ATTLEBORO SAND & GRAVEL CORP. v. THE CITY OF ATTLEBORO

I. INTRODUCTION

This case is one of a series of three cases filed by Plaintiff Attleboro Sand & Gravel Corporation ("ASG") against the City of Attleboro (the "City") involving ASG's efforts to develop a bituminous concrete facility on land it owns in Attleboro's Industrial Business Park ("IBP") zoning district. The ultimate dispute centers on whether a bituminous concrete facility is a use permitted under the Attleboro Zoning Ordinance as of January 21, 2013, the date on which the Attleboro Planning Board endorsed a plan of ASG's land as "Approval Under the Subdivision Control Law Not Required" ("ANR"), thereby commencing a three-year zoning freeze, exempting the land shown on the endorsed plan from changes in the use regulations applicable to such land.

ASG did not apply for a building permit for a bituminous concrete facility within the three-year zoning freeze period. Instead, in September, 2014 – some fourteen months before the zoning use freeze was due to expire – ASG filed its first action in Land Court, seeking declarations under G.L. c. 240, § 14A whether (i) "use of a certain parcel of its land for operation of a bituminous concrete production plant is a permitted use under the Zoning Ordinance of the City of Attleboro" and (ii) "the Prohibited Use and Performance Standards provisions of the Zoning Ordinance are unlawful" (the "§ 14A action"). [Note 1] The City answered the Complaint in the § 14A action, denying that such use is permitted and that said Standards are unlawful.

Then, in June 2015, while the § 14A action was proceeding, and during the original three-year zoning freeze period, the City amended its Zoning Ordinance to expressly prohibit use of land in the IBP district for bituminous concrete facilities. In response, ASG filed the instant action on November 30, 2015, seeking a declaratory judgment that, pursuant to the provisions of G.L. c. 40A § 6, ¶ 8, the expiration of the three-year zoning use freeze has been tolled by the litigation in the § 14A action—such that the 2015 amendment expressly prohibiting bituminous concrete facilities would remain inapplicable to ASG's land during the pendency of the § 14A action, so long as ASG ultimately prevails in that action. [Note 2]

A Pre-trial conference was held in this case on April 11, 2016. The parties submitted their respective Pre-trial Memoranda of Law, Proposed Findings of Fact, and Proposed Rulings of Law on June 20, 2016. The trial was held on June 27, 2016. ASG called one witness: Gerard Lorusso, an officer and director of ASG. The City called two witnesses: Douglas Alan Semple, the Building Commissioner for the City, and Gary Aryassian, the Director of Planning and Development for the City. The parties stipulated to thirteen agreed facts and nine agreed exhibits at trial. On July 26, 2016, the transcript of the trial was filed and, at that time, the court took the matter under advisement.

Now, for the reasons set forth herein, I find that the three-year zoning freeze triggered by the January 13, 2013 endorsement of ASG's ANR plan has been tolled by the filing of the G.L. c. 240, § 14A action provided that final adjudication of said action is in favor of ASG, but that such tolling applies only to the lots or portions of lots shown on the ASG ANR Plan that are located in the IBP District.

II. FINDINGS OF FACT

Based on the pleadings, the parties' statement of agreed facts, the agreed exhibits, the trial testimony, and my assessment as trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues:

1. Attleboro Sand & Gravel Corp. ("ASG") is a corporation duly organized under the laws of the State of Rhode Island, with its principal place of business and mailing address at 3 Belcher Street, Plainville, Massachusetts.

2. ASG owns approximately 187 acres of land in Attleboro, Massachusetts, with a street address of 125 Tiffany Street (the "ASG Land"). The majority of the ASG Land is situated in the Industrial Business Park ("IBP") district.

3. On January 14, 2013, ASG filed an application with the Attleboro Planning Board, seeking endorsement of a plan of the ASG Land as "Approval Under the Subdivision Control Law Not Required" ("ANR") pursuant to G.L. c. 41, § 81P.

