MISC 12-462430

March 3, 2014

Essex, ss.

Long, J.



At issue in this case is the validity of a rezoning of a 2.2 acre parcel in Swampscott, in the middle of a single-family residence zone, from single-family residence to the “by right” allowance of a multi-story, 41-unit, market-rate apartment/condominium complex without any age, affordability, or historic preservation restrictions. The parcel is at the top of the hill in the Greenwood Avenue neighborhood, overlooking the waterfront, and surrounded on all sides by the neighborhood’s homes. It is currently owned by the town and occupied by a now-vacant school building dating from 1893, last used in 2007. The rezoning was done in connection with the town’s intended sale of the parcel to a private developer, who would then demolish the historic building, build a 60-foot high new one (the zoning was previously restricted to 35 feet), and then sell its 41 newly-constructed units to the highest bidders. For ease of reference, I refer to it hereafter as “the Greenwood parcel.”

The plaintiffs are either abutting or nearby residents, and oppose the rezoning. They would have no grounds for opposition had the historic school building been preserved as the town originally intended (see discussion below) [Note 1], but now that the goal of preservation has been discarded in pursuit of a greater financial return, they contend the rezoning is impermissible “spot” zoning, the sole purpose of which was to generate as much money as possible for the town’s general fund from the parcel’s sale. See Whittemore v. Bldg. Inspector of Falmouth, 313 Mass. 248 , 249 (1943) (zoning unlawful when it singles out one lot “for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot”). The town disagrees, making, in essence, two arguments. The first is a straight-up defense. It is, the town says, a valid public purpose, and for that reason perfectly permissible, for it to rezone a town-owned parcel to maximize its sale price given the town’s financial needs. The second is a contention that the rezoning provides needed “diversity” in the town’s housing stock — additional smaller units for the town’s “empty nesters” who wish to remain in the community — and this, it says, is also a valid public purpose sufficient to justify the rezoning. See generally W.R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559 , 570 (2002) (once established that a zoning amendment has “a substantive relationship to the promotion of the public welfare, the amendments are not, by definition, spot zoning”).

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find the town’s contention that the rezoning was driven, in part, by the desire to create smaller residential units for the town’s aging population unpersuasive and not credibly supported by the evidence, even assuming that to be a valid public purpose for this particular site. In light of the lack of age, affordability and town residence restrictions or preferences, leaving the developer free (and, in this location, certain) to build market-rate, luxury-level units and sell them to the highest bidders whomever they may be, the rezoning is unlikely to have an “empty nester” effect and thus will not have a “substantive relationship” to that purported goal. See W.R. Grace, 56 Mass. App. Ct. at 570. Thus, the sole issue to be determined is whether, as a matter of law, the goal of generating maximum revenue from the sale of this town-owned parcel in and of itself justifies its rezoning to allow by-right, high-density development not permitted elsewhere in the surrounding zoning district. I find that it does not. The rezoning of the parcel is thus INVALID.

“Spot Zoning”

To put the following factual findings in context, I begin by setting out the standard by which spot zoning is judged.

Two principles are basic to all zoning. First, “[t]he power to make a division of the town into various districts and to designate the purposes for which land in those districts may be used…rests for its justification on the police power, and that power is to be asserted only if the public health, the public safety and the public welfare…will be thereby promoted and protected.” Caires v. Building Commr. of Hingham, 323 Mass. 589 , 593 (1949) (emphasis added). Second, “[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted. The basic assumption underlying the division of a municipality into zoning districts is that, in general, each land use will have a predictable character and that the uses of land can be sorted out into compatible groupings. … A zoning ordinance is intended to apply uniformly to all property located in a particular district, and the properties of all the owners in that district must be subjected to the same restrictions for the common benefit of all.” SCIT Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 107-108 (1984) (emphasis added, internal citations and quotations omitted).

