Melanson Development Group, Inc. (Melanson) seeks to construct 18 townhouses on a parcel of land in Woburn. In order to do so, it needed the parcel rezoned to a district under the Woburn Zoning Ordinance that allows multifamily housing. After an application and hearing process that included hearings before the Woburn City Council, Planning Board, and Ordinance Committee that included a negative recommendation, the City Council approved the rezoning. The plaintiffs, residents in the neighborhoods around the rezoned parcel, have brought this action under G. L. c. 240, § 14A, challenging the rezoning as spot and contract zoning and as arbitrary and capricious. The parties have filed cross-motions for summary judgment. Because the property was rezoned for reasons relating to legitimate public goals and to a zone that is consistent with neighboring zones, the City Council is entitled to deference, and the rezoning is upheld.
On September 24, 2015, John Franson, Elizabeth Franson, Jason Gerry, Vicki Gerry, Joanne Frette, Richard Frette, Thomas Kelly, Linda Kelly, Janet Hare and James Hare filed the original Complaint in this action, naming as defendants the members of the Woburn City Council. On October 8, 2015, the members of the Woburn City Council filed an Answer. A case management conference was held on November 4, 2015, at which the plaintiffs were instructed to amend their complaint. The plaintiffs filed their first Amended Complaint on November 13, 2015, adding as plaintiffs Deran Manoukian, Walter Wickwire, and Margaret Wickwire, and naming as defendants the City of Woburn (City), Melanson Development Group, Inc. (Melanson), and Eileen C. Marsan (Marsan) (collectively, the defendants). The Amended Complaint was brought pursuant to G. L. c. 240, § 14A, and challenges the rezoning of property in the City owned by Marsan and under agreement with Melanson. Count I of the Amended Complaint alleges that the rezoning constituted illegal spot zoning, count II alleges that the rezoning constituted illegal contract zoning, and count III alleges that the approval of rezoning was arbitrary and capricious. On December 2, 2015, the City filed its Answer to the Amended Complaint. On December 17, 2015, Melanson filed its Answer to the Amended Complaint. Marsan filed a letter regarding this action on December 21, 2015. A Stipulation of Dismissal as to Plaintiffs Jason Gerry, Vicki Gerry, Joanne Frette, Richard Frette, Janet Hare and James Hare was filed on May 4, 2016.
On June 6, 2016, a Joint Statement of Undisputed Facts was filed (SOF). On June 24, 2016, Melanson filed (a) Defendant Melanson Development Group, Inc.s Motion for Summary Judgment, (b) Defendant Melanson Development Group, Inc.s Memorandum of Law in Support of Motion for Summary Judgment (Def. Mem.), (c) Defendant Melanson Development Group, Inc.s Statement of Additional Undisputed Material Facts in Support of Motion for Summary Judgment (Def. Facts), and (d) Affidavit of Counsel in Support of Defendant Melanson Development Group, Inc.s Motion for Summary Judgment and Appendices A and B (Def. App.). On July 29, 2016, John Franson, Elizabeth Franson, Thomas Kelly, Linda Kelly, Deran Manoukian, Walter Wickwire and Margaret Wickwire (collectively, the plaintiffs) filed (a) Plaintiffs Motion for Summary Judgment, (b) Plaintiffs Opposition to Defendants Motion for Summary Judgment, and (c) Plaintiffs Memorandum of Law in Support of their Opposition to Defendants Motion for Summary Judgment. The court heard argument on the cross motions for summary judgment on August 3, 2016, and the motions were taken under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Regis College, 462 Mass. at 291-292.
With their joint statement of undisputed facts, the parties submitted the following documents: the Original Petition to Amend Zoning Map of the City of Woburn (Exh. 1), Minutes of the May 19, 2015 City Council meeting (Exh. 2), Minutes of the April 14, 2015 Planning Board meeting (Exh. 3), Memorandum from Melanson to the Planning Board dated May 7, 2015, including a traffic assessment memorandum prepared by TEPP LLC dated April 7, 2015 (Exh. 4), Letter from Alderman Ray Drapeau to the Planning Board dated May 8, 2015 (Exh. 5), Letter from City of Woburn Historical Commission to City Council dated May 11, 2015 (Exh. 6), Planning Board recommendation on proposed zoning map amendment for property at 165 Cambridge Road and Cambridge Road Rear dated May 13, 2015 (Exh. 7), Minutes of the June 10, 2015 public hearing of the Committee on Ordinances, Charter and Rules (Exh. 8), Minutes of the August 4, 2015 public hearing of the Committee on Ordinances, Charter and Rules (Exh. 9), Minutes of the August 11, 2015 regular meeting of the City Council (Exh. 10), the Roll Call Vote Tally regarding the amendment to rezone R-1 to R-3 but leave B-H as B-H for 165 Cambridge Road dated August 11, 2015 (Exh. 11), Email from John Cashell to William Campbell dated April 12, 2015 (Exh. 12), and Email from John Cashell to Richard Haggerty, President of City Council, dated May 19, 2015 (Exh. 13).