4. On January 23, 2013, the Attleboro Planning Board endorsed the plan of the ASG Land as ANR (the "ASG ANR Plan").

5. The ASG ANR Plan shows seven (7) ASG-owned lots, two of which appear to be solely in the Single Residence district; one of which is partially in the IBP district and partially in the Single Residence district; one of which is partially in the IBP district, partially in the Single Residence district, and partially in the Industrial district; and two of which appear to be solely in the IBP district.

6. On the date the ASG ANR Plan was endorsed, the Attleboro Zoning Ordinance listed "Processing and Treating of Raw Materials" and "Light Manufacturing, Assembling and/or Processing of Manufactured Products" as two of the uses expressly permitted by right in the IBP district, subject to IBP Performance and Design Standards. "Heavy Manufacturing" is a prohibited use in the IBP district. The Zoning Ordinance did not list "Bituminous Concrete Plant" or "Bituminous Concrete Facility" either as specifically permitted uses or as specifically prohibited uses in any district.

7. On September 16, 2014, ASG filed a complaint in the Land Court in 14 MISC 486245, seeking a determination, pursuant to G.L. c. 240, § 14A, that a certain parcel of its land may be used for a bituminous concrete production facility under the Attleboro Zoning Ordinance then in effect (the § 14A action).

8. ASG has never sought local permits to operate a bituminous concrete facility on their IBP-zoned land, and did not communicate with the Building Commissioner or other City official(s) about its contemplated bituminous concrete facility prior to filing its § 14A action.

9. In its October 7, 2014 Answer to the Complaint in the § 14A action, the City denied that a bituminous concrete facility was a permitted use in the IBP District under the Zoning Ordinance then in effect.

10. On June 2, 2015, the Attleboro City Council voted to amend the Zoning Ordinance to expressly prohibit bituminous concrete/asphalt plants in the IBP District. The amendment became effective upon approval of the Mayor on June 4, 2015.

III. DISCUSSION

There is no dispute here that endorsement of the ASG ANR Plan triggered a three-year zoning freeze under G.L. c. 40A, § 6, ¶ 6, exempting the land shown on said Plan from any changes in use regulations during that three-year period. What is at issue is whether ASG's filing and prosecution of a G.L. c. 240, § 14A declaratory judgment action has tolled the running of ASG's zoning freeze pursuant to G.L. c. 40A, § 6, ¶ 8. Resolution of that issue requires a determination, in turn, on the question of whether, in light of the plain language of ¶ 8, and the recognized purpose of § 6 statutory plan freezes, a landowner may unilaterally suspend the running of a plan freeze by bringing an action under G.L. c 240, § 14A – an action which, by its nature, does not require the existence of any controversy. As explained below, I answer this question in the affirmative, and further conclude that whereas ASG's § 14A action asserts claims relative to use of lots shown on an endorsed ANR plan, such action is "litigation" which can operate to extend ASG's zoning freeze pursuant to ¶ 8 of G.L. c. 40A, § 6. Said ¶ 8 provides:

In the event that any lot shown on a plan endorsed by the planning board is the subject matter of any appeal or any litigation, the exemptive provisions of this section shall be extended for a period equal to that from the date of filing of said appeal or the commencement of litigation, whichever is earlier, to the date of final disposition thereof, provided final adjudication is in favor of the owner of said lot.

(Emphases added).

In context, ¶ 8 directly follows three paragraphs addressing the statutory zoning freezes triggered by the submission and endorsement of two types of plans under the subdivision control law, G.L. c. 41, §§ 81K-81GG – i.e., plans submitted for subdivision approval under G.L. c. 41, §§ 81-S and 81-U, and plans submitted under G.L. c. 41, § 81-P for planning board endorsement that the subdivision control law does not apply (so-called ANR plans or 81-P plans). The statutory zoning freeze for subdivision plans is addressed in the fifth and seventh paragraphs of G.L. c. 40A, § 6. Pertinent to ASG's ANR Plan is the sixth paragraph of G.L. c. 40A, § 6, which exempts the land shown on a plan submitted for ANR endorsement from any changes in applicable use regulations between the time of submission of the ANR plan and its endorsement, and then for three years after the endorsement. [Note 3]