Spot zoning is impermissible because it violates the uniformity principle, and occurs when there is “a singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.” Whittemore v. Bldg. Inspector of Falmouth, 313 Mass. 248 , 249 (1943). See also Smith v. Bd. of Appeals of Salem, 313 Mass. 622 , 624-625 (1943); Leahy v. Inspector of Bldgs, New Bedford, 308 Mass. 128 , 132-134 (1941). A zoning amendment that singles out such a lot for less restrictive treatment may be permissible, however, if it advances the “public welfare.” See W. R. Grace & Co.-Conn., 56 Mass. App. Ct. at 570 (zoning amendments that have “a substantive relationship to the promotion of public welfare” are not, by definition, spot zoning). “Public welfare,” however, has a particular meaning in the zoning context. It must be based on permissible land use planning objectives, see National Amusements Inc. v. Boston, 29 Mass. App. Ct. 305 , 313 (1990), and “[t]here must be a showing of some substantial relation between the zoning code amendment and the general objectives of the enabling act,” id. at 309. “Among the considerations to be taken into account are the physical characteristics of the land, its location, size, and the nature of adjoining uses.” Id. at 310. Although there is a strong presumption in favor of validity, and “if the reasonableness of a zoning regulation is fairly debatable, the judgment of the local legislative body…should be sustained … a zoning ordinance or by-law will be held invalid if it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals or welfare.” Id. at 309-310. “[T]he applicable principles are of judicial deference and restraint, not abdication.” Id. at 310.

While the ultimate effect of a zoning amendment is the most important part of the inquiry, [Note 2] an examination of the process by which the amendment was adopted — what was studied, what was not; what was initially part of the amendment, what was later changed, and why it was changed — can be revealing of subsequent “fig leaves of rationalization.” National Amusements Inc., 29 Mass. App. Ct. at 311-312. Also potentially indicative is the extent of the difference in treatment. When uses are at issue that are “often considered desirable but which would be incompatible in a particular district unless conditioned in a manner which makes them suitable to a given location (for example, an apartment house in a single family district),” they are generally either prohibited or allowed only by special permit. SCIT 19 Mass. App. Ct. at 109. Here, with the exception of exempt religious and educational uses, only two uses more dense than single family homes were allowed in the district at all (group residences [Note 3] and assisted or independent living facilities), and they are allowed only by special permit. Multi-family homes were explicitly prohibited. In stark contrast, the rezoning of this site — in the middle of that district, on narrow winding streets in an area plagued with traffic problems — allows by-right development of 41 separate housing units in a new high-rise building.


These are the facts as I find them after trial.

The Greenwood Avenue Neighborhood

The area surrounding the Greenwood parcel is a long-established neighborhood of homes built in the late 1800’s/early 1900’s, primarily of wood and Victorian in style. It is situated on a hill, close to the waterfront, and the Greenwood parcel occupies the highest point. The neighborhood borders the town’s Olmsted District, which was designed by the famous landscape architect to provide transition through the area by incorporating the natural features of the surrounding land. The roads are thus steep, narrow and winding.

Swampscott and its nearby towns have now become bedroom communities for the greater Boston area, and traffic in the Greenwood Avenue neighborhood has become a persistent concern. During the morning commute, vehicles turn onto Greenwood Avenue to avoid heavier traffic on Humphrey Street, a major roadway running along the waterfront which turns into Route 1A. Because Greenwood Avenue is on a hill, this cut-though traffic typically consists of cars accelerating to reach the top. Michael McClung, a witness at trial who lives in the neighborhood, described consistent, heavy traffic flow in the mornings. Pulling out of his driveway onto the hill each morning, he says, is “an exercise in terror.”

The area’s zoning reflects these traffic problems, severely restricting the density of development. Both the Greenwood parcel and the neighborhood around it are in an A-2 district, with only single family residences and exempt religious and educational uses allowed by right. Minimum lot size is 20,000 square feet. Minimum front and rear setbacks are 25 feet with side setbacks of 10 feet. Buildings are limited to 2.5 stories, but cannot exceed 35 feet. Two-family and multi-family dwellings are prohibited. As previously noted, the only “dense” developments allowed are group residences and assisted or independent living facilities, and these are allowed only by special permit. [Note 4] See Town of Swampscott Zoning By-law, Art. II, § (table of principal uses). The granting of such a permit requires assessment of the social, economic or community needs served by the proposal, traffic flow and safety (including parking), the adequacy of utilities and other public services, neighborhood character and social structures, impacts on the natural environment, and the potential fiscal impact on the town, and requires specific findings that the benefit to the town and the neighborhood outweigh the adverse effects of the proposed use. See Zoning By-law, Art. V, § Many of the homes and lots in the Greenwood neighborhood predate zoning regulations and are thus grandfathered from these current zoning requirements. Nearly all, however, are one or two family structures.