Based on the pleadings and the documents submitted with the cross-motions for summary judgment, I find that the following facts are undisputed.
1. Marsan is the current owner in fee simple of two parcels of real property located at 165 Cambridge Road in Woburn (Property). The Property is identified on Assessors Map No. 65-08-18 and 65-08-19. SOF, ¶¶ 7-8.
2. Melanson is a Massachusetts corporation with an address of 5 Robertson Way, Woburn, Massachusetts. SOF, ¶ 6.
3. Melanson is the prospective buyer of the Property under a purchase and sale agreement with Marsan. SOF, ¶ 10.
4. Before the rezoning that is the subject of this action, the Property was located in the Single Family Residential (R-1) Zoning District under the Woburn Zoning Ordinance (Ordinance). The Property is bordered to the north by conservation land in the Open Space (O-S) Zoning District, to the south by land in the Business-Highway (B-H) Zoning District, and to the west and east by land in the Single Family Residential (R-1) Zoning District. SOF, ¶ 9.
5. The Property is located on Cambridge Road (Route 3), a main artery in the City. In addition, it is in close proximity to a shopping plaza containing, among other establishments, a package store, gas station, hairdresser, bank, 7Eleven, McDonalds, and Dunkin Donuts. Def. App. B, Exh. A, p. 10, Exh. B, p. 23.
6. On or about March 6, 2015, defendants Marsan and Melanson filed a Petition to Amend Zoning Map of the City of Woburn (Petition) requesting the City to change the zoning district of the Property from Zone R-1 to Zone R-3. [Note 1] Zone R-3 is a Residential Townhouse and Garden Apartment Zoning District. SOF, ¶ 11, Exh. 1.
7. The Woburn City Council (City Council) held a public hearing on the Petition the on April 7, 2015. At the hearing, a representative of Melanson stated that its intention was to construct 22 townhouse units on the Property (later decreased to 18 townhouse units). The City Council referred the Petition to the Committee on Ordinances, Charter and Rules (Ordinance Committee) and continued the public hearing to May 19, 2015. SOF, ¶ 12, Exh. 2.
8. On April 14, 2015, the Woburn Planning Board (Planning Board) held a public hearing on the Petition, at which the Planning Board requested additional information from Melanson. SOF, ¶ 13, Exh. 3.
9. On May 7, 2015, Melanson filed a letter providing the requested information to the Planning Board. The letter included: (i) a statement that Melansons proposed development of the Property will include 22 total townhouse units, (ii) a list of By-Right Uses in the B-H Zoning District, (iii) the distance between the Property and certain surrounding properties, (iv) an Area Plan prepared by Alan Engineering, LLC dated April 28, 2015, depicting the zoning classification of the Property and certain surrounding properties, (v) a traffic impact assessment memorandum prepared by TEPP, LLC dated April 7, 2015, (vi) a discussion about drainage concerns, and (vii) a discussion about the density of Melansons proposed development on the Property. SOF, ¶ 14, Exh. 4.
10. On or about May 8, 2015, Alderman Raymond Drapeau submitted a letter in support of the Petition. Raymond Drapeau is the alderman for Ward 7, the ward in which the Property is located. SOF, ¶ 15, Exhs. 5.
11. John Cashell, a Woburn resident, submitted two emails on April 13, 2015 and May 19, 2015 opposing the Petition. SOF, ¶ 22, Exhs. 12-13.
12. On or about May 11, 2015, the Woburn Historical Commission (Historical Commission) submitted a letter in support of the Petition. SOF, ¶ 16, Exh. 6.
