In this action, Plaintiffs challenge a zoning amendment (Amendment) adopted by the Town of Milton concerning landscaping businesses within its borders. The Amendment adds a new section to the Milton Zoning Bylaws (Bylaws) granting landscaping businesses meeting certain requirements the right to apply for a special permit to conduct landscaping services incidental to their nursery businesses. Defendant Thayer Nursery Corporation (Thayer) qualifies as such a business and has applied for a special permit under the Amendment. Plaintiffs are abutters to Thayer's property, located in a residential zoning district.
In Count I, Plaintiffs allege, pursuant to G. L. c. 240 § 14A, the Amendment is invalid because it constitutes spot zoning and violates the uniformity provisions set forth in Section 4 of The Zoning Act. In Count II, Plaintiffs seek declaratory relief under G. L. c. 231A that the Amendment is null and void. [Note 1] On June 18, 2015, the court heard arguments on motions for summary judgment filed by Plaintiffs and the municipal Defendants, and a decision of todays date in favor of Defendants has issued. In accordance with that decision, it is hereby
ADJUDGED and ORDERED that Plaintiffs Motion for Summary Judgment is DENIED and the Milton Defendants Cross-Motion for Summary Judgment is GRANTED; it is further
ADJUDGED and DECLARED that the Amendment does not violate the uniformity provisions of G. L. c. 40A, § 4, and is a valid Amendment to the Bylaws; and it is further
ADJUDGED and ORDERED that Plaintiffs Complaint is DISMISSED with prejudice.
By the Court.
PHILIP JOHENNING and JOHN S. ROWE v. TOWN OF MILTON, JOSEPH PRONDAK, in his capacity as BUILDING INSPECTOR for the TOWN OF MILTON, THE PLANNING BOARD for the TOWN OF MILTON, ALEXANDER WHITESIDE, EMILY KEYES INNES, EDWARD L. DUFFY, BRYAN FURZE and MICHAEL E. KELLY, as they are MEMBERS of the PLANNING BOARD for the TOWN OF MILTON, F. JOSHUA OLDFIELD, MARGARET T. OLDFIELD A/K/A MARGARET T. LAING and THAYER NURSERY CORPORATION.