PRIMROSE SCHOOL FRANCHISING CO. and JOYCE WENDLER, Executrix of the Estate of Helen L. Naylor and Heir under the Will of Helen L. Naylor vs. TOWN OF NATICK; MICHAEL J. HICKEY, JR., SCOTT W. LANDGREN, ROBERT E. HAVENER, PAUL T. MULKERRON, and KATHRYN M. COUGHLIN, Memebers of the Zoning Board of Appeals of the Town of Natick.

The above-captioned actions represent a dispute as to a proposal (the “Project”) of Case 1 Plaintiffs Primrose School Franchising Company (“Primrose”) and Joyce Wendler, Executrix of the Estate of Helen L. Naylor and Heir under the Will of Helen L. Naylor (“Wendler”) [Note 1] (together, the “Developers”) to construct a child care facility (the “Facility”) in Natick, Massachusetts.

The Developers commenced Case 1 against Defendants (in both Case 1 and Case 2) Town of Natick (the “Town”) and Members of the Zoning Board of Appeals of the Town of Natick (the “ZBA”) (together, “Defendants”)) by filing an unverified complaint on February 10, 2012, by which they sought (a) a determination, pursuant to G. L. c. 240, § 14A, as to the validity of certain provisions of the Town’s Zoning Bylaws (the “Bylaws”), and as to the extent to which such provisions affect the construction of the Facility; and (b) to appeal, pursuant to G.L. c. 40A, § 17, a decision (“ZBA Decision 1”) of the ZBA dated December 12, 2011, which had denied the Developers’ application for three special permits (the “Special Permits”) [Note 2] and their request for a finding pursuant to G.L. c. 40A, § 6 (the “Section 6 Finding”) that the Facility could be constructed as a conforming building on a non-conforming lot. [Note 3] A case management conference in Case 1 was held on March 5, 2012. On August 23, 2012, the Abutters filed a motion to intervene in Case 1, which was denied by order dated August 31, 2012.

On October 1, 2012, the Developers moved for summary judgment in Case 1, which was supported by a memorandum of law and affidavit of Curt Van Emon (business consultant). Defendants filed their opposition to the Developers’ motion on November 1, 2012, which was supported by a memorandum of law, affidavit of Patrick Reffett (“Reffett”) (the Town’s Community Development Director), and correspondence from Natick residents. On November 13, 2012, the Developers filed their reply memorandum, and on November 20, 2012, Defendants filed a supplementary opposition brief. On December 3, 2012, the Developers filed a motion to strike Paragraphs 6-17 of Reffett’s affidavit, as well as the Communications. On January 25, 2013, Defendants filed their opposition this motion to strike. A hearing on both motions was held on January 30, 2013, and, at that time the matter was taken under advisement.

By decision dated June 17, 2013 (“Land Court Decision 1"), this court held as follows:

(a) that the Bylaws may require a special permit for construction of the Facility within the RSAD;

(b) that the Bylaws may require a special permit for construction of the Facility within the APD;

(c) that the Bylaws may require a special permit for construction of the Sign;

(d) that frontage and lot width requirements, as they relate to traffic and access concerns, are reasonable regulations, as applied to the Facility;

(e) that the Facility may be subject to a finding, pursuant to G. L. c. 40A, § 6 and Section V.2 of the Bylaws, that it will not be substantially more detrimental than the existing structure, but that such a finding must be applied reasonably; and,

(f) that the ZBA could not outright deny the proposed use in the Facility, but that the ZBA could apply reasonable conditions to such use.

Accordingly, the court remanded the issue of the Special Permits to the ZBA for a new hearing consistent with Land Court Decision 1.

Following the remand of Case 1 to the ZBA, on November 18, 2013, the ZBA voted (“ZBA Decision 2") to grant the Special Permits, subject to fifteen conditions. In response, the Developers filed an unverified second amended complaint in Case 1 on January 7, 2014, by which they sought, pursuant to G. L. c. 240, § 14A, G.L. c. 40A, § 17, and G. L. c. 185, §§ 1(p), 1 (j ½), (a) a judicial determination with respect to certain provisions of the Bylaws, and (b) to appeal ZBA Decision 2.

