SEAN BURKE, RITA BURKE, SHARON WIEZENBAUM, AMY AUSLANDER HIRSCH, as Trustee of the AMY AUSLANDER HIRSCH REVOCABLE TRUST, and BARBARA C. FORD, as Trustee of the BARBARA C. FORD REVOCABLE TRUST v. TOWN OF AMHERST, BUILDING COMMISSIONER OF AMHERST, W.D. COWLS, INC. LAND COMPANY, and LANDMARK PROPERTIES.

Among other real estate holdings, defendant W.D. Cowls, Inc. (Cowls) owns a 154-acre parcel in the north of Amherst (property). In 2013, Cowls entered a purchase and sale agreement with defendant Landmark Properties (Landmark) for the sale of the property. Landmark proposed to build a development of single and two-family homes under the Town of Amherst’s cluster development zoning bylaw, which would be marketed and rented to students at the University of Massachusetts, Amherst College, and Hampshire College. Before Landmark applied for any of the required permits or approvals under the zoning bylaw, plaintiffs Sean Burke, Rita Burke, Sharon Wiezenbaum, Amy Auslander Hirsch as Trustee of the Amy Auslander Hirsch Revocable Trust, and Barbara C. Ford, as Trustee of the Barbara C. Ford Revocable Trust, all individual landowners abutting or near the property, filed this action. Their complaint, filed on July 29, 2013, names as defendants the Town of Amherst, the Town of Amherst Building Commissioner (together, the Town), Cowls, and Landmark. The complaint consists of three counts under G.L. c. 240, § 14A, for a determination of the application of the Town of Amherst Zoning By-Law (bylaw) to Landmark’s proposed cluster development. Count One seeks a declaration that Landmark’s proposed project is a “fraternity or sorority building, social dormitory, or similar use related to Amherst College, Hampshire College, or the University of Massachusetts,” a use not permitted in the R-O District in which the property lies. Count Two seeks a declaration that Landmark’s proposed development does not qualify as a cluster development under § 4.3 of the bylaw. Count Three seeks a declaration that Landmark’s proposed amenities to the project are not “lawful accessory buildings” allowed in a cluster development under the bylaw.

Cowls and Landmark filed their Answer and Affirmative Defenses on October 21, 2013. The case management conference was held on November 5, 2013. The Town filed its Answer on November 18, 2013. On February 12, 2014, Cowls and Landmark, with the assent of all parties, filed their First Amended Answer. On June 5, 2014, the court allowed, without opposition, Cowls’s and Landmark’s motion to amend their answer by adding a cross-claim under G.L. c. 240, § 14A against the Town. Cowls and Landmark filed their cross-claim on June 9, 2014. The cross-claim seeks a declaration that certain minimum lot-size requirements of the bylaw do not apply to a cluster development of the property. On June 25, 2014, the court allowed, without opposition, the plaintiffs’ motion to amend their complaint. The first amended complaint adds a Count Four, seeking a declaration under G.L. c. 250, § 14A, that the construction of duplex townhouses at the property would require a special permit under § 3.321 of the bylaw.

The parties engaged in extensive discovery. On July 28, 2014, Cowls and Landmark, and the Town, each filed motions for summary judgment with supporting memoranda and affidavits. The plaintiffs filed their opposition and cross-motion for summary judgment on September 2, 2014, with the other parties filing oppositions and responses in turn. As part of this briefing, the Town disclosed that on September 5, 2014, Landmark, having moved forward with the permitting process for a cluster development at the property, had informed the Town that it now withdrew its application.

The court heard the cross-motions for summary judgment on September 24, 2014. The court heard argument on the portion of the cross-motions directed to Count Four of the amended complaint, regarding the necessity for a special permit for duplex townhouses, and the cross- claim, regarding the minimum lot-size requirement for a cluster development at the property, and took those portions of the cross-motions under advisement. The court questioned the continued need for a decision on Counts One through Three of the amended complaint in light of Landmark’s withdrawal of its proposed development of the property. The plaintiffs then moved in open court to dismiss Counts One through Three without prejudice (Motion to Dismiss), and the Town joined the motion. Cowls and Landmark opposed the Motion to Dismiss, and moved in open court to amend their cross-claim to add the claims stated in Counts One through Three of the amended complaint as cross-claims against the Town (Motion to Amend). The plaintiffs and the Town opposed the Motion to Amend. The parties were ordered to submit memoranda of law on the Motion to Dismiss and the Motion to Amend, and Cowls and Landmark were instructed to submit an affidavit from Landmark regarding its interest with respect to the property after resolution of the plaintiffs’ claims. On October 8, 2014, Cowls and Landmark submitted their memorandum and the Affidavit of Cinda Jones, the president of Cowls (Jones Affidavit). In their memorandum, Cowls and Landmark assented to the dismissal without prejudice of Count Three of the amended complaint (the Count directed to the amenities). They did not submit an affidavit from Landmark. The plaintiffs and the Town each filed their respective memoranda on October 15, 2014. Pursuant to Land Court Rule 6, the court decides the Motion to Dismiss and the Motion to Amend without hearing.