The Greenwood Parcel

The Greenwood parcel (the subject of the challenged rezoning) is 2.22 acres and located at 71 Greenwood Avenue. It was acquired by the town on June 23, 1893. As noted above, it is completely surrounded by the residences in the Greenwood Avenue neighborhood. It is currently occupied by a 4-story, 51,121 square-foot former school building, the main section of which was constructed in 1893. [Note 5] For many decades, the building served as the local high school, and then a middle school, until replaced by newer structures in other locations. It has been vacant since 2007.

The Background to the Rezoning, and the Rezoning Process Itself

In 2002, Swampscott received a grant from the state to create a plan addressing its long-term development needs. The town formed an ad hoc Community Development Plan Advisory Committee and partnered with a consultant to develop a plan. After five public workshops held over two years, the Committee released its Swampscott Community Development Plan in 2004. Among its findings, the Plan noted that Swampscott’s aging population would create a demand for smaller, easier-to-maintain housing units. The Plan also found that home prices in the town had risen dramatically while the number of affordable housing units remained far below the state’s goal of 10% affordability.

At about the same time as the release of the Plan, two temple congregations planned to merge and approached the town about buying the building previously occupied by one of them (Temple Israel), which would soon be vacated as a result of the merger. The town formed a committee to explore potential uses of that property, and the committee ultimately recommended it be purchased. The committee also recommended that a new committee be established to review a number of other town-owned properties to determine the best uses for each of those assets. In May 2007, in accordance with that recommendation, town meeting authorized the creation of the Building Study Committee (“BSC”) and charged it with developing a long range plan “for the appropriate use and re-use of all public buildings.”

The BSC’s members were seven Swampscott residents with backgrounds in finance, construction, architecture, engineering and planning. They reviewed 14 town-owned properties, many of which were then under lease agreements or had uses that the BSC determined should not be changed. There were four, however, which the committee thought should be re-used or sold. These included the just-vacated Greenwood parcel, the just-purchased Temple Israel building, a former senior center, and a fire station. The chairwoman of the BSC, Angela Ippolito, described the mission of the BSC as looking at the “short term and long term financial gain to the town [and] what was in the best interest of the community in terms of planning.”

The BSC ruled out commercial and light industrial uses for the Greenwood parcel, focusing instead on residential use. Retention and re-use of the historic core of the school building (the part built in 1893) was “strongly supported” by the BSC. As Ms. Ippolito testified, historic preservation was an essential element of the BSC’s recommendations. On the space freed-up from the demolition of the post-1893 additions, the BSC recommended the construction of a second building that would be of comparable style and size to the 1893 structure. As Ms. Ippolito testified, the BSC’s recommendation for preserving the 1893 portion was rooted in the school’s one hundred year-old history and the fact that generations of people from the town had gone to school there. I credit Ms. Ippolito’s testimony, and find that historic preservation was a critical component of the BSC’s recommendation for the redevelopment of the Greenwood parcel for multi-family use.

The BSC retained Concord Square Planning and Development Inc. to assist in studying the feasibility of redeveloping the Greenwood parcel into multi-family housing. Ted Carman of Concord Square determined, based solely on an analysis of square footage, that a total of 51 units could be built between the retained historic portion of the school building and a new building constructed behind it. No traffic or other neighborhood impact studies were conducted. The BSC adopted the 51 unit recommendation and reported that to town meeting in May 2008. The BSC also recommended that a new committee, the Building Oversight Committee (“BOC”), be established to craft standards and restrictions for the redevelopment of the Greenwood parcel, issuing a request for proposals for its redevelopment, making recommendations for a final sale, developing design guidelines and, if needed, proposing amendments to the town’s zoning bylaw. Town meeting approved the creation of the BOC on May 6, 2008.

Like the BSC, the BOC was composed of seven residents with backgrounds in finance, planning, architecture, and the marketing and sale of real estate. Notice of the BOC’s meetings was posted in accordance with the state’s Open Meeting Law. The BOC began its work by reviewing the recommendations previously made by the BSC, and Mr. Carman of Concord Square continued to provide consulting services. The town’s fiscal situation was never far from anyone’s mind, then or later. At the time of these discussions, the town had passed two Proposition 2 ½ overrides, consolidated town administration, scaled back other services, and reduced course offerings at the high school. State aid had been cut, and has never completely been restored to pre-2008 levels. Some members of the BOC initially supported construction of a high-rise building between 8 and 10 stories tall in order to take advantage of the views of the ocean and generate a higher sale price and increased tax revenues to the town. That view did not prevail however, and instead the BOC developed a new set of requirements intended to guide development. These included a ratio of 2 parking spaces per unit, increased side setbacks of 35 feet, and front and rear set backs of 60 feet. The height of the buildings was set at 60 feet, based solely on the existing height of the 1893 structure. Once again, no traffic or neighborhood impact studies were conducted in connection with these recommendations.

