EASTERN MANAGEMENT & DEVELOPMENT, LLC v. ANTHONY PADULA, RON CALABRESE, JOSEPH HALLIGAN, JR., JOHN CARROLL and GREGORY BALLARINO, as Members, WILLIAM DAVID, as Associate Member of the PLANNING BOARD for the TOWN OF FRANKLIN, MASSACHUSETTS, and the TOWN OF FRANKLIN, MASSACHUSETTS.

INTRODUCTION

The Plaintiff, Eastern Management & Development, LLC (“Plaintiff” or “EMD”), has appealed under G.L. c. 40A, § 17 from the October 3, 2011 decision of the Franklin Planning Board (“Planning Board”) which denied EMD a special permit to add nine additional dwelling units to a development approved under a previously granted special permit. The Plaintiff’s three-count, Amended Complaint seeks to have the Planning Board’s decision annulled because it is in excess of the Planning Board’s authority, legally untenable, and unreasonable, arbitrary and capricious (Count I). It also seeks a determination pursuant to G.L. c. 240, § 14A (Count II) or, in the alternative, a declaratory judgment pursuant to G.L. c. 231A (Count III) that EMD was not required by the Town of Franklin Zoning By-law (the “By-law”) to apply for a new special permit from the Planning Board in order to modify the previously special permitted development project but that, in light of a use variance for the additional building and units, the correct procedure should have been a limited review by the Planning Board of a modified site plan for the development.

EMD has moved for summary judgment under its alternative G.L. c. 240, § 14A and G.L. c. 231A claims. The Defendant Planning Board and the Defendant Town of Franklin have jointly cross-moved for summary judgment dismissing the Plaintiff’s Count II and Count III claims on the grounds that: (1) the court lacks subject matter jurisdiction to grant declaratory relief under G.L. c. 231A where the G.L. c. 40A, § 17 appeal is Plaintiff’s exclusive remedy for challenging the Planning Board’s special permit decision, and (2) the court lacks subject matter jurisdiction under G.L. c. 240, § 14A to determine the effect of the ZBA’s 2011 variance decision on the use and development of Plaintiff’s land. Alternatively, the Defendants ask the court for summary judgment in their favor that, pursuant to the By-law and the terms of the ZBA’s variance decision, the Planning Board has the ultimate authority, as special permit granting authority for senior village developments, to decide whether or not to allow the addition of nine units to the Plaintiff’s previously approved senior village development, and that such a change may be allowed only through a new special permit or a modification of the existing special permit.

As a preliminary matter, I agree with the Defendants that the court lacks subject matter jurisdiction under G.L. c. 240, § 14A with regard to Plaintiff’s Count II claim. Although the determination as to whether or not the Plaintiff’s proposed changes to its senior village development project are properly the subject of a new special permit decision by the Planning Board necessarily involves an interpretation of the Town’s Zoning By-law, it also implicates interpretation and application of the Zoning Act and an analysis of the terms and conditions of the variance decision and the existing special permit – matters which are not properly decided under a G.L. c. 240, § 14A claim. See e.g., Whitinsville Retirement Soc., Inc. v. Town of Northbridge, 394 Mass. 757 (1985).

The Defendants are correct that, where G.L. c. 40A, § 17 provides the Plaintiff with its exclusive remedy for challenging the Planning Board’s special permit decision, a claim under G.L. c. 231A is not available to the Plaintiff. The Defendants also correctly point out that the validity of the never-appealed variance decision cannot be an issue in this case where the statutory appeal period applicable to that decision has expired. EMD, however, is not attempting to challenge the validity of the variance decision. Rather, the Plaintiff is challenging the Planning Board’s special permit decision “in light of” the variance decision. Therefore, the court does have subject matter jurisdiction to decide, within the context of the Plaintiff’s G.L. c. 40A, § 17 appeal (and not as an independent, declaratory judgment claim) whether EMD is correct in asserting that the ZBA’s variance decision left the Planning Board without authority to deny Plaintiff’s proposed modifications to the senior village development. Because the facts material to this issue are not in dispute, and because resolution of this issue will significantly narrow the remaining issues for trial under Count I, partial summary judgment is appropriate in this instance.

