect of that coordination, or any of the services themselves, to be on- site), and (2) the non-exclusive designation of one room in the entire complex as available for visiting nurses, therapists and other medical personnel to examine and consult with unit owners, might be the only on-site space necessary for the development to qualify as a Residential Care Facility. But these are clearly insufficient. A residential care facility is not created by making a single room available for nurse examinations from time to time, and an off-site call center, with no-one on site to assist those callers needing assistance, does not amount to independent living arrangements in one or more buildings by any reasonable definition. What, then, does?
The key lies in evaluating what elderly persons need to remain independent for as long as possible, short of assisted living or nursing home care. They often do not drive, are more likely to need on-site social, interactive space because of that lack of mobility, and may greatly need someone on-site to help them obtain and coordinate doctors visits, grocery and clothing purchases, housekeeping services, meals, trips to stores and entertainment, and the like. The conditions in the Selectmens 2010 site plan approval are one possible solution, but as even that decision recognized when it explicitly provided for later amendment, may be more than reasonably necessary. Another was outlined by the Bournes expert, Christopher Wise the CEO of Wise Living, which owns and operates independent living facilities in Massachusetts who testified regarding the minimum level of service required of an independent living facility.
According to Mr. Wise, at the very minimum, the characteristics of an independent living facility include a 24-hour staff, meals available to residents on request, and common areas which include dining, exercise, and activities rooms. As Mr. Wise explained, although amended Condition 22B specifies that skilled services would be available on an as-needed basis rather than provided by a 24-hour on-site staff, it does not require an in-house health care coordinator, which, in his opinion, is critical to Northwood being a residential care facility. As he explained, [w]ithout the coordinator, none of it works because the individual has a hard time, if calamity has struck, to go and ferret things out. In Mr. Wises independent living facilities, for example, the coordinator (whom he calls the resident assistant), helps residents with everyday tasks, such as arranging transportation to medical appointments. According to Mr. Wise, common areas, such as a library and lounge, are necessary to allow residents to socialize and interact with each other. Mr. Wise also testified that garden areas serve an important function since they provide an activity for residents to engage in, and also offer benefits to residents with Alzheimers disease who, with their spouses support, need not yet go to full-time Alzheimers care. [Note 39] Likewise, in his view, arrangements, by contract or otherwise, with outside healthcare providers are important features of independent living facilities. As Mr. Wise acknowledged, there is no state regulation or statute that defines what constitutes an independent living facility and Northwood need not perfectly mirror one of Mr. Wises developments. However, his testimony demonstrates that the conditions that were put in place by the Selectmen in their 1997 site plan decision closely reflect an industry understanding of what care services must be offered to residents in an independent living facility.
It is not appropriate for me to rule on the specifics of the bylaws requirements before giving the ZBA the opportunity to do so itself. I thus VACATE and REMAND the ZBAs decision in Case No. 10 MISC. 434334 (KCL) to require 100% over-55 occupancy (with the exception of spouses) and to set forth the baseline on-site facility and care requirements necessary for Northwood to be a residential care facility within the meaning of the bylaw, retaining jurisdiction of the case for purposes of post-remand review
In Case No. 12 MISC. 465978 (KCL), the Bournes contend that the ZBAs decision directing the building inspector to issue a building permit to First Colony to implement certain design changes must be annulled because, pursuant to the Sudbury bylaw, First Colony did not timely appeal the Selectmens site plan decision to the Zoning Board within 30 days and instead took an appeal only after being denied a building permit. Section 6390A of the zoning bylaw provides, [a]n appeal from a decision of the Board of Selectmen relating to the substantive provisions of the Zoning Bylaw pursuant to Section 6300 shall be taken in accordance with the provisions of G.L. c. 40A, § 8. Chapter 40A, § 8 provides in relevant part, [a]n appeal to the permit granting authority may be taken by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings or other administrative official, in violation of any provisions of this chapter or any ordinance or by-law adopted thereunder.