The Massachusetts appellate courts have, on a number of occasions, explained the legislative intent underlying the G.L. c. 40A, § 6 zoning freeze provisions relative to land shown on subdivision and ANR plans. "[T]he intent of the statute was to protect landowners and developers from the practice in some communities of adopting onerous amendments to the zoning by-law after submission of a preliminary plan which is opposed by segments within the community." Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640-41 (2000) (internal quotation marks omitted). In Heritage Park Dev. Corp. v. Southbridge, the Supreme Judicial Court highlighted the "broad protection to developers" afforded by § 6, ¶ 7, noting that the "statutory zoning freeze provides landowners with protection from amendments to zoning laws that would unpredictably and unfairly burden the development of their land." 424 Mass. 71 , 76 (1997); see also Kindercare Learning Centers, Inc. v. Town of Westford, 62 Mass. App. Ct. 924 (2004) (stating that the "zoning freeze was intended by the Legislature to insulate developers from zoning changes"). Furthermore, the broad zoning freeze protection afforded landowners/developers has been interpreted to permit a developer to "invoke a zoning freeze [even] with inconsistent subdivision filings, or with plans filed with no intent other than to invoke the freeze." See Heritage Park, supra at 76 (citing Long v. Board of Appeals of Falmouth, 32 Mass. App. Ct. 232 , 233 (1992) and Patelle v. Planning Bd. of Woburn, 20 Mass. App. Ct. 279 , 284 (1985)).

Bearing in mind these pronouncements as to the broad, protective intent of the G.L. c. 40A, § 6 plan freezes both during the processing and approval phases and following plan endorsement, and applying standard rules of statutory construction, [Note 4] I turn to the relevant language of ¶ 8 to determine whether the scope of the freeze extension provided therein is applicable here.

Paragraph 8 provides for extension of the applicable post-endorsement freeze (i.e., 8 years for a subdivision plan and 3 years for an ANR plan) "in the event any lot shown on" such an endorsed plan is "the subject matter of … any appeal or litigation…." The language of the statute is unambiguous, conspicuously broad, and stated in the imperative. It manifests a legislative intention to extend a plan freeze when any lot shown on an endorsed plan is the subject matter of any litigation. I disagree with the City's arguments that ASG's § 14A action is not the type of litigation contemplated under ¶ 8 because (a) the "subject matter" of ASG's § 14A action is not "a lot shown" on an ANR plan, but rather the interpretation of the City's Zoning Ordinance with respect to uses permitted anywhere in the IBP district; and (b) because the § 14A action does not concern any action taken by municipal officials or others to impede ASG's ability to proceed with use of its land during the freeze period, but rather is a lawsuit voluntarily initiated by the landowner itself.

As to the City's first argument, it must be recognized that "'[t]he primary purpose of proceedings under § 14A is to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it….'" Amberwood Dev. Corp. v. Bd. of Appeals of Boxford, 65 Mass. App. Ct. 205 , 208-09 (2005) (emphasis added) (quoting Hansen & Donahue, Inc. v. Norwood, 61 Mass. App. Ct. 292 , 295 (2004)). [Note 5] Consistent with this statutory purpose, ASG's § 14A action seeks a determination of whether, and to what extent, the Zoning Ordinance allows ASG's IBP-zoned land to be developed and used for a bituminous concrete facility. While ASG's § 14A Complaint does not identify its land as being one or more lots shown on an endorsed ANR plan, ASG's IBP-zoned land is, in fact, shown on the endorsed ASG ANR Plan as several lots and portions of lots. Thus, the § 14A action is manifestly a "litigation," the "subject matter" of which is the use of the IBP-zoned lots shown on an endorsed ANR plan.

