MISC 15-000285

January 31, 2017

Plymouth, ss.



On July 23, 2015, Indianhead Realty, Inc. (Indianhead) filed this compliant pursuant to G. L. c. 240, § 14A, seeking the court's interpretation of certain sections of the Zoning Bylaw of the Town of Plymouth (Bylaw), as they apply to a proposed use of property owned by Indianhead at 1929 State Road in Plymouth (Locus). Indianhead argues its proposed use of Locus is either allowed as-of-right in a Rural Residential zoning district or is allowed under the provisions of a special permit issued by the Plymouth Zoning Board of Appeals (Board) in 1968. At the time this case was filed, there was pending in the Land Court a related case, 14 MISC 486199, brought by Indianhead under G. L. c. 40A, § 17, appealing the Board's denial of a special permit application respecting Locus. Since the filing of this case, Indianhead filed a third case numbered 16 MISC 000727, also an appeal from a special permit denial. All three pending cases involve Locus and the uses Indianhead seeks to conduct thereon.

Plaintiff moved for summary judgment and this court now decides the motion in favor of the Town, after hearing. The proposed use of Locus by Plaintiff is not a use allowed as-of-right under the Bylaw, nor is it allowed under the 1968 Special Permit as issued. The question of whether Indianhead is entitled to the special permits which have been denied by the Board is not directly before the court in this action and has not been determined, but remains for determination in the two related cases.

While not all details of Indianhead's proposed project are fleshed out on the summary judgment record, the salient aspects of it, as originally proposed, include the excavation of over 400,000 cubic yards of sand and gravel from Locus in connection with the installation of an outdoor athletic/recreational field, and construction of a maintenance barn, and an equipment shed (Proposed Use). Indianhead argues all aspects of the Proposed Use are necessary and incidental to the construction of the recreational fields and use of Locus as a recreational campground, and are allowed as-of-right pursuant to Bylaw §§ 205-40 and 205-18(F)(a). In the alternative, Indianhead claims it has been operating as a recreational campground pursuant to the 1968 Special Permit granted by the Board to Indianhead's predecessor-in-title in 1968.

Indianhead moved for summary judgment on May 19, 2016. Defendant Town of Plymouth (Town), in an opposition filed June 17, 2016, argues 1) this court lacks subject matter jurisdiction over Indianhead's declaratory relief requests, 2) the action under G. L. c. 240, § 14A is an wrongful attempt to sidestep an appeal process provided in G. L. c. 40A §§ 8, 15, and Bylaw § 205-5(F), and 3) Indianhead's Proposed Use is an expansion of a prior nonconforming use which is prohibited under § 205-25(C) of the Bylaw without zoning relief. Specifically, the Town asserts the excavation component of the Proposed Use is a sand and gravel quarry and, accordingly, the Proposed Use requires a special permit as a quarry is not a use allowed as-of- right. [Note 1] On December 22, 2015, this court allowed a Motion to Intervene brought by property owners who own and reside in properties within the same Rural Residential zoning district where Locus is located. [Note 2]

A hearing on Plaintiff's Motion for Summary Judgment was held on July 16, 2016, at which all parties were heard. Interveners supported and joined in the Town's opposition and also filed their own brief in opposition, arguing the Proposed Use constitutes a prohibited expansion of a prior nonconforming use. In addition, they claim the 1968 special permit applied to only a small section of Locus, rather than the entire property.

"Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Summary judgment may be granted, as it is here, against the moving party where appropriate. Mass. R. Civ. P. 56(c).

While there are few agreed facts, the record establishes the following:

1. Locus is located on State Road, within the Rural Residential (RR) District of Plymouth. It is shown as Lots 6A-1 and 6A-3 on Plat 61 of the Town of Plymouth's Assessors Maps dated January 1, 2012. Locus is not in an Area of Critical Environmental Concern (ACEC) under the Bylaw.

2. "Indianhead Resort," described by Indianhead as a recreational campground, came into existence by virtue of a special permit issued by the Board on July 26, 1968 (1968 Special Permit). [Note 3]

3. On or about January 10, 2011, Indianhead filed a zoning permit application with the Building Commissioner (Commissioner) for the proposed use of a "maintenance barn [and] recreational/athletic fields with supporting equipment shed." [Note 4]

4. The Commissioner denied the application, determining that the project constituted "a sand and gravel quarry operation" requiring a special permit pursuant to § 205- 40(D) (1). [Note 5] The Commissioner also determined that the Proposed Use was not "incidental to and required in connection with the construction of an approved use or structure" under § 205-18(F)(1)(b), [Note 6] and that the project required a special permit to extend or alter a nonconforming use pursuant to § 205-25(A)(3); [Note 7] a special permit subject to environmental design conditions pursuant to § 205- 40(D)(3), and a special permit for sand and gravel removal pursuant to § 205-18(F) and (G) (collectively, the 2011 Denial). [Note 8] Indianhead did not appeal the 2011 Denial to the Board.