In response to First Colonys motion to dismiss Case No. 10 MISC. 434334 (KCL), I ruled that the Bournes had properly appealed the Selectmens 2010 modified site plan decision to the ZBA without first waiting for an action by the building inspector on a building permit application. See Mem. & Order on Defendant Northwood at Sudbury Condominium Trusts Motion to Dismiss at 6 (Apr. 12, 2012). There, I relied on the recently decided Wildstar Farm LLC v. Planning Bd. of Westwood, 2012 WL 468226 (Mass. App. Ct. 2012) (Rule 1:28 disposition, unpublished), which held that a town may adopt a bylaw providing for immediate appeal of a site plan decision even if it is the non-discretionary type that is typically not appealable until the issuance or denial of a building permit. Mem. & Order at 5. As previously noted, Sudbury has such a bylaw. Id. at 5-6 (discussing Sudbury Zoning Bylaw).
At the time First Colony filed its application with the building inspector on February 28, 2012 following the site plan decision, it did not have the benefit of this courts ruling in the earlier case and the Wildstar opinion had only recently been issued on February 15, 2012. First Colony instead relied on other, pre-Wildstar case law directing proponents who have been denied site plan approval in certain circumstances to first apply for a building permit before seeking further review by a zoning board of appeals. See, e.g., Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct. 67 , 69 (2006).
In these circumstances, it would be unjust to apply my ruling retrospectively. See Eaton v. Federal Natl Mortgage Assn., 462 Mass. 569 , 589 (2012) (In the property law context, we generally apply our decisions prospectively out of concern for litigants and others who have relied on existing precedents.) (internal citations and quotations omitted). Aside from the procedural argument, the Bournes Complaint in 12 MISC. 465978 does not challenge any of the design elements of First Colonys site plan modification, but rather contends that the Zoning Board erred in allowing the modified plan because it did not reestablish the age restriction, nor did it restore the residential care component. See Complaint at ¶ 35. Those issues have been addressed above in the context of the earlier action, 10 MISC. 434334. However, to give the board the opportunity to revisit those design changes, I VACATE AND REMAND Case No. 12 MISC. 465978 (KCL), for reconsideration in light of the services and on-site facilities directed by the new board decisions in Case No. 10 MISC. 434334, which may or may not affect the particulars of the modified plans the ZBA decision approved, again retaining jurisdiction for purposes of post-remand review.
Judgment shall enter accordingly.
[Note 1] For consistency and ease of reference, I date each board decision by the date of its filing with the town clerk.
[Note 2] An exception was made for younger spouses.
[Note 3] The condominium was approved as a phased development, and the original developer went bankrupt after construction of the first two phases.
[Note 4] Castagna also requested that the number of units be reduced from the originally-planned 66 to 43, with the remainder of the 43 constructed in townhouse-style buildings. This Bournes have not appealed this aspect of the request, which was approved by the Selectmen.
[Note 5] Site Plan Modification Notice of Decision, Sudbury Bd. of Selectmen, Northwood at Sudbury (Mar. 25, 2010).
[Note 6] Notice of Decision, Sudbury Zoning Bd. of Appeals (Jul. 2, 2010).
[Note 7] The issue, put briefly, is this. Site plan review is not explicitly recognized in G. L. c. 40A, but has been found to be a permissible regulatory tool for "controlling the aesthetics and environmental impacts of land use." Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 57 (1997). Because of this gap in the statute, there is no explicit statutory mechanism for appeal of site plan review decisions and, in that absence, case law has sought to provide guidance. In some instances, a decision is immediately appealable to court. See e.g. Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 21-22 (1995). In others, it must await the issuance of a building permit, and the appeal is from that permit. See, e.g., DuFault v. Millenium Power Partners LP, 49 Mass. App. Ct. 137 , 139 (2000). The distinction tends to turn on whether the site plan decision has a discretionary element. If the reviewing board has discretion to refuse approval, the decision is considered in the nature of a special permit and immediately appealable pursuant to c. 40A, §17. See Quincy. If there is no discretion if the use is as of right and the most the board can do is impose reasonable conditions review must await the building permit. See DuFault. It is not always clear, however, in which category a particular site plan review process falls, and an error can be unforgiving since untimely appeals are dismissed. See Connors v. Annino, 460 Mass. 790 (2011). The result has been the filing of immediate appeals in any situation at all arguable, and the waste of both private and municipal resources when a court finds the appeal premature. There are also advantages, to both the parties and the town, to knowing whether a site plan approval will survive scrutiny before undergoing the additional effort and expense associated with a building permit.