That ASG did not first pursue other administrative avenues prior to filing its § 14A action, such as by applying for major site plan review or a building permit, is irrelevant. A plaintiff is not required to exhaust administrative remedies before bringing a G.L. c. 240, § 14A declaratory action. Banquer Realty Co. v. Acting Bldg. Com'r of Boston, 389 Mass. 565 , 573 (1983) ("In the case of G.L. c. 240, § 14A, the Legislature has determined that resort to local zoning procedures is not a necessary prerequisite to obtaining judicial relief."). Even had ASG pursued such administrative routes, that would not have hindered its independent right to seek a declaratory judgment under G.L. c. 240, § 14A as to the application, interpretation, or validity of the City's Ordinance relative to ASG's land. See Cohen v. City of Somerville, 87 Mass. App. Ct. 1112 , *3 & n. 10 (Rule 1:28 Decision), review denied, 472 Mass. 1107 (2015) ("The plaintiffs' decision to apply for a building permit and a special permit did not alter their right to seek a declaratory judgment under G.L. c. 240, § 14A.").

Here, ASG initiated its G.L. c. 240, § 14A litigation to determine whether its IBP-zoned land could be used for a bituminous concrete facility under the Zoning Ordinance then in effect. ASG contends that, as a result of communications with City officials, including the Building Commissioner, it came to understand that the City would not view a bituminous concrete facility as a permitted use in the IBP district. It insists that its motive in filing the § 14A action fourteen months before the expiration of the three-year freeze period, was to avoid the hassle and expense of submitting what it considered to be a futile major site plan application to the City's Planning Board. [Note 6]

Although the evidence at trial did not support ASG's claim that its professed understanding was the result of communications with City officials (or indeed any dispute with City officials) concerning whether a bituminous concrete facility could be located on the ASG land, relief under § 14A does not require an actual controversy. As the Supreme Judicial Court has recognized, "[t]he evil to be remedied [by G.L. c. 240, § 14A,] is a situation where someone may be forced to invest in land and then subsequently find out that there are restrictions." Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757 , 763 (1985). Avoiding costly investment in a potentially futile major site plan application is precisely what ASG is permitted to do by the filing of the § 14A action. Moreover, even if ASG's sole or primary motive in obtaining the ANR endorsement and then filing the § 14A action was to obtain and then extend a zoning freeze, motivation is not a relevant factor here as the law does not prevent such tactics. [Note 7]

Nor does the case law cited by the City persuade me to ignore the unambiguous term "appeal or other litigation" by reading into the statute an exclusion of litigation voluntarily initiated under G.L. c. 240, § 14A by the owner of the land subject to the freeze. The City argues that none of the cases where post-endorsement litigation has been found to result in a tolling of the zoning freeze involve a situation, such as presented in this case, where the landowner instituted the litigation, unprompted by any actual controversy about the right to use or build on the subject lot. The city cites Cape Ann Land Development v. City of Gloucester, 371 Mass. 19 , 24 (1976) (finding that a landowner's appeal of a building permit denial during the three-year zoning use freeze tolls the running of the freeze period); Falcone v. Zoning Bd. of Appeals of Brockton, 7 Mass. App. Ct. 710 , 712 (1979) (holding that landowner's submission of an application for a building permit one day before the expiration of the freeze is insufficient, standing alone, to toll the freeze); and Pasqualino v. Bd. of Appeals of Wareham, 14 Mass. App. Ct. 989 , 990 (1982) (rescript) (noting that a zoning freeze "may be tolled if litigation, appeals or actions by municipal officials make the legality of the construction or plans questionable so as to impede work on or completion of the project," but that "impediments . . . which arose because of financial difficulties experienced by the developers, must be characterized as personal and do not warrant a tolling of the [freeze period]").

While it is true that these cases interpreting the ¶ 8 tolling provision do not establish a landowner's right to extend a zoning freeze by bringing a G.L. c. 240, § 14A complaint where there has been no attempt by municipal officials or others to impede a development project, the absence of binding case law addressing this particular situation does not provide definitive guidance, one way or another. [Note 8] Indeed, it may be simply fortuitous that no pertinent cases have reached the courts.

IV. CONCLUSION

For the reasons set forth above, I conclude that, pursuant to G.L. c. 40A, § 6, ¶ 8, the filing of ASG's § 14A action on September 16, 2014 suspended the running of the three-year statutory zoning freeze established by endorsement of ASG's ANR Plan on January 21, 2013, with respect to the lots or portions of lots shown on said Plan as located within the IBP zoning district, until final disposition of said § 14A action, provided that adjudication is in favor of ASG.

Judgment shall enter accordingly.