MARIA E. TYMOCZKO, ET AL., v. THREE COUNTY FAIRGROUNDS REDEVELOPMENT CORPORATION; HAMPSHIRE FRANKLIN AND HAMPDEN AGRICULTURAL SOCIETY; and CITY OF NORTHAMPTON.

In this case and two related cases, the plaintiff, Maria F. Tymoczko, originally sought to challenge the construction of three new barns on the property of the Three County Fairgrounds in Northampton. The plaintiff also sought to challenge other planned future redevelopment of the Fairgrounds property. Following the denial of summary judgment with respect to the earlier iteration of this action, the court, (Grossman, J.) allowed the filing of an “Amended and Supplemented Complaint” in this action to recast the claim (now including other plaintiffs) as one for a declaratory judgment pursuant to G. L. c. 240, §14A seeking a determination only that the defendants’ proposed future redevelopment of the Fairgrounds property will require a special permit under the provisions of the Northampton Zoning Ordinance. The construction of the three buildings originally challenged having gone forward to completion, the parties have agreed to the dismissal of the two related cases. The parties have submitted “Revised” Cross-Motions for Summary Judgment with respect to the remaining aspects of the case, pertaining only to the proposed future development of the defendants’ property. For the reasons stated below, summary judgment is ALLOWED for the defendants, and against the plaintiffs, dismissing the amended complaint.

FACTS

The material undisputed facts pertinent to these motions for summary judgment are as follows:

THE PARTIES

1. Of the thirty-one plaintiffs named in the amended complaint, there is agreement between the parties that four of the named plaintiffs, Nancy and William Blizniak, Charles Jasinski, and Lawrence H. Tatro, own property that abuts property of the defendant Hampshire, Franklin and Hampden Agricultural Society. There is a dispute whether the original plaintiff, Maria F. Tymoczko, is an abutter. Plaintiffs Joel Nisson and Julie Robbins, Frederick s. Zimnoch, and Jessica Morgan and Judith Shaffer, are abutters to abutters. The remaining plaintiffs are neither abutters nor abutters to abutters but claim to be affected by the proposed development of the defendants’ property by reason of traffic and drainage issues.

2. Defendant Hampshire Franklin and Hampden Agricultural Society (“Society”) is a nonprofit entity incorporated by an act of the Massachusetts legislature in 1818. [Note 1] The Society owns approximately sixty acres of land in Northampton, assessed as nine separate tax parcels. The Society’s property is known as the “Three County Fairgrounds.” (the “Fairgrounds”)

3. Three County Fairgrounds Redevelopment Corporation (“Redevelopment Corp.”) is a Massachusetts nonprofit corporation that serves as an operating entity for the Society. The main purpose of the Redevelopment Corp., which was incorporated in 2007, is to facilitate the redevelopment of the facilities at the Fairgrounds. The Redevelopment Corp. and the Society are hereinafter sometimes referred to collectively as the “Fair”.

THE FAIRGROUNDS PROPERTY

4. The Fair operates the oldest continuously operating agricultural fair in the United States, known as the “Three County Fair”, at the Fairgrounds. The Three County Fair predates zoning in Northampton. The Fair’s stated mission is “[T]o promote agricultural education and agricultural science in the Commonwealth.”

5. Historically, uses of the Fairgrounds included pari-mutuel horse racing, but in more recent years, the use of the Fairgrounds has annually consisted of 14 to 16 horse shows, three or four “consumer shows”, including a “tree and shrub” show, and a “Pride Day” event, one or two concerts and arts festivals, and 4-H Club meetings. The largest horse show at the Fairgrounds, the Morgan horse show, which has been held at the Fairgrounds for more than seventy-five years, brings approximately 1000 horses to the Fairgrounds with thousands of competitors. Other horse shows at the Fairgrounds range in size from one hundred fifty to five hundred horses.

6. Agricultural shows at the Fairgrounds include competitions in which farm animals are exhibited and judged, and there are presentations with respect to the breeding and raising of domestic farm animals. There is some farming of hay on one of the Fair’s parcels.

7. The Fairgrounds are located in a Special Conservancy Zoning District under the Northampton Zoning Ordinance. (the “Ordinance”) In a Special Conservancy Zoning District, the following use is allowed upon issuance of a special permit by the Planning Board:

Agricultural fair and/or exhibition grounds operated either for profit or not for profit, to promote agricultural activities, or including, but not limited to, any of the following uses: entertainment, amusement, sports, recreation, racing, wagering including “simulcasting” associated with approved race track activities, storage and handling of animals, judging, showing and auctioning of animals, consumer trade shows, overnight camping related to authorized events or exhibitions. No other gaming/gambling activities allowed.