13. The Planning Board held a continued public hearing on the Petition on May 12, 2015. A motion was made at the public hearing for the Planning Board to issue a recommendation in favor of the Petition to the City Council. The Planning Board members voted 3-3-1 on the motion, the one vote abstaining, and therefore, failed to render a majority recommendation on the Petition. Absent a definitive recommendation, the Planning Board filed a memorandum with the City Council setting forth each voting members rationale. The memorandum reads, in relevant part:
In favor of a positive recommendation:
i. The petitioners have expressed a willingness to resolve long-standing issues associated with the Battle Road site (formalization of public access) and to consider future plan modifications to address at least some of the potential issues that might arise from eventual development of this site (i.e. traffic and drainage mitigation).
ii. The townhouse development contemplated by the petitioners is a better fit for the existing neighborhood because it provides a logical land use buffer (transition zone) between the single-family residences nearby and the business/commercial district immediately abutting it.
iii. The project will require additional review by the City in the form of a future Special Permit/site plan review application, and that process provides opportunities at a later date for refining the plan and imposing development restrictions.
iv. The project has the support of the councilor who represents the ward as well as the Citys Historical Commission.
Against a positive recommendation:
i. The proposal for 22 townhouse units is too dense for this location. As a result, it would not be in the public interest to rezone the parcels to accommodate it.
ii. The site is located in an area that already experiences difficult traffic conditions which would be exacerbated by traffic from 20+ additional homes. In particular, the intersection of Cambridge Road and Russell Street (Four Corners) is already heavily congested. Creating additional traffic by up-zoning these parcels to permit additional residential units is not in the publics interest.
iii. Rezoning this site to multi-family use may inspire a similar, future rezoning request from the owner of the vacant R-1 zoning parcel abutting this site. If that were to occur, there may be no way to distinguish between the two and, therefore, that lot would also be redeveloped for multi-family use. This scenario would lead to the construction of even more units in the area which would in turn exacerbate the density and the traffic concerns already present in this neighborhood.
SOF, ¶ 17, Exh. 7.
14. At meetings on June 10, 2015 and August 4, 2015, the Ordinance Committee considered the Petition. The Committee heard from several residents opposing the Petition. At the August 4th meeting, the Committee voted 3-1-1 that the Petition be sent back to the City Council with a recommendation that the Petition ought-not-to-pass. SOF, ¶ 18, Exhs. 8-9.
15. At a continued public hearing on August 11, 2015, the City Council voted to approve the Petition by a vote of 6-3. SOF, ¶ 19, Exhs. 10-11.
16. The approval of the Petition was presented to the Mayor of the City of Woburn on August 13, 2015 and became effective on August 25, 2015 without the Mayors signature pursuant to Section 25 of the Charter of the City of Woburn (the Amendment). The Charter of the City of Woburn provides, in relevant part:
Sect. 25. Certain Ordinances, etc., to be Presented to the Mayor for Approval; Veto.
Every Ordinance, Order or Resolution of the City Council, except such as relates to the election of the officers to be chosen by the Board under the provisions of this Act or of Law, or such as relates to the declaration of a vacancy in the office of Mayor, and every vote of the Board other than votes incidental to the transaction of business under parliamentary rules, shall be presented to the Mayor, as hereinbefore provided. If he approves thereof he shall signify his approval by signing the same, but if not he shall return the same with his objection to the City Council, who shall enter the objection of the Mayor at length upon their records and proceed to reconsider said Ordinance, Order, Resolution or Vote, and if after such reconsideration two-thirds of the City Council, notwithstanding such objections, vote to pass it, it shall be in force. In all cases the vote shall be by yeas and nays, and it shall be taken at the meeting at which the Mayors message is received, or at the meeting next following. If such Ordinance, Order, Resolution or Vote shall not be returned within ten days after it shall have been so presented to the Mayor the same shall have the same effect as if approved. He may except from his approval of any such Ordinance, Order, Resolution or Vote, any portion involving a distinct item of expenditure; and in such case instead of returning the original he shall transmit a copy of such portion not approved, which portion shall be reconsidered in the manner and with the effect herein provided. The veto power of the Mayor shall not extend to elections.
SOF, ¶ 21.
17. In connection with the Petition and the public hearings, defendant Melanson submitted to the City a Proposed Rezoning Plan in Woburn, Mass. dated February 13, 2015, an Area Plan dated April 28, 2015, a Certified List of Abutters for Parcel ID. No. 65-08-18, and a Certified List of Abutters for Parcel ID. No. 65-08-19. Both of the Certified Lists of Abutters were recorded at the City of Woburn Assessors on January 26, 2015. Def. Facts, ¶¶ 1-4; Def. App. A, Exhs. A-D.
18. The plaintiffs have submitted no appraisals, traffic studies, or expert opinions demonstrating adverse impact or diminution in value of their property interests as a result of the Amendment rezoning the Property from Zone R-1 to Zone R-3. SOF, ¶ 20; Def. Facts, ¶¶ 5-6.