The plaintiffs no longer wish to pursue Counts One through Three of their amended complaint. Cowls, Landmark, and the Town have assented to the dismissal of Count Three without prejudice. The plaintiffs should be entitled to dismiss Counts One and Two of the amended complaint; Cowls and Landmark can only pursue the § 14A claims set forth in Counts One and Two if they are allowed to bring these claims against the Town as cross-claims. Thus, the more relevant motion before the court is the Motion to Amend. If that motion is allowed, then there is no reason to dismiss Counts One and Two of the amended complaint, as those claims will go forward anyway; if it is denied, then the Motion to Dismiss will be allowed. The Motion to Amend is governed by Rule 15 of the Massachusetts Rules of Civil Procedure, which provides that leave to amend “shall be freely given when justice so requires.” Mass. R. Civ. P. 15(a). The granting of leave to amend lies within the discretion of the trial court, and leave to amend should be denied only if the amendment would, for example, be against the public interest, result in undue delay, or be futile. Mathis v. Massachusetts Elec. Co., 409 Mass. 256 , 264-265 (1991); Goulet v. Whitin Machine Works, Inc., 399 Mass. 547 , 549-550 (1987); Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84 , 87-88 (1987).

The issue raised by the Motion to Amend is whether Counts One and Two, which Cowls and Landmark seek to assert as cross-claims against the Town, are futile because they are directed to a proposed development that Landmark has withdrawn and given no indication that it intends to renew. Cowls and Landmark argue that Cowls has a broad right as a landowner to seek a determination under § 14A as to how the bylaw applies to a proposed use of or project on the property. As a general statement, this is correct. Section 14A provides that the “owner of a freehold estate in possession in land may bring a petition in the land court against a . . . town wherein such land is situated . . . for determination of the extent to which any . . . by-law . . . affects a proposed use, enjoyment, improvement or development of such land.” G.L. c. 240, §14A. Moreover, the right to bring such a petition “shall not be affected by the fact that no permit or license to erect structures . . . has been applied for.” Id. Indeed, a landowner may even bring a §14A claim to determine the effect of a zoning bylaw on a proposed use that has since been discontinued but could be restarted in the future. Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292 , 296-297 (2004); see Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748 , 753-754 (2002). On the other hand, § 14A claims regarding entirely theoretical uses may “unduly burden” the Land Court, Hansen & Donahue, Inc., 61 Mass. App. Ct. at 296, and should not go forward.

In the Jones Affidavit, Ms. Jones states that Cowls seeks a determination whether, under the bylaw, “a developer can build a cluster development of single family homes located in the Amherst R-O (Outlying Residence) Zoning District, (any district for that matter, except one that permits dorms, fraternities or sororities) and then market and lease these properties primarily to students.” Jones Aff. ¶ 3. This may be an appropriate question to be determined in a proceeding under § 14A. It is not, however, the question that Cowls and Landmark seek to put before the court in the Motion to Amend. In the Motion to Amend, Cowls and Landmark state that they wish the court to adjudicate under § 14A the following questions raised by Counts One and Two of the amended complaint:

COUNT ONE

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22. Landmark’s proposed student housing community is a “fraternity or sorority building, social dormitory or similar use related to Amherst College, Hampshire College, or the University of Massachusetts.”

WHEREFORE, plaintiffs seek a declaration that Landmark’s proposed student housing community is not an allowed use in the R-O District and an order to the Building Commissioner not to issue any building permit or certificate of occupancy for the Subject Property.

COUNT TWO

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24. Section 4.3 is silent as to whether a student housing community may qualify as a Cluster Development.

WHEREFORE, plaintiffs seek a declaration that Landmark’s proposed student housing community does not qualify as a Cluster Development under Section 4.3 of the Amherst Zoning By-Law.

These questions are not general questions about whether the bylaw permits the development of a cluster that is marketed primarily to students. They are questions about whether Landmark’s specific proposal, which it has withdrawn, is permitted by the bylaw. As can be seen by the evidence that the plaintiffs submitted in support of their summary judgment motion, those questions turn on very specific facts about Landmark’s marketing strategy, the form of its lease agreements, the tenant composition of its other projects, the deposition testimony of its Mass. R. Civ. P. 30(b)(6) witness, and the contents of its since-withdrawn definitive plan. Any answer to the question of whether the Landmark proposal is permissible under the bylaw would have to be based on the specific details of Landmark’s plan and Landmark’s own business plan. A judgment determining that question would have a binding effect only on Landmark’s proposal, which no longer exists, and which, given Landmark’s failure to submit the requested affidavit regarding its future plans, appears will not be renewed. In this way, the question of the bylaw’s application to Landmark’s proposal is not like the issue in Hansen & Donahue, Inc. concerning whether an ambulance service was an allowed use. In that case, even though the previous ambulance service on the subject site had been discontinued, another ambulance service was free to make the same use of the site. Thus, a § 14A determination about an ambulance service use on the site could be binding and provide guidance for future users of the site. Hansen & Donahue, Inc., 61 Mass. App. Ct. at 296-297.

Here, on the other hand, a § 14A judgment on Landmark’s proposed use would be so specific to the details of that proposal that it would not bind any other proposal for housing on the property marketed primarily to students. The § 14A judgment that Cowls and Landmark seek to put before the court in the Motion to Amend would be purely theoretical, applying only to a project that no longer exists, and would say nothing about a future project on the Property. There is no reason to amend the cross-claim to allow Cowls and Landmark to pursue the answer to this question.

In other words, there is no longer “a proposed use, enjoyment, improvement or development” of the property on which the court can adjudicate the effect of the bylaw. G.L. c. 240, § 14A. As a result, the claims in Counts One and Two of the amended complaint, which Cowls and Landmark seek to add to their cross-claim in the Motion to Amend, are moot and therefore futile. The Motion to Amend is DENIED. The Motion to Dismiss is ALLOWED.

Counts One, Two, and Three of the amended complaint are hereby DISMISSED WITHOUT PREJUDICE.

SO ORDERED