PROPOSED REDEVELOPMENT OF THE FAIRGROUNDS

8. In 2008, the Redevelopment Corp. completed a master plan for the proposed redevelopment of the Fairgrounds, to be completed in four phases.

9. In or about August, 2010, the Fair released to the public a brochure entitled, “A New Vision for Northampton’s Three County Fairgrounds”, summarizing and describing the proposed phased redevelopment of the Fairgrounds. The brochure, which appears to be a printout of a PowerPoint presentation, describes the proposed phases, uses, expected benefits, and expected development costs in general terms, and the “master plan” is presented as three schematic site plans showing only the outline and proposed designations of proposed buildings and facilities (such as “gate structure”, “grandstand”, “show ring”, “multipurpose livestock building”, etc), with no scale, existing or proposed grades or other topography, dimensions, utility or drainage plans, landscape plans, building elevations or floor plans, or other features that would be necessary for submission of applications for actual development permits.

10. The brochure, under the heading “strategic objectives”, includes the objectives of retaining the existing events that are at risk due to sub-standard facilities, retaining the facility’s agricultural heritage, responding to the “shift in demand towards consumer and non-agricultural events”, and increasing visitation to the “Northampton area”. There is also a description of the intent to substantially increase the number of events held at the facility, the number of days the facility is used, and the annual attendance at the facility. There is no description in the brochure, or elsewhere in the record, of any specific uses proposed for the redeveloped facility, other than the general reference to support for an increase in unspecified “consumer and non-agricultural events”.

11. As described in the brochure, the master plan proposed the physical redevelopment of the Fairgrounds in four phases:

a. Phase 1, replacement of the existing barns with three new horse barns, at a cost of just under $4,000,000;

b. Phase 2, construction of an 80,000 square foot exhibition building, renovation of an existing arena, unspecified landscaping and off-site roadway improvements, at a cost of approximately $26,500,000;

c. Phase 3, construction of a covered show ring, site entries, other show rings, grand stand and other site improvements, at a cost of approximately $7,900,000; and

d. Phase 4, construction of an additional show ring, a livestock building, and other unspecified site improvements, at a cost of approximately $4,300,000.

COMPLETION OF PHASE ONE OF THE REDEVELOPMENT

12. Beginning in 2009, the Fair began applying for the permits necessary to construct “Phase 1” of the proposed redevelopment plan for the Fairgrounds, in which fifteen barns containing a total of 550 horse stalls would be razed, and would be replaced, in a different location on the Fairgrounds, with three new barns, each containing 100 stalls, for a total of 300 new stalls. Also, two existing show rings located in the proposed location of the new barns would be relocated to new locations on the Fairgrounds.

13. The Fair filed an Environmental Notification Form, upon the basis of which a certificate was issued providing that no Environmental Impact Report would need to be filed under the Massachusetts Environmental Policy Act. On April 5, 2010, the Northampton Conservation Commission issued an Order of Conditions authorizing Phase 1 to go forward, but providing that approval of future phases would be dependent on future off-site drainage improvements. [Note 2] A stormwater permit for Phase 1 only, was issued by the Northampton Department of Public Works on March 25, 2010.

14. Funding for Phase 1 was provided by a $4,000,000 grant from the Massachusetts Department of Agricultural Resources, announced in September, 2010.

15. On September 10, 2010, in response to building permit applications by the Fair to implement the construction of Phase I, the Northampton building commissioner ruled that the Fair would need to obtain a finding from the Zoning Board of Appeals (“Zoning Board”) pursuant to Section 9.3 of the Northampton Zoning Ordinance (the “Ordinance”) and G. L. c. 40A, §6, for a change in a nonconforming use, and site plan approval for a “Major Project” from the Planning Board pursuant to Section 11.3 of the Ordinance.

16. By a decision dated November 10, 2010, the Zoning Board issued a finding authorizing Phase 1 as a change in a lawful prior nonconforming use.

17. By a decision also dated November 10, 2010, the Planning Board granted site plan approval with conditions for Phase 1.