At issue in this action, brought pursuant to G. L. c. 240, § 14A, is whether the City Councils approval of the Petition and adoption of the Amendment was a valid exercise of local zoning power. Rando v. Town of North Attleborough, 44 Mass. App. Ct. 603 , 604 (1998). In general, a municipality is given broad authority to establish zoning districts regulating the use and improvement of land within its borders. Andrews v. Town of Amherst, 68 Mass. App. Ct. 365 , 367 (2007); see, e.g., Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 359 (1973). The exercise of the City Councils broad legislative powers in adopting the Amendment is limited by whether the Amendment violated the Zoning Enabling Act, G. L. c. 40A, or any constitutional protections. Andrews, 68 Mass. App. Ct. at 368; Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104 , 108 (2003). The plaintiffs claim that the adoption of the Amendment was not a valid exercise of the City Councils legislative power because it constitutes spot zoning, contract zoning, and an arbitrary and capricious approval of rezoning. The defendants claim that the plaintiffs lack standing under G. L. c. 240, § 14A to challenge the Amendment, and that approval of the Amendment was a valid exercise of the City Councils zoning power.
Section 14A is to be broadly construed and the rigorous standard for a person aggrieved that arises under G. L. c. 40A, § 17 does not apply to plaintiffs who challenge the validity of a zoning regulation or amendment thereto under G. L. c. 240, § 14A. Harrison v. Town of Braintree, 355 Mass. 651 , 654-655 (1969); Van Renselaar, 58 Mass. App. Ct. at 107. The statute . . . authorizes a petition by a landowner on whose land there is a direct effect of a zoning enactment through the permitted use of other land. In such a case the landowner comes to court because of the effect of the enactment on the continued use, enjoyment, improvement or development of this property for the purpose for which it is zoned. Harrison, 355 Mass. at 655. [F]or purposes of their standing to challenge local legislation that adopts or amends a zoning ordinance or by-law, it is sufficient for . . . plaintiffs to have established that they will suffer an adverse impact from the legislative zoning action, without establishing, in addition, that their injury is special and different from the concerns of the rest of the community. Van Renselaar, 58 Mass. App. Ct. at 107.
The plaintiffs live sufficiently near the Property that an inference could be drawn in their favor that the addition of 18 townhouses on the Property would have a direct effect on them, thereby establishing their standing to challenge the Amendment under G. L. c. 240, § 14A. See Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 , 422-424 (2004) (plaintiff-neighbor had standing under G. L. c. 240, § 14A where he submitted affidavit of a traffic engineer asserting that the plaintiffs property will be significantly negatively impacted by the defendants proposed development of nearby locus); Powers v. Town of Falmouth, 23 LCR 464 , 467 (2015), affd, 89 Mass. App. Ct. 1134 (2016) (plaintiffs had standing under the more relaxed standard of G. L. c. 240, § 14A to contest a zoning amendment where the plaintiffs owned land immediately north and to the west of the rezoned property); see also Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 723 (1996) (holding that fears of increased traffic and loss of parking are neither speculative nor too remote to establish standing even under the heightened person aggrieved standard of G. L. c. 40A, § 17). While this inference cannot support summary judgment in plaintiffs favor on their standing, it is sufficient to allow the court to move on to consider whether Melanson is entitled to summary judgment on the merits of the amended complaint.
Spot zoning occurs where one lot or a small area has been singled out for treatment less onerous than that imposed upon nearby, indistinguishable properties. W.R. Grace & Co.-Conn. v. Cambridge City Council, 56 Mass. App. Ct. 559 , 569 (2002), quoting Bobrowski, Massachusetts Land Use and Planning Law § 3.4.3 (1993). Selective zoning of that kind violates the uniformity requirements of G. L. c. 40A, § 4, and constitutes a denial of equal protection under the law guaranteed by the State and Federal Constitutions. Van Renselaar, 58 Mass. App. Ct. at 108, quoting Rando, 44 Mass. App. Ct. at 606. Whether the approval of the Amendment constitutes spot zoning turns not on what parcel has been singled out, or even on the effect on the parcel, but rather on whether the change can fairly be said to be in furtherance of the purposes of the Zoning Act. W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 569; Bellis Circle, Inc. v. City of Cambridge, 21 LCR 373 , 376 (2013), affd, 86 Mass. App. Ct. 1105 (2014). In a claim of spot zoning [e]very presumption is to be made in favor of the amendment and its validity will be upheld unless it is shown beyond reasonable doubt that it conflicts with the enabling act. Van Renselaar, 58 Mass. App. Ct. at 108, quoting Lanner v. Bd. of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964). Thus, the plaintiffs face the heavy burden, Sturges v. Town of Chilmark, 380 Mass. 246 , 256 (1980), of proving by a preponderance of the evidence that the [Amendment] is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare. Johnson v. Town of Edgartown, 425 Mass. 117 , 121 (1997); Van Renselaar, 58 Mass. App. Ct. at 108. If the reasonableness of [the Amendment] is fairly debatable, the judgment of the local legislative body (here the [City Council]) should be sustained and the reviewing court should not substitute its own judgment. National Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 309 (1990); see Crall v. City of Leominster, 362 Mass. 95 , 101-102 (1972); Caires v. Building Commr of Hingham, 323 Mass. 589 , 594-595 (1949); Andrews, 68 Mass. App. Ct. at 369.