5. On or about September 16, 2013, Indianhead filed a zoning permit application (titled a Commercial and Industrial Zoning Application) with the Commissioner for proposed modifications to Locus. This application was denied by the Commissioner on or about October 8, 2013 (2013 Denial). No appeal was filed.

6. Based on the 2013 Denial, on October 15, 2013, Indianhead applied to the Board for a special permit to expand a nonconforming use under § 205-25, or to expand the campground by special permit subject to environmental design conditions pursuant to Bylaw § 205-40(D). On the same day, Indianhead submitted to the Board an application for a special permit for excavation pursuant to § 205-18(B), (F) and (G).

7. Hearings on the applications were held on May 7, 2014, June 18, 2014, and August 6, 2014. On August 6, 2014, the applications were denied.

I. Indianhead's Claim Does Not Fall Within G. L. c. 240, § 14A

G. L. c. 240, § 14A, vests jurisdiction in the Land Court over cases in which plaintiffs with standing challenge the validity of particular provisions in zoning ordinances or bylaws, or the extent to which such provisions may be applied to a proposed use of property. Banquer Realty Co. v. Acting Bldg. Comm'r of Boston, 389 Mass. 565 , 570 (1983). The statute provides, in relevant part,

"[t]he owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. . . . The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not."

G. L. c. 240, § 14A provides a mechanism separate from other administrative routes, including those set forth in G. L. c. 40A (The Zoning Act), such as appeals pursuant to G. L. c. 40A, § 17. Actions under Section 14A need not present an actual case and controversy in order to be heard. The Land Court is vested with exclusive jurisdiction to determine the extent to which a zoning bylaw affects a proposed use of property, or the validity of a particular zoning ordinance or bylaw that purports to limit the use of such property. Whitinsville Ret. Soc'y, Inc. v. Northbridge, 394 Mass. 757 , 762–63 (1985), citing Addison-Wesley Publ'g Co. v. Reading, 354 Mass. 181 , 184–85 (1968). While a claim under G. L. c. 240, § 14A is not necessarily barred when there is a contemporaneous G. L. c. § 40A, § 17 claim involving use of or construction on a plaintiff's property, Chapter 240, § 14A cannot be used to determine the scope of or provide a judicial interpretation of special permits, variances, or presumably other municipal board decisions. Whitinsville Ret. Soc'y, Inc. v. Town of Northbridge, 394 Mass. 757 , 762–63 (1985).

In the present action, Indianhead seeks a determination that its proposed use of Locus is allowed as-of-right under the Bylaw, but in this court's view, it is in substance seeking to side step decisions of the Board and the Commissioner in a manner prohibited by the Whitinsville decision. Indianhead's requests for relief in paragraphs (vi), (vii), (viii) and (ix) of its complaint, although characterized otherwise, are in effect challenges to the decisions rendered by both the Commissioner and the Board in denying Indianhead's applications for zoning permits and special permits, respectively. The Board's decision is the subject of an appeal under G. L. c. 40A, § 17, already before this court, and many of the issues presented in this action will be properly before the court in that case. [Note 9]

To the extent there are any G. L. c. 240, § 14A claims properly raised in this action, there is a failure on this record to establish the factual context necessary to decide any such claims in Plaintiff's favor as a matter of law under Mass. R. Civ. P. 56. Specifically, the record does not establish the precise extent and nature of the Proposed Use at Locus. Lacking such information, Plaintiff has failed to establish as a matter of law that the Proposed Use is allowed as-of-right under the Bylaw or requires special permitting. Both Indianhead's special permit applications and representations made at oral argument, for example, reference different amounts of gravel and sand which will be excavated in connection with Indianhead's proposed recreational fields. This information is important to the court's consideration of whether the excavation constitutes a primary use of Locus as a sand and gravel quarry (as alleged by the Town), or an incidental use required in order to create an allowed use as an allowed recreational field (as alleged by Indianhead). If Indianhead relies on the 1968 Special Permit to validate its right to perform the excavation work it proposes, the record must establish, at a minimum that the 1968 Special Permit applies to the location of the proposed excavation and recreational field.

Interveners allege the 1968 Special Permit applied only to approximately forty acres out of 1,153 acres comprising Locus. Specifically, they allege the 1968 permit did not apply to the portion of Locus shown as Lot 6A-1 on Plat 61 of the Town of Plymouth Assessors Map, dated January 1, 2012, which, they allege, is the site of the proposed excavation and athletic field. To the extent Indianhead relies on the 1968 Special Permit to validate its claim that the Proposed Use comes within the use of its property as allowed under that permit, it is essential to its claim that the proposed work is located on the property benefitted by the Special Permit. This has not been established on this record.