18. Notwithstanding pending appeals by the plaintiff Maria F. Tymoczko, the Fair, pursuant to the approvals by the Zoning Board and Planning Board, constructed Phase 1, including the razing of the old barns, the construction of three new barns, and the relocation of the show rings. [Note 3]

STATUS OF FUTURE PHASES OF REDEVELOPMENT

19. The Fair has not prepared for submission for permits, nor has it submitted, any plans or applications necessary for the construction of Phases 2, 3 or 4 as described generally in the master plan as shown in the brochure.

20. The Fair has not prepared for submission, nor has it submitted, any plans or proposals for off-site drainage improvements as required by the Northampton Department of Public Works in February, 2010 in connection with future phases of development at the Fairgrounds, and as required by the Northampton Conservation Commission in its Order of Conditions for Phase 1.

21. There is no funding in place for the construction of any of the additional phases, and “only …Phase 1 has been the subject of an application to (the office of the Northampton building commissioner).” [Note 4]

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., supra, 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This case is in the unusual procedural posture of starting out as one type of claim and ending up as another. Following Judge Grossman’s determination that summary judgment, as originally sought, was inappropriate, with his corresponding allowance of the original plaintiff’s motion to amend the complaint, this case is no longer a challenge to the already-completed construction under Phase 1 of the Fair’s redevelopment plan. It is now a challenge solely of the future phases of the redevelopment, as outlined in a master plan described in a thin brochure relied on by the plaintiffs, and which the defendants point out is not only far from written in stone, but is not the subject of any applications, is not fleshed out with anything more than the barest schematic plans, does not describe the specific uses proposed to be made of the site, is not funded, and which may never be applied for or built, and if applied for, may take any number of different forms by the time it is permitted and funded. Furthermore, current approvals provide that any future approvals are dependent on unspecified offsite improvements to drainage systems that have themselves not yet been designed, applied for, approved, or funded.

With the background of the sparse picture presented of proposed future development at the Fairgrounds, the plaintiffs seek a determination that the future phases of the redevelopment of the Fairgrounds will require the issuance of a special permit under the Ordinance, instead of a G. L. c. 40A, §6 finding with respect to a change in a nonconforming use as was granted for the construction of Phase 1. The defendants counter, among other arguments, that the longstanding use of the Fairgrounds is an agricultural and educational use exempt from regulation pursuant to G. L. c. 40A, §3, and to the extent it is not an exempt use, it is certainly a lawful prior nonconforming use, as the building commissioner and the Zoning Board ruled in addressing the application for Phase 1.

However, the court cannot reach any of these issues unless and until the court can determine with sufficient specificity the nature of the buildings proposed to be constructed, their intended uses, and has satisfied itself that the determination sought by the plaintiffs is not an advisory opinion to be issued with respect only to a use that is, if not entirely speculative, then at least not so uncertain as to be properly viewed as more theoretical than real.

G. L. c. 240, §14A permits “the owner of a freehold estate” to obtain a judgment from the Land Court as to the validity of a municipal zoning ordinance or bylaw or as to the extent to which the land of the owner is affected by a proposed use or development of such land. [Note 5] Although Section 14A appears to be primarily for the benefit of a landowner seeking a determination of the effect of a zoning provision on his or her own land, where a sufficient direct effect is shown, a landowner may obtain such a judgment with respect to the proposed use of the land of another. This use of the statute is more limited than that afforded to a landowner seeking a determination with respect to his own land. “A landowner may also petition under § 14A concerning land other than his own in the limited circumstances where the proposed use on that other land has a direct effect on his.” Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748 , 753-754 (2002). Section 14A “authorizes a petition by a landowner on whose land there is a direct effect of the zoning enactment through the permitted use of other land.” Harrison v. Braintree, 355 Mass. 651 , 655 (1969). However, the use of Section 14A generally may not be sanctioned as a way to avoid exhaustion of administrative remedies that are otherwise available. See Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 , 762-763 (section may not be used to “sidestep an appeal”); and Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 , 212 (1985) (“Exhaustion is the normal rule and exceptions to it are not to be readily invited.”).