The undisputed facts demonstrate that the plaintiffs have failed to meet the heavy burden of establishing that the Amendment conflicts with the Zoning Act and is, therefore, spot zoning. W.R. Grace & Co.-Conn., 56 Mass. App. Ct. at 566-567. The summary judgment record contains ample evidence that before approving the Amendment the City Council held public hearings and reviewed recommendations and reports from the Planning Board, Historical Commission, plaintiffs, defendants, and local residents. Based on the hearings and opinions presented, the City Council reasonably concluded that the passage of the Amendment would further the Citys long-standing goals of providing additional housing inventory and public access to Old Lexington Street (Battle Road), an historic site. The Citys housing objective is expressed in the Woburn Vision 2020 Community Development Plan as well as the Woburn Plan for Progress. See Def. Mem. p. 10. With regard to Battle Road, historic preservation is a goal surely within the purview of the [zoning] enabling act. Fabiano v. City of Boston, 49 Mass. App. Ct. 281 , 286 (2000); see Opinion of the Justices, 333 Mass. 773 , 780 (1955) (There has been substantial recognition by the courts of the public interest in the preservation of historic buildings, places and districts.). In approving the Amendment, the record shows a rational and calculated effort by the City Council to achieve long-standing objectives that will further the general welfare of the City. Compare McLeod v. Town of Swampscott, 22 LCR 91 , 95-96 (2014) (spot zoning where sole purpose of rezoning was to maximize market value of town-owned parcel).
Based on the surrounding zoning classifications, the City Council could have reasonably determined that it was appropriate to rezone the Property from Zone R-1 to Zone R-3. Spot zoning has also been found to be less likely at the borders of districts. W.R. Grace & Co.- Conn., 56 Mass. App. Ct. at 571, citing Coleman v. Bd. of Selectmen of Andover, 351 Mass. 546 , 549 (1967). The Property in this case is surrounded by Zone R-1, Zone O-S, and Zone B-H and it is located on Cambridge Road (Route 3), a main artery in the City. There is no evidence in the record establishing that the Amendment singles out the Property from nearby, indistinguishable properties, or that it violates the uniformity requirements of G. L. c. 40A, § 4. Rather, the City Council had a practical basis for rezoning the Property given that it is located adjacent to the business-highway district, the open space district, and Route 3. See Coleman, 351 Mass. at 549 (holding that zoning classification of surrounding lots should be considered to determine the zoning classification of a lot in question); compare McLeod, 22 LCR at 96 (spot zoning where rezoned parcel is a small island completely surrounded by one and two family residences, a considerable distance away from any dense developments).
Moreover, recent development in the local neighborhood surrounding the Property supports the City Councils approval of the Amendment. Peters v. City of Westfield, 353 Mass. 635 , 638 (1968); Muto v. City of Springfield, 349 Mass. 479 , 482 (1965) (changes in the neighborhood unquestionably justified a zoning reclassification). In addition to being located on Route 3, the Property is in close proximity to a shopping plaza containing, among other establishments, a package store, gas station, hairdresser, bank, 7Eleven, McDonalds, and Dunkin Donuts. The City Council could have reasonably concluded that rezoning the Property to Zone R-3 served the public convenience and welfare by adjusting to the changing neighborhood and creating a buffer zone between the R-1 (single-family) Zone and the B-H (business-highway) Zone.