Based on the undisputed facts, and the applicable law, I conclude that: (1) the Planning Board is the sole special permit granting authority designated in the By-law with respect to senior village developments; (2) neither G.L. c. 40A, nor the By-law authorizes the ZBA to modify a senior village special permit previously granted by the Planning Board; (3) the addition of a sixth building with eight units, and the addition of one unit to the already approved fifth building in the Villas senior village development, may reasonably be treated as a substantial change to the project authorized under the original senior village development special permit, which necessitates further special permit review by the Planning Board, whether in the context of an application to modify the original special permit or an application for a new special permit to replace the original. Accordingly, the Defendants are entitled to partial summary judgment in their favor that the Planning Board did not exceed its authority by considering EMD’s proposed modifications through the special permit review process, and that the variance decision does not alter the Planning Board’s special permit granting authority with respect to EMD’s senior village development.

UNDISPUTED MATERIAL FACTS

The summary judgment record demonstrates the following undisputed facts relevant to the By-law, EMD’s original senior village development special permit, and EMD’s attempts to increase the number of buildings and units authorized under the original senior village development special permit.

Senior Village Development Zoning

A Senior Village Development Overlay District is superimposed on several of the Town’s zoning districts, including the Rural Residential I (RRI) district in which EMD's land is located. Within a Senior Village Overlay District, a senior village planned unit development (“senior village”) use is allowed only by special permit of the Planning Board. § 185-48.B. (2) and § 185-48.C. (2) (a). [Note 1] Multi-family residences may be permitted in a senior village, but are not otherwise permitted in the RRI district, in which by-right residential development is limited to single-family dwellings on lots with areas of at least 40,000 square feet. The stated purpose of the Senior Village Development Overlay District is:

… to encourage development of master-planned residential communities for persons 55 years of age and older, by allowing a greater variety of uses and building types at a higher density than would normally be allowed and allowing greater flexibility in site planning so as to promote affordable housing and the preservation of open space and historic resources within the development.

§ 185-48.A.

In granting a senior village special permit, the Planning Board is required to make certain findings after applying the general special permit criteria contained in § 185-45.E.(3) of the By-law, as well as the three criteria spelled out in § 185-48.G. (1) (a)-(c) for senior village special permits.

Among the standards applicable to senior village developments is a limitation on the total number of units which can be approved in a senior village development. The base number of units permissible in a senior village development is currently set at 1.5 housing units per gross site acre in the RR1 district. [Note 2] Based on an evaluation of the development plan’s impacts and benefits, the Planning Board may permit additional units above the base number by awarding specified density bonuses for such amenities as additional affordable housing, additional open space, publicly accessible trails, and rehabilitation of existing buildings. § 185-48.D. (2) (c). The maximum number of permissible units in a senior village, with all possible bonuses applied, is capped at 2 1/2 times the base number. § 185-48.D. (2) (a) (i). [Note 3] All dwellings in a senior village must be made subject to enforceable age restrictions, limiting occupancy to persons aged 55 or older, their spouses, or other persons with established medical needs. § 185-48. D. (1) (a).

The Plaintiff’s 2004 Senior Village Special Permit

On June 21, 2004, the Planning Board voted to grant EMD a special permit for a 36-unit, senior village development on a 12.5 acre site in the RRI zoning district, called “The Villas at Eagle Nest” (the “Villas”). The Planning Board’s 2004 decision was filed with the Franklin Town Clerk on July 1, 2004 (the “2004 Special Permit”). [Note 4] The number of units approved under the 2004 Special Permit was based upon the following information and calculation:

12.5 gross site acres X 2 units per acre = 25 base units + 2.66 acres of additional open space X 3 units per acre = 7.98 (8) bonus units + 0.75 miles of trails X 1 unit per 0.25 miles = 3 bonus units Total of 35.98 (36) units [Note 5]

The 2004 Special Permit recites that approval was based upon the application materials and plans submitted to the Planning Board, and makes the approval subject to four conditions, including Condition no. 1 which states:

This Special Permit shall only apply to the above-referenced Site Plan as approved with conditions in a decision dated ________, 2004. [Note 6] This Special Permit shall not be construed to run with the land and shall run with the Site Plan. Any change of use, demolition and rebuild, or other major alteration to the [approved] site plan shall require a new special permit if such use, demolition and rebuild or alteration would require such a special permit under the Zoning By-laws of the Town of Franklin.