After ZBA Decision 2 was issued, two local abutters (Case 2 Plaintiffs David F. Porter (“David”) and Elizabeth M. Porter (together, the “Abutters”)) commenced Case 2 by filing an unverified complaint on January 8, 2014, by which they also sought to appeal ZBA Decision 2 pursuant to G. L. c. 40A, § 17. By this appeal, the Abutters sought not to prevent the commencement of the Project entirely, but rather to object to the alleged laxness of the conditions imposed on the Project pursuant to ZBA Decision 2. On January 27, 2014, the Developers moved to intervene in Case 2 and to consolidate Cases 1 and 2, which motion was allowed by order dated February 20, 2014.

On July 31, 2014, the Developers filed a motion for summary judgment in both Case 1 and Case 2, which was supported by a memorandum of law and a transcript of David’s deposition testimony. On August 20, 2014, the Abutters filed their opposition to the Developers’ summary judgment motion. On August 29, 2014, Defendants filed their own opposition to the Developers’ motion, as well as a cross-motion for summary judgment, which was supported by a memorandum of law and affidavits of Reffet and Kien Y. Ho, P.E. (“Ho”) (an engineer with Beta Group, Inc.). On September 15, 2014, the Developers filed their reply brief on the motions for summary judgment. A hearing was held on both motions was held on October 23, 2014, and both motions were taken under advisement at that time.

The court has issued a decision (“Land Court Decision 2”) as of today’s date. In accordance with Land Court Decisions 1 and 2, it is hereby:

ORDERED and ADJUDGED that the Bylaws may require a special permit for construction of the Facility within the RSAD;

ORDERED and ADJUDGED that the Bylaws may require a special permit for construction of the Facility within the APD;

ORDERED and ADJUDGED that the Bylaws may require a special permit for construction of the Sign;

ORDERED and ADJUDGED that frontage and lot width requirements, as they relate to traffic and access concerns, are reasonable regulations, as applied to the Facility;

ORDERED and ADJUDGED that the Facility may be subject to a finding, pursuant to G. L. c. 40A, § 6 and Section V.2 of the Bylaws, that it will not be substantially more detrimental than the existing structure, but that such a finding must be applied reasonably; and,

ORDERED and ADJUDGED that the ZBA could not outright deny the proposed use in the Facility, but that the ZBA could apply reasonable conditions to such use; and,

ORDERED and ADJUDGED that, as amended (see, infra, n. 5), Condition 3 [Note 4] is reasonable [Note 5]; and,

ORDERED and ADJUDGED that Condition 4 [Note 6] is unreasonable to the extent that it purports to condition approval of the Project upon a cap in the maximum number of enrollees in the Facility; and,

ORDERED and ADJUDGED that Condition 15 [Note 7] is void for vagueness and is therefore unreasonable; and,

ORDERED and ADJUDGED that the Abutters are “part[ies] in interest” under G.L. c. 40A, § 17, and therefore are entitled to a presumption of standing in Case 2; and,

ORDERED and ADJUDGED that the Developers have rebutted the Abutters’ presumption of standing; and,

ORDERED and ADJUDGED that the Abutters have failed to demonstrate that they have standing on the basis of the potential traffic impact of the Project on their specific property [Note 8]; and,

ORDERED and ADJUDGED that the Abutters have failed to demonstrate that they have standing on the basis of the potential noise of the Project on their specific property; and,

ORDERED and ADJUDGED that the Abutters have failed to demonstrate that they have standing on the basis of the potential artificial light from the Sign on their specific property; and,

ORDERED and ADJUDGED that because the Abutters have failed to demonstrate harms relating to all three of the harms they claimed (i.e., traffic, noise, and artificial light), the Abutters lack standing to appeal ZBA Decision 2; and,

ORDERED and ADJUDGED that the Developers’ motion for summary judgment is hereby ALLOWED to the extent (a) that ZBA Decision 2 is overturned insofar as it imposed the portion of Condition 4 purporting to cap enrollment at the Facility and Condition 15, and (b) that the Abutters lack standing in Case 2; and,

ORDERED and ADJUDGED that Case 2, is hereby DISMISSED, with prejudice; and,

ORDERED and ADJUDGED that Defendants’ cross-motion for summary judgment is ALLOWED solely to the extent that Condition 3 in ZBA Decision 2 is upheld, as amended.

By the court.