Working within these guidelines for parking, setbacks and height, the BOC revised the number of potential units from the 51 initially proposed by the BSC to 41 units. The BOC considered both a “55 and older” and an affordable housing development as potential uses for the site, but rejected them because such restrictions would lower the expected sale price. The BOC also performed financial projections on other hypothetical development scenarios. One was for 41 units, retaining the historic 1893 school building. Another was a proposal that did not retain that structure and instead consisted of 41 units in two entirely new buildings. The BOC’s analysis showed a slightly higher projected value for the sale of the land and future tax revenues under the latter scenario with the school building demolished. According to the testimony of Jill Sullivan, [Note 6] the BOC believed that a 60 foot height limit for any newly constructed buildings was appropriate because that was the height of the 1893 building and had been “tolerated by the neighborhood” for many years. No study of that issue was done, nor alternative considered. Moreover, in reaching that conclusion, the BOC did not study any differences in impact between a building used only on school days during school hours for school activities, and a residential building occupied 24 hours a day, seven days a week, 365 days a year.

The BOC was split between members who believed the school building had no historic value, those who disagreed and prized its history, and a middle group that wanted to see the kinds of proposals actually submitted before committing to allowing the school building to be demolished. Ultimately this middle way won out. The BOC worked with Concord Square to develop a set of design guidelines that included the requirement that the 1893 portion of the building be retained and renovated, and decided to wait for at least one or two rounds of responses to the RFPs to see if there would be a proposal that could both satisfactorily preserve the school building and meet the town’s revenue projections.

On November 10, 2008, town meeting voted to amend Swampscott’s zoning bylaw by creating four planned development districts (PDDs), including the Greenwood PDD (the rezoning provision at issue). The Greenwood PDD itself makes no mention of historic preservation. Instead, the preservation requirement operated through a more indirect mechanism. Specifically, during the same November 10 town meeting, the town approved Article 6 of the Warrant Report that authorized the Board of Selectmen to sell the Greenwood parcel in accordance with the RFP process set forth in G.L. c. 30B. Under Article 6, the RFP would incorporate the design guidelines drafted by the BOC, which included the historic preservation component, and provide that proposals which complied with those guidelines would be more favorably reviewed by the BOC. See Warrant Report, Article 6, Nov. 10, 2008.

In 2009, the town issued an RFP for the Greenwood parcel. A single response was received from G.V.W. Inc., which proposed the development of an elder living facility. The BOC scored the proposal according to a set of pre-determined criteria that evaluated the qualifications and experience of the developer, the proposal’s responsiveness to the town’s objectives, and the developer’s ability to implement the project. The BOC recommended that the Selectmen reject G.V.W.’s proposal based on concerns about the project’s management team and lack of experience in developing large projects. The Selectmen adopted the BOC’s recommendation and rejected the proposal.

In 2010, the town re-issued the same RFP. This time, it received two responses. The first was the same proposal by G.V.W. that previously had been rejected. The second was from the Stratford Capital Group to construct an affordable rental housing development for the elderly. The BOC recommended that the G.V.W. proposal again be rejected, for the same reasons as before. It also recommended that the Selectmen reject the Stratford proposal because of its low purchase price ($410,000) and minimal projected tax revenue ($20,000-25,000 per year), which the BOC felt did not align with the revenue projections it had presented to town meeting. Thereafter, at the request of the Selectmen, town meeting voted to remove the historic preservation requirement from the design guidelines.