The Sudbury site plan review bylaw is a perfect illustration of the dilemma. It provides that Site Plan approval shall be granted upon determination by the Board of Selectmen that the plan meets the following objectives and that [t]he Board of Selectmen may impose reasonable conditions at the expense of the applicant, including performance guarantees, to promote these objectives. Bylaw, §6380. The use of the word shall suggests a DuFault-type situation, where approval must be granted subject only to reasonable conditions. But the follow-up phrase, upon determination by the Board of Selectmen that the plan meets the following objectives, suggests that the Selectmen have Quincy-type discretion. This would be consistent with the reviewing body itself the Selectmen (an elected, policy-making body) rather than the Planning Board and the further review by the zoning board.
To moot any possible ambiguity, a number of municipalities, including Sudbury, have adopted bylaws providing for immediate appeal of site plan decisions in either situation. Wildstar upheld the validity of such bylaws. My ruling followed Wildstar. Mem. & Order on Defendant Northwood at Sudbury Condominium Trusts Motion to Dismiss (Apr. 12, 2012).
[Note 8] See Letter from Town Manager to Mark Kablack, Esq. (Jan. 5, 2012).
[Note 9] See Minutes of the Public Hearing, Sudbury Zoning Bd. of Appeals at 2 (May 21, 2012) (reflecting the Selectmens rationale). As previously noted , the Selectmens 2010 decision, affirmed by the ZBA, had approved a reduction in over-55 occupancy from 100% to 80%. The Selectmen apparently thought differently in 2011 and based their denial on that ground. Id.
[Note 10] He too is of the opinion that the bylaw requires 100% over-55 occupancy. See Memorandum to the towns Board of Selectmen from James F. Kelly, Inspector of Buildings (Mar. 8, 2010).
[Note 11] Mr. Kelly was the towns building inspector at the time of the board decisions on appeal.
[Note 12] No argument has been made that it would otherwise qualify for residential occupation, then or now.
[Note 13] Ms. Clark is referred to throughout the 1997 Site Plan Decision as Selectman Clark.
[Note 14] The plaintiffs do not dispute this.
[Note 15] The applicant agreed to all relevant time extensions.
[Note 16] Under the approved site plan, the five residential towers were to surround the central activities building.
[Note 17] The record does not indicate if these were related to the Northwood development or independent of it.
[Note 18] As the ZBAs June 7, 2010 meeting minutes reflect, Castagnas attorney, Mark Klaback, stated that the developers set out to finish the project as it was approved at bankruptcy, but the plan was just too costly. ZBA minutes at 4. No evidence was offered that Castagna would have lost money if the mandatory conditions remained in place (presumably something it evaluated when it bid). Rather, so far as I can discern, too costly meant that Castagnas financial return from completing the development with those conditions was less than what it now wanted.
[Note 19] Castagnas other argument was that removal of the mandatory conditions, making everything discretionary with the condominium trustees, would add flexibility. Left unsaid was the likelihood of significant dilution, particularly with the proposed reduction in the number of over 55 occupants. Younger occupants would have no need of more senior-oriented facilities and services and would not want to pay for them in their condominium assessments, thus pressuring the trustees for their elimination. This was exactly the situation predicted by Selectwoman Clark in the 1997 hearings, and why the facilities and services were made mandatory. See discussion above.
[Note 20] See ZBA minutes at 4 (Jun. 7, 2010).
[Note 21] As noted below, the 80% requirement was based on the Federal Fair Housing Act, 42 U.S.C. §§3601 et seq. which addresses housing for older persons, not residential care facilities of any kind. See 42 U.S.C. §§3607(b)(2)(C)(i). There is nothing in the record to indicate any reference at Town Meeting to that Act, much less any intent to be guided by its provisions or interpretations, for any purpose.
[Note 22] The recorded Amended Master Deed includes the ballots of each unit owner indicating how the owner voted on the amendments. It shows that Mrs. Bourne voted for both. Mr. Bourne, however, did not vote for either and, with others similarly opposed, appealed these changes to the ZBA after the Board of Selectmen allowed them as modifications to the original Northwood site plan decision. Mrs. Bourne later joined with Mr. Bourne as a plaintiff in these cases.