EMD’s Proposed Additions to the Villas

In August, 2010, EMD applied for a building permit to construct an additional eight-unit building in the Villas, and to add an additional unit in one of the already approved buildings, thereby increasing the number of buildings in the Villas from five to six, and the number of units from 36 to 45. On August 31, 2010, EMD’s building permit application was denied “without a variance/special permit from the Zoning Board of Appeals and a Site Plan Modification from the Planning Board.” The building permit denial was not appealed.

On August 31, 2010, EMD applied to the ZBA for a “variance to (1) increase the number of units allowed under the existing special permit from 36 to 45 …, and (2) to increase the number of buildings in the project from 5 to 6…..” [Emphasis added.] On January 20, 2011, the ZBA issued a “Detailed Recorded [sic] and Decision” reciting the ZBA’s findings, and recording the votes of the three ZBA members “to Grant” (the “ZBA Decision”).

Two of the ZBA’s findings are presented in numbered paragraphs, while the remaining findings are in unnumbered paragraphs of the ZBA Decision. One of the unnumbered findings recites an acknowledgment that the ZBA has authority to grant use variances. But the ZBA Decision does not specify any particular use provisions of the By-law being varied. Rather, the ZBA Decision indicates that the variance relates to the applicant’s request to increase the number of buildings and units already approved under the Villas special permit. The ZBA’s several unnumbered findings include the following:

That the applicant may apply to the Town of Franklin Planning Board for and receive, a New or Modified Special Permit for a total not to exceed forty-five (45) units to be built in not more than six (6) buildings, half of which buildings, three (3), shall be age restricted and sold to persons who are over fifty-five (55) years of age.

That the applicant shall seek a modified site plan approval from the Franklin Planning Board for the relocation of Building #4 and the location of the additional Building #2 (6th building), as shown on a plan entitled The Villas at Eagles Nest Site Plan Proposed Buildings #2 & #4 dated 08-27-2010 and drawn by hwmoore [sic] Associates, Inc.

The ZBA Decision was filed with the Franklin Town Clerk on January 21, 2011. Despite the ambiguous language in the ZBA’s Decision as to the precise relief granted, EMD never appealed or sought a modification of that Decision. [Note 7] Instead, EMD chose to interpret the ZBA’s Decision as a use variance permitting the Villas to exceed the density limits set by the 2004 Special Permit, subject only to Planning Board approval of a modified site plan for the project.

The 2011 Special Permit Decision

It is undisputed that when EMD applied to the Planning Board for approval of a modified site plan, the Planning Board took the position that EMD’s proposal necessitated a new special permit application. So, EMD next applied to the Planning Board for a senior village special permit allowing an increase of density from the 36 units approved under the 2004 Special Permit to 45 units, with the addition of a sixth building with eight units and the addition of one unit to a previously approved building.

The Planning Board denied the Plaintiff’s new special permit application on October 3, 2011, finding that the addition of a sixth building and the addition of another unit to an already permitted building would have adverse effects which would outweigh the beneficial effects on the neighborhood and the Town, and that the use was not in harmony with the purpose and intent of the Franklin Zoning By-law. The Planning Board’s “Certificate of Vote – Special Permit Senior Village Villas at Eagle’s Nest” (the “2011 Special Permit Decision”), was filed with the Franklin Town Clerk on October 11, 2011, and is the subject of the Plaintiff’s G.L. c. 40A, § 17 appeal in this action.

DISCUSSION

In its motion for partial summary judgment, EMD argues that, since neither the By-law nor G.L. c. 40A, § 9 contain any provisions for modification of a special permit, the ZBA’s grant of a use variance was sufficient to approve the additional units and building in the Villas senior village development, leaving the Planning Board without special permit granting authority over the modifications. Instead, EMD contends, the Planning Board’s role was to conduct only a limited review of a modified site plan for the Villas, incorporating the additions approved under the ZBA Decision. Plaintiff’s arguments, however, misconstrue the By-law, the zoning statute, and the terms and conditions of the 2004 Special Permit when it asserts that the ZBA has authority to modify the terms and conditions of a special permit previously granted by the Planning Board.