After the preservation requirement was removed, and without even considering the introduction of a special permit requirement to allow the evaluation of neighborhood impacts, the town issued its third RFP. Two proposals were received. The first was from Stratford and virtually identical to its previous proposal, except this time with the purchase price increased to $500,000. The second was from Groom Construction, a firm based in Salem, conditioned on removing all historical restrictions, including complete removal from the jurisdiction of the town’s Historical Committee. Groom proposed to demolish the historic school building and everything else on the site, and then build a new 60-foot high, four story building containing 41 market rate apartment/condominium units of varying sizes. If used as apartments, the expected rents were conservatively projected to be a minimum of $2250 per unit per month. If sold as condominiums, the sale prices were conservatively projected to be at least $300,000 per unit, and likely much more. [Note 7] Groom attached a traffic analysis to its proposal, but that analysis was never subjected to a public hearing or, so far as the record shows, to any real scrutiny by the BOC.

The BOC scored both proposals according to its set of criteria. Their final scores were very close, 58 for the Groom proposal and 58.5 for Stratford’s. The BOC believed both projects had merit, but offered different benefits to the town. The Stratford proposal would create more affordable and elderly housing, while the Groom proposal offered a higher purchase price ($625,000) and significantly higher yearly tax revenues, ranging from a low of $122,000 to a high of over $200,000. The BOC forwarded both proposals to the Board of Selectmen but did not recommend one over the other. The Selectmen chose the Groom proposal, believing it superior to Stratford’s because, according to Ms. Sullivan (a BOC member and Selectman), “it provided better financial benefits to the town.”

From these facts, I find that the town’s objectives in rezoning the Greenwood parcel were initially historic preservation and generating revenue for the town. When historic preservation affected revenue, however, this goal was discarded and the town’s objectives narrowed to one: the maximization of revenue from the parcel’s sale and future tax receipts.

The town concedes that generating revenue was a major purpose behind its decision to rezone the Greenwood parcel. It contends, however, that it had another: the creation of small housing units that would be attractive to the town’s aging population and “empty nesters” seeking to downsize. The evidence in support of this contention, however, is unpersuasive. The BOC never gave any strong consideration to a 55 and older development, and the proposals that would have created such a facility were rejected in favor of ones that produced higher revenues for the town. There are no age or affordability restrictions for any of the 41 units, and no restriction or preference to current town residents. As Mr. Angus Jennings, an associate of Mr. Carman at Concord Square, conceded, those who end up buying and at what prices “will be entirely a function of the market.” Given all this, it cannot rationally be concluded that the development will have a “housing of aging town residents” or “empty nester” effect.

Further facts are discussed below.


As noted above, it is impermissible spot zoning when there is “a singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.” Whittemore v. Bldg. Inspector of Falmouth, 313 Mass. 248 , 249 (1943). See also Smith v. Bd. of Appeals of Salem, 313 Mass. 622 , 624-625 (1943); Leahy v. Inspector of Bldgs, New Bedford, 308 Mass. 128 , 132-134 (1941). [Note 8] A zoning amendment that singles out such a lot for less restrictive treatment may be permissible if it advances the “public welfare” in a land planning context, but is invalid if it does not. See W. R. Grace & Co.-Conn., 56 Mass. App. Ct. at 569-70 (zoning amendments that have substantive relationship to promoting public welfare are not, by definition, spot zoning). Thus, whether the rezoning survives the plaintiffs’ challenge depends on whether the Greenwood PDD advances a permissible public purpose. Although there is a strong presumption in favor of validity, “the applicable principles are of judicial deference and restraint, not abdication.” National Amusements, Inc., 29 Mass. App. Ct at 310.

Historic preservation has long been recognized as a purpose which promotes the public welfare, and thus a valid basis for zoning. See Opinion of the Justices to the Senate, 333 Mass. 773 , 781 (1955) (declaring constitutional a statute designed to protect and preserve historic buildings and districts on Nantucket). Had the Greenwood PDD required the retention of the historic 1893 school building, it might well have survived spot zoning scrutiny. That requirement, however, was removed by the town when it resulted in a lower sale price. The provision of affordable housing is a public purpose. See G.L. c. 40B, §20 et seq. So might be the provision of housing for the elderly, at least if income-based. See G.L. c. 121B, §1; G.L. c. 19A, §11. Neither affordability nor age restrictions, however, are requirements of the Greenwood PDD, nor even a rationally likely consequence (anyone can buy the units, which will go to the highest bidders) and thus cannot serve as justification for the rezoning.