Mrs. Bourne did not testify at trial, so her reasons for changing her mind after her vote were not explained. In any event, she was not alone in this. As previously noted and discussed again below, the Selectmen themselves changed their position after initially approving the site plan modifications, only to be reversed by the ZBA.
[Note 23] Attorney Markoffs letter indicates that the changes to the location and design of the structures at Northwood only had to be approved by the Board of Selectmen and the building inspector. So far as the record shows, the unit owners never took a vote on those site plan modifications.
[Note 24] By written memorandum, the building inspector advised the board, [i]f the age restriction is changed, the project will not conform to the bylaw and a variance will be required from the Zoning Board of Appeals, and [i]f the Residential Care Facility, as defined in previous decisions, is removed or eliminated, the development will not meet the requirements of a care facility and a variance will be required for the proposed development. Memorandum to the Board of Selectmen from James F. Kelly, Inspector of Buildings (Mar. 8, 2010).
[Note 25] The other Selectman present at the meeting, John Drobinski, recused himself from the vote.
[Note 26] The minutes are incorporated into the ZBAs Notice of Decision (May 25, 2012).
[Note 27] Compare 42 U.S.C. §3607(b)(2)(C)(i), the statute referenced in the board decisions on appeal, whose 80% figure is expressly stated. Also, as previously noted, §3607 addresses housing for older persons, not residential care facilities.
Tellingly, the only section of the towns zoning bylaw referencing 42 U.S.C. §3607(b)(2)(c) the bylaw provisions concerning senior residential communities explicitly states in its age qualification that one hundred percent (100%) of the dwelling units in a Senior Residential Community shall each be owned and occupied by at least one person fifty-five (55) years of age or older per dwelling unit (compliance with §3607 is only in all other respects) and, in the event of the death of the qualifying owner/occupant(s) of a unit, or foreclosure or other involuntary transfer of a unit in an SRC, a two-year exemption shall be allowed for the transfer of the unit to another eligible household. Bylaw §5332 (emphasis added).
[Note 28] Why it would be onerous or what, exactly, the ZBA meant when it used that word, was not explained. There was no evidence that the development had had difficulty finding 55 and over purchasers for its units in the past, and no evidence that it would have difficulty now or in the future.
[Note 29] Quite the contrary, it makes perfect sense. As previously noted, any dilution of the over-55 population creates internal conflicts between younger and older residents and dilutes internal policing of the care requirements. An under-55 population will also likely have children, which materially changes the developments dynamics. See trial testimony of Sidney Bourne.
[Note 30] To the contrary, it eliminates inconsistency and potential confusion and unfairness on how units may be marketed and sold. With a 100% requirement, the same rules (sales to only over-55s) apply at all times to everyone. They are thus not dependent on whether, at the moment of any particular sale, any part of the 20% is unused (making that unit, at that moment, available for sale to under-55s). If only certain designated units will be exempt from the 55 and over restriction, it avoids conflict over which those units will be.
[Note 31] I concur with the exception for under-55 spouses, which is eminently reasonable and must have been within the contemplation of town meeting. None of the parties disagrees.
[Note 32] See statement of the towns building inspector to the ZBA as reflected in the minutes of the June 7, 2010 hearing.
[Note 33] See 1997 Site Plan decision (Nov. 14, 1997).
[Note 34] See n. 24, supra.
[Note 35] Minutes of Public Hearing, Sudbury ZBA at 4 (Jun. 7, 2010)
[Note 36] See Minutes of the Public Hearing of the Sudbury Board of Appeals at 3 (May 21, 2012).
[Note 37] The condominium trustees propose taking periodic surveys of their residents and then submitting an annual report to the town. Neither, however, was required by the ZBA decisions, nor is there any review mechanism other than enforcement requests.
[Note 38] This might lead to either too few enforcement actions, or too many.
[Note 39] According to Mr. Wise, garden areas are particularly important for residents with Alzheimers because its the last piece that someone [with Alzheimers] can touch.