II. The Record Does Not Establish the Current Use of Locus Constitutes a Legal Pre-Existing Non-Conforming Use as a Matter of Law.

Indianhead alleges the existing use of Locus as a recreational campground is established by the grant of the 1968 Special Permit. To the extent Indianhead relies on the protection it has under that zoning relief, this record is inadequate. The record does establish that the 1968 Special Permit allows for the use of Locus as "trailer park." The Bylaw did not include "recreational campground" as a use category until the Town adopted an amendment to the Bylaw in 1982. Importantly, that amendment allows "recreational campground" as a use allowed by special permit under Section 205-31. Indianhead does not hold a special permit under this amended Bylaw, nor has it ever held such a special permit. On the record now before the court, Indianhead has not established that its current use of all of Locus conforms to the current Bylaw, or that it is allowed by special permit or otherwise.

Whatever the current status of the nonconforming use may be, it is this court's opinion that the proposed uses at Locus likely would require, at a minimum, a "finding" by the Board, required by Bylaw § 205-25(A)(3), and G. L c. 40A, § 6, in which the Board finds expressly that the Proposed Use would not be substantially more detrimental that the existing use. The current state of the record leaves too many factual questions undetermined.

For the foregoing reasons, Plaintiff's motion for summary judgment is DENIED, and summary judgment in favor of the Town is ALLOWED. The court is persuaded that summary judgment should issue in favor of the Town on this record, even though the record would not provide an adequate foundation for a ruling in Indianhead's favor. Judgment of dismissal will issue based on this court's conclusion that Indianhead's complaint fails to state a claim for which relief can be granted under G. L. c. 240, §14A.

By joint motions received January 27, 2017, the parties to the three related actions before this court asked the court to consolidate them and also asked the court to extend the discovery period set for this case and the others, if consolidated, to 60 days after the date on which the order on summary judgment issued. The Motion for Consolidation was denied, but the motion to extend the discovery period was allowed. In view of the dismissal ordered above, the issue is moot with respect to this case, but applies to 15 MISC 000285 and 16 MISC 000727, if the parties intend to proceed with those cases in view of this order. An entry will be made on the dockets of the two related cases extending the discovery period to March 31, 2017.

So ordered.


[Note 1] The Town filed a motion to strike, pursuant to Mass. R. Civ. P. 56(e), sections of the affidavit of Richard Churchill, the president of Indianhead Realty, Inc., and several exhibits attached to the affidavit of Plaintiff's Attorney, John Danehey. The Town also moved to strike many of Indianhead's proposed undisputed facts as immaterial in an action under G. L. c. 240, § 14A, or because they are statements of law or opinion. The court does not need to rule on these motions, given its disposition of this motion.

[Note 2] Sarah Ann Mahoney, William J. Lawrence, Judith M. Quinn, and Donald P. Quinn, Individually, and as Trustee of Ellisville Hill Trust.

[Note 3] Indianhead claims use of Locus as a "recreational campground" was authorized by the 1968 Special Permit. The Town disputes this fact, stating the 1968 Special Permit authorized a "trailer park" use, which is supported by the record.

[Note 4] Under Bylaw § 205-18, a "zoning permit" application is required for all excavations in excess of ten cubic yards and is a necessary prerequisite to the issuance of a building permit.

[Note 5] Bylaw § 205-40 refers to the Rural Residential (RR) district in which Locus is located. "Sand and gravel quarries and similar extractive industries, subject to § 205-18," and § 205-40(D)(3), and "recreational campgrounds" under Section 205-40(D) are included within the list of "special permit uses subject to environmental design criteria" [which includes § 205-40(D)(1)].

[Note 6] Section 205-18 refers to "Natural features conservation requirements." § 205-18(B)(1) outlines the requirements and procedures for the Commissioner's review of applications under this section.

[Note 7] Bylaw § 205-25 addresses nonconformities. Under Section 205-25(A)(3) "a preexisting nonconforming structure and/or use may be extended, altered, constructed, reconstructed, enlarged and/or moved upon issuance of a special permit by the Board of Appeals based upon a finding that the aforesaid shall not be substantially more detrimental than the existing nonconforming structure and/or use to the neighborhood."

[Note 8] Sections 205-18(F) and (G) refer to the "Excavation of materials" and "Conditions of excavation," respectively.

[Note 9] Indianhead Realty, Inc. v. Members of Zoning Bd. of Appeals of the Town of Plymouth, 14 MISC 486199, filed September 2014. As previously noted, there is a second related case, Indianhead Realty, Inc. v. Members of the Zoning Bd. of Appeals of the Town of Plymouth, Land Court 16 MISC 000727 (filed December 2016).