The town contends that promoting “diversity” in housing stock is an allowable public purpose. This is correct if the diversity involves affordable housing. See discussion above. But it is not “diversity” in the required sense if the housing provided, as here, is simply more units for the economically fortunate. Moreover, the Greenwood PDD does not even require the units to be small. They can be any size so long as their total number does not exceed forty-one. The fact that the developer chose forty-one simply reflects its calculation that it can make the most money by constructing that many units.

The issues thus narrow to one. Is a rezoning of a town-owned parcel, solely to raise maximum revenue for the town, an allowable “public purpose” sufficient to remove it from spot zoning? The rezoning was done solely for the economic benefit of the parcel’s owner — the town — and is thus squarely within the definition of spot zoning. See Whittemore, 313 Mass. at 249 (1943); Smith, 313 Mass. at 624-625; Leahy, 308 Mass. at 132-134. The question presented is whether, on the facts of this case, there is a municipal exception to that principle — a different rule when the parcel owner is the municipality itself rather than a private party. The town seeks to raise money from the sale for its general fund. Is that goal enough, untethered from any land planning purpose? I find that it is not. Zoning must be based on permissible land use planning objectives, see National Amusements Inc. 29 Mass. App. Ct. at 313, and “[t]here must be a showing of some substantial relation between the zoning code amendment and the general objectives of the enabling act” id. at 309. Simply raising money for the town’s general fund is not within the objectives of that act, and is thus outside the “public purposes” that zoning contemplates.

The town cites three cases in support of its contention to the contrary, none of which is apposite.

Rando v. Town of North Attleborough, 44 Mass. App. Ct. 603 (1998) involved the rezoning of 37 acres from residential to commercial. The land was along Route 1, a major commercial route, and immediately abutted commercially-zoned land. In contrast, the land at issue here is a small island completely surrounded by one and two family residences, a considerable distance away from any dense developments and particularly susceptible to traffic impacts. The town cites Rando because it also involved the developer making a $260,000 contribution to the municipality. However, unlike here, that money was intended to pay for mitigation, not simply intended for the general fund, [Note 9] and was accompanied by other mitigation measures, including a 14 ½ acre “no build” buffer zone in an area remaining residentially zoned, provision for traffic improvements, and a payment in mitigation of an amount between $400,000 and $450,000 to the Massachusetts Highway Department for roadway improvements. Moreover, as the trial court found, the rezoning served a “proper public goal” because it “concentrated future development [of the commercial area] in a particular area …[on] vacant land adjacent to a commercial district on a main thoroughfare connecting two major metropolitan areas” and could thus “reasonably be viewed as an ‘obvious area’ for the expansion of an existing commercial zone.” Rando, 44 Mass. App. Ct. at 606.

Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 (2004) involved land owned by the Massachusetts Turnpike Authority, fronting on Route 9, outside any zoning district and surrounded by a light manufacturing zone. Boston Properties Inc. proposed to develop it for office, retail and hotel use, and entered into a development covenant with the town under which it agreed to “perform and fund various traffic mitigation measures along Route 9, and to contribute $350,000 to the town to help fund the purchase of open space.” Hanna, 60 Mass. App. Ct. at 421. The zoning was upheld because it “place[d] the locus within the same zoning district as all of the land surrounding it; [and] there [was] accordingly no rational basis on which the plaintiff [could] contend that the map amendment violate[d] the uniformity requirement of G.L. c. 40A, §4. The map amendment allow[ed] the orderly development of the locus for uses compatible with its surrounding commercial area [and] [b]y triggering the effectiveness of the development covenant, the map amendment furnished and funded needed traffic mitigation measures along the congested route 9 corridor and provided funds for the town’s acquisition of open space.” Hanna, 60 Mass. App. Ct. at 426-427. Here, the land was in the center of a highly restricted residential zone and the rezoning produced nothing more than money for the town’s general fund.