The 2004 Special Permit limits the Villas to the number of units (36) [Note 8] and the number of buildings (5) shown on the approved site plan, and requires a special permit for any major alterations to that site plan. As discussed above, the total number of units permitted under the 2004 Special Permit was calculated by adding bonus units to the permissible base number. Those bonus units were, in turn, determined by applying specific bonus criteria formulas set forth in the By-law. In view of the density limits set by the By-law and the terms of the 2004 Special Permit, it was not unreasonable for the Planning Board to conclude that EMD’s proposed twenty percent increase in units, and the addition of a sixth building in the development, represent a “substantial modification” of the 2004 special permit. As a matter of law, substantial changes or modifications to a use or development approved under a special permit necessitates a new or modified special permit based upon a deliberative and independent decision by the special permit granting authority. Barlow v. Planning Board of Wayland, 64 Mass. App. Ct. 314 , 320 (2005). The fact that neither the Zoning Act nor the By-law contains any provision expressly addressing modification of an existing special permit is of no consequence, as the procedure for a special permit modification is the same as that for a new special permit. Id.

The Plaintiffs are incorrect when they assert that there are alternative procedures available under the By-law for increasing the number of units authorized by the Planning Board under a previously granted, senior village development special permit. The Planning Board, by virtue of its designation under the By-law as the special permit granting authority for senior village developments, has the sole power to approve a modification of, or replacement of, a previously granted senior village special permit.

There is, in contrast, no provision in the By-law which expressly or impliedly authorizes the ZBA to grant a senior village special permit, or to modify a senior village special permit granted by the Planning Board. Section 185-45. E. (1) authorizes the ZBA to act as the special permit granting authority, “[e]xcept where specifically designated otherwise….” [Emphasis added.] But as addressed above, the By-law does otherwise designate the Planning Board as special permit granting authority for senior village developments. § 185-48. B. (2) (“Senior villages will be authorized only by special permit granted by the Planning Board.”)

There is also no provision in the By-law which expressly or impliedly authorizes the ZBA to grant a variance from the terms or conditions of a special permit issued by the Planning Board. While § 185-45. D. (2) (b) of the By-law authorizes the ZBA to grant use variances, the ZBA’s powers in this regard may only be exercised in the manner prescribed in G.L. c. 40A, § 10. See § 185-45.D. (2) (stating that the Board of Appeals “shall act in all matters under this chapter in the manner prescribed by Chapters 40A and 41 of the General laws.”)

The statutory power under G.L. c. 40A, § 10 to grant variances (including use variances), moreover, extends only to variances “from the terms of the applicable zoning ordinance or by-law…” [emphasis added], and not from the terms or conditions of a previously granted special permit. Nevertheless, relying on Wyman v. Zoning Board of Appeals of Grafton, 47 Mass. App. Ct. 635 (1999), EMD argues that the ZBA had the necessary power to vary the terms of the 2004 Special Permit because “a special permit is deemed a part of a town’s zoning by-law.” The Plaintiff’s reliance on for Wyman is misplaced. While the Appeals Court did recognize that the conditions of a variance or special permit are “subsumed in the provisions of c. 40A and ordinances or by-laws under which they are promulgated,” it did so in the context of determining that such conditions “are part of the zoning by-law to be enforced” under G.L. c. 40A, § 7, rather than private enforcement matters. Id. at 637. [Emphasis added.] Wyman does not hold that a zoning board of appeals has the power to grant a variance from special permit conditions. [Note 9]

CONCLUSION

For the reasons stated, the Plaintiff’s proposal to increase the density of a previously approved senior village special permit development is properly the subject of review by the Planning Board under an application for a new or modified, senior village special permit. Additionally, as the ZBA has no authority to vary the conditions of a special permit issued by the Planning Board, the ZBA Decision does not alter the Planning Board's special permit granting authority with respect to EMD’s proposed changes to the Villas senior village project. Accordingly, the Defendants are entitled to partial summary judgment that the Planning Board’s 2011 Special Permit Decision is not legally untenable in light of the ZBA Decision. The Defendants are also entitled to dismissal of Counts II and III.

Because this partial summary judgment decision does not adjudicate all of the Plaintiff’s claims under Count I, final judgment shall not enter at this time.