The City Councils approval of the Amendment does not constitute contract zoning. Illegal contract zoning is said to involve the process by which a local government enters into an agreement with a developer whereby the government extracts a performance or promise from the developer in exchange for its agreement to rezone the property. Rando, 44 Mass. App. Ct. at 607. The process is suspect because of the concern that a municipality will contract away its police power to regulate on behalf of the public in return for contractual benefits offered by a landowner whose interest is principally served by the zoning action. McLean Hosp. Corp. v. Town of Belmont, 56 Mass. App. Ct. 540 , 545 (2002); see Rando, 44 Mass. App. Ct. at 607. The existence of an agreement per se does not invalidate related zoning actions; it is the nature of the agreement and the character of the zoning action that determine the outcome. McLean Hosp. Corp., 56 Mass. App. Ct. at 545. A challenge to a rezoning enactment on the basis that it is contract zoning provoke[s] two questions: (1) was the action contrary to the best interest of the city and hence offensive to general public policy; and (2) did it involve extraneous consideration which could impeach the enacting vote as a decision solely in respect of rezoning the locus? Id. at 546-47, quoting Sylvania Elec. Prod., Inc. v. City of Newton, 344 Mass. 428 , 434 (1962).
Melanson is entitled to summary judgment on the issue of contract zoning because the plaintiffs have failed to present evidence that the Amendment is contrary to the best interest of the City or that the Amendment was approved solely because of offerings from Melanson that were unrelated to the development of the Property. See Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 53 (2003) (upholding a towns approval of a rezoning application, where developer pledged $8 million to the town if they were to rezone for development, despite contract zoning claim after reasoning that the voters at the town meeting approving the rezoning were not bound to approve the zoning change); McLean Hosp. Corp., 56 Mass. App. Ct. at 548 (finding town did not engage in contract zoning where, in exchange for zoning approval, a developer agreed to provide the town with certain open space on the rezoned property, protection of significant historical features, commitments with respect to affordable housing and recreational benefits, and a traffic management agreement, because such commitments were substantially related to the general welfare); Rando, 44 Mass. App. Ct. at 605, 609-611 (holding no contract zoning had occurred where a developer offered, in addition to payment, to provide the town with a no build buffer zone, traffic improvements, mitigation payments, and a commitment not to seek tax abatements with respect to rezoned land for five years).
As discussed above, based on the undisputed facts the City Council reasonably concluded that the Amendment would result in benefits to the City in the form of additional housing and public access to the historic Battle Roadtwo legitimate public goals. The improvements offered by Melanson in the present case are substantially related to the proposed development of the Property. Upon acquisition of the Property, Melanson has agreed to (1) establish legal public access to Battle Road, (2) construct a public parking area for the exclusive use of the public for access to a walking trail and the open-space conservation area, and (3) erect signage at the entrance to Battle Road to signify the historical significance of the area. The legal status of Battle Road has been a long-standing dispute between the City and Marsan (the current owner of the Property), and the Citys Historical Commission has repeatedly sought to create public access to the road. Like the agreements reached in the cases cited above, the agreement reached between the City and Melanson is closely related to the development of the Property. Based on the foregoing, summary judgment must be entered for the defendants, dismissing the plaintiffs claim of contract zoning.
Arbitrary and capricious.
Finally, the City Councils decision to approve the Amendment was neither arbitrary nor capricious. As discussed above, the City Council held public hearings and reviewed recommendations and reports from various parties before approving the Amendment. It acted to achieve the Citys objective of providing additional housing for its citizens and providing public access to Battle Road. The City Council considered that the Property abuts three different zoning classifications, a highly trafficked road (Route 3), and a shopping center. See W.R. Grace & Co.- Conn., 56 Mass. App. Ct. at 571. Although the City Council ultimately disagreed with the Planning Board by approving the Amendment, is it well-established that [t]he decision regarding sensible zoning is for the planning board to recommend and for the city council to make. Id. at 568; Bellis Circle, Inc., 21 LCR at 377. Additionally, Melansons agreement to construct a parking lot, erect signage, and provide public access to Battle Road serves the general welfare of the Citys constituents. Thus, the City Council acted reasonably in deciding that R-3 zoning was appropriate for the Property and that such zoning will benefit the City.
For the foregoing reasons, Defendant Melanson Development Group, Inc.s Motion for Summary Judgment is ALLOWED, and Plaintiffs Motion for Summary Judgment is DENIED. Judgment shall enter dismissing the amended complaint with prejudice.
[Note 1] The Petition also included a request to change the zoning of an adjacent parcel owned by Philip J. Melanson, as Trustee of Step Two Realty Trust, from Zone B-H to Zone R-3. The City Council did not approve the rezoning of that parcel, and that failure to rezone is not part of this case.