The final case, Durand v. IDC Bellingham LLC, 440 Mass. 45 (2003), is again far different, and materially so, from the situation here. The rezoning at issue — of a large parcel abutting land already zoned for industrial use — had previously been identified by the town as a prime area for rezoning to increase the supply of industrial land and thus contribute to economic development. Id. at 46. To increase support for the rezoning, the parcel’s owner agreed to pay the town $8,000,000 — the amount of the town’s shortfall for construction of “a much needed new high school.” Id. at 47. As the trial court found, “there would be little doubt that the 1997 rezoning was valid if the $8 million gift offer had not been made.” Id. at 49. The Supreme Judicial Court agreed. [Note 10] The issue before the Supreme Judicial Court was whether that gift — challenged by the plaintiffs as a “bargaining away” of the town’s police powers —nullified an otherwise valid zoning decision. The SJC ruled that it did not, stating that “[a]t no time before the May 28, 1997, town meeting were the voters of town meeting bound to approve the zoning change. Because the town followed the procedures dictated by [G.L. c.40A] §5, the rezoning was not invalid on statutory grounds.” Id. at 53. As the court noted, “there was no evidence…that the town bargained away its police power in this case. The town merely acted on an offer by IDC; its power to approve or reject the proposed zoning amendment remained unencumbered, as did its power to rezone the property in the future if circumstances made it necessary for the protection of the public health, safety or general welfare to do so.” Id. at 53, n. 15.

In sum, none of these cases, nor any others, stand for the proposition that money generated from the sale of a town-owned parcel, intended solely for the town’s general fund and unrelated to any mitigation for the site, is a sufficient “public purpose” to take a rezoning out of prohibited spot zoning. Indeed, as Durand’s concurrence in result/ dissent in reasoning noted, “[c]onsiderations that are unrelated to the impacts of a proposed development are ‘extraneous’ and may not provide the basis needed to justify an exercise of the police power.” Id. at 61 (concurrence in result/ dissent in reasoning of Justices Spina, Ireland and Cowin). The sole purpose of generating revenue, while at the same time ignoring long-held principles of zoning uniformity, does not promote the public welfare and cannot be a legitimate exercise of the town’s zoning power. See Lanner v. Bd. of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964) (“the amending power may not be invoked solely to confer an economic benefit upon the owner of a comparatively small area within an essentially residential district.”).


For the foregoing reasons, I find and rule that the Greenwood Planned Development District constitutes impermissible spot zoning. The portions of the zoning amendment that establish the Greenwood PDD are hereby declared INVALID and are STRICKEN from the zoning bylaw. [Note 11]

Judgment shall enter accordingly.


[Note 1] Historic preservation is a valid basis for zoning, see Opinion of the Justices, 333 Mass. 773 , 781 (1955) (discussed below).

[Note 2] See Durand v. IDC Bellingham LLC, 440 Mass. 45 , 51-52 (2003) (zoning is a legislative act; analysis of its validity is thus “not affected by consideration of the various possible motives that may have inspired [it]”).

[Note 3] A group residence is defined in the zoning bylaw as “A premise licensed by or operated by an agency of the Commonwealth of Massachusetts as set forth in the State Building Code housing not more than twenty-five (25) unrelated persons, sixteen (16) years of age or older.” See Town of Swampscott Zoning By-law, Art. VI.

[Note 4] Even municipal facilities and essential services require a special permit..

[Note 5] Later additions were built in 1915 and in either 1936 or 1940. Only the 1893 portion has architectural and historic significance.

[Note 6] Ms. Sullivan was both a BOC member and a town Selectman.

[Note 7] The BOC’s consultant, Mr. Carman, visited what he considered to be a similar development in Marblehead, where even smaller units sold for between $450,000 and $600,000.

[Note 8] Spot zoning is invalid because it violates the uniformity requirement of the Zoning Act, G.L. c. 40A, §4 (“Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted”). See SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 106 (1984) (uniformity requirement based on principle that similarly situated land should be treated alike, and this principle acts as limit on municipal zoning power).

[Note 9] As the Appeals Court noted, the payment was “reasonably intended to meet public needs arising out of the proposed development.” Rando, 44 Mass. App. Ct. at 609.

[Note 10] As the SJC noted, “[t]he judge ruled that absent the $8 million offer, the rezoning was substantively valid. We take that to mean that it was neither arbitrary nor unreasonable, and was substantially related to the public health, safety, or general welfare of the town. In other words, its adoption served a valid public purpose. The record fully supports this conclusion. The locus abutted land zoned for industrial use; a town-appointed task force (preceding and completely unrelated to the power plant development development proposal) had recommended its rezoning after studying the town’s tax base and the need for economic development; and a previous rezoning attempt based on that recommendation had just barely failed to get the necessary two-thirds majority at the 1995 town meeting.” Id. at 56.

[Note 11] I make no ruling on the three other planned development districts that were created by the zoning amendment as they were not at issue in this case.