More importantly for the present case, a Section 14A action may not be used as a preemptive attack on uses that are not the subject of an application or permit where there is an insufficient likelihood that the uses complained of will actually come to fruition and details of the proposed use have not been specified. “[T]he allowance of preemptive attacks by abutters against theoretical uses would unduly burden both land owners and the Land Court.” Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292 , 296 (2004). The use of Section 14A must be with respect to a question of “the validity or invalidity of a zoning restriction applicable to a specific lot or use.” Amberwood Development Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205 , 208 (2005) (emphasis added). Where a permit for an ambulance service next door to a plaintiff had been abandoned, but was a use that could recur, the use was not so theoretical that the court was unable to opine as to the extent of the effect on the abutting plaintiff. Id. Similarly, where a plaintiff challenged an abutting landowner’s expired building permit for a single-family home, the landowner who had obtained the permit was not “being compelled to defend a hypothetical right to build. It was (the landowner who had obtained the permit) who triggered the controversy by applying for and obtaining a building permit.” Fitch v. Board of Appeals of Concord, supra, 55 Mass. App. Ct. at 753, fn. 7. But, “[t]he feared use must be likely, not merely hypothetical or theoretical… And it must have a provable, adverse effect on the neighbor’s land.” Frost v. Percelay, 20 LCR 454 , 457 (Land Court, 2012) (Long, J.). The provision in the statute to the effect that a landowner need not have the benefit of a building permit or architects’ plans, is primarily for the benefit of a landowner seeking a determination with respect to his own land, and not for the benefit of other landowners challenging a neighbor’s proposed use of his or her land, and does not relieve the neighboring landowners of the requirement that they prove a direct effect on their land that is not theoretical or hypothetical. Id.

The plaintiffs have failed to show by undisputed facts in the record, the specific uses and structures by which they claim they will be affected. They are able to show only that the Fair has a general intent to add buildings and uses to the Fairgrounds, with no specific plans for the buildings or their development, and with no specific plans for particular uses of those buildings besides the current uses. There is nothing approaching certainty that any of the buildings described in the master plan will ever be fully designed, permitted, funded, or built and put into use. There is no information in the record as to the specific uses to which the buildings will be put if they are ever built. It is one thing to consider whether an ambulance service or single- family home on a specific property is allowed or not under a zoning ordinance or bylaw. It is another entirely to have to speculate as to the details of a large scale development on a nearly sixty-acre parcel, and as to the uses to which buildings will be put in a facility that is likely to be used for multiple purposes. This is a far more speculative and hypothetical claim than that in Hansen & Donahue, supra, in which, while there was no certainty that an ambulance service would be re-introduced to the property, the parameters of the use were well-established in the event that it did come back; or than that in Fitch, supra, in which the declaration sought was with respect to a single-family house that already had been granted a permit (although one that had expired) and which therefore was a well-defined use. For these reasons, Phases 2, 3 and 4 of the proposed redevelopment of the Fairgrounds are far too theoretical for the court to be able to exercise its jurisdiction pursuant to G. L. c. 240, §14A.

The plaintiffs have also failed to show, on the current record, a “direct effect” on their properties to allow the court to exercise jurisdiction under G. L. c. 240, §14A. A few of the plaintiffs allege that they are abutters or abutters to abutters to the Fairgrounds property, but as this is not an appeal pursuant to G. L. c. 40A, §17, being an abutter or an abutter to an abutter carries with it no presumption of standing. See Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 , 423 (2004) (difference between standing under G. L. c. 40A, §17 and G. L. c. 240, §14A noted). The plaintiffs do allege, but do not show with any facts in the record, (other than to assert that they are currently experiencing traffic and drainage problems) that they will be affected by traffic and drainage issues as a result of the build-out of Phases 2, 3 and 4. But with no information about off-site roadway and drainage improvements to be made in conjunction with the permitting of Phases 2, 3 and 4, and with no information on the handling of traffic, drainage and utilities on the Fairgrounds property in connection with the construction of future buildings, it is impossible to conclude, other than by speculation, that there would in fact will be any direct effect on the plaintiffs with respect to these issues. The plaintiffs have not shown and the court cannot assess the effect on the plaintiffs of development plans, including traffic plans and drainage plans that do not yet exist for buildings and uses that are not yet proposed in anything but a hypothetical manner.

The court notes that this decision does not leave the plaintiffs without an appropriate remedy. Should the Fair in the future submit applications for further development of the Fairgrounds, the plaintiffs will have the opportunity to assess whether it is appropriate to appeal the granting of such applications pursuant to G. L. c. 40, §17, or to file a future action pursuant to G. L. c. 240, §14A, but one that will be based on a development proposal that is not theoretical or hypothetical in nature.

CONCLUSION

For the reasons stated above, the defendants’ revised motion for summary judgment is ALLOWED, and the plaintiffs’ revised motion for summary judgment is DENIED.

Judgment to enter accordingly.