Following a trial that tarred multiple parties with credible evidence of conflicts of interest, this case boils down to one question: by endorsing a revised plan submitted by defendant The Party Trust that showed its 12.5-acre project site (the "Site") carved into separate lots, did the Halifax Planning Board (which had requested the revised plan) condition its approval of that plan on the Trust actually creating the lots? This Court says yes.
In 2005, defendants Corrie S. Merritt and Edward Johnson, the Trustees of The Party Trust, purchased the Site, which is west of Elm Street in Halifax, Massachusetts. The Site is shaped like a pork chop. Its thin extension reaches west to Elm Street.
Starting in 2005, the Trust tried to develop the Site. The Trust eventually obtained site-plan approval in 2014 from the Halifax Planning Board, and a special permit from the defendant Halifax Zoning Board of Appeals (the "ZBA") in 2015, to build "Amanda's Estates," a twelve- unit, multifamily condominium complex. Six duplexes made up the proposed condominium.
In November 2016, the Trust applied for four building permits, hoping to build four of the twelve authorized units in Amanda's Estates. The Town's building inspector issued the permits in May 2017. Six days later, plaintiff Gordon C. Andrews who was both an abutter to the Site and the son of the chairman of the Halifax Planning Board -- wrote the building inspector and alleged that the Trust was building Amanda's Estates in violation of Halifax's Zoning By-Law (the "By-Law"). The building inspector (who owned a multifamily development of his own, and had his own issues with the ZBA) denied the enforcement request. In June 2017, Andrews timely appealed to the ZBA both the building inspector's denial of Andrews's May 2017 enforcement request and the inspector's issuance of the four Amanda's Estates building permits. In August 2017, the ZBA denied both of Andrews's appeals.
Mr. Andrews timely sought review of the ZBA's decision in this Court under G.L. c. 40A, § 17. In July 2018, this Court held that the ZBA's written decision didn't meet the requirements of id. at § 15. The Court thus sent the case back to the ZBA. While all this was going on, two of the Trust's principals sold to the son of one of the ZBA's members a parcel right next door to that member's home, at a price well below the parcel's assessed value.
In August 2018, the ZBA issued a decision on remand (the "ZBA's Decision") that again denied both of Mr. Andrews's appeals. (The ZBA member mentioned earlier voted against Andrews and in favor of the Trust.) Andrews timely sought review of the ZBA's Decision. He raised at that point two principal issues. He first contended that Amanda's Estates didn't comply with § 167-10.B of the By-Law. This Court ruled on summary judgment in January 2019 that Andrews was incorrect, and that the building inspector and the ZBA had correctly determined that § 167-12.A of the By-Law, a provision specific to multifamily developments such as Amanda's Estates, supplanted the more general requirements of § 167-10.B.
Mr. Andrews's second argument was that the Trust's 2014 site-plan approval and its 2015 special permit required subdivision of the Site, so that each of six duplexes in Amanda's Estates would stand on its own lot. Andrews contended that the Trust needed to create those separate lots before it could receive building permits. The Court could not resolve that issue on summary judgment, and thus the Court ordered the parties to appear for trial. (Andrews raised a third issue at that time: whether the ZBA "acted with gross negligence, in bad faith or with malice" in issuing its Decision, something that could give rise to an order directing the ZBA to pay Andrews's costs. See c. 40A, §17. The Court set that issue aside, contingent on Andrews prevailing on at least one of his substantive challenges to the ZBA's Decision.)
The Court held a trial on May 28, 30 and 31, 2019. After reviewing the parties' stipulations of fact and the evidence admitted at trial, and having heard the arguments of counsel, the Court FINDS the facts set forth above plus the following:
1. The Trust's efforts to develop the Site prior to 2014-2015 included seeking approval of a definitive subdivision plan for the Site. The Trust filed, but withdrew, at least two such applications, one shortly after buying the Site, and the other in 2010. The Trust employed Webby Engineering Associates, Inc. ("WEA") in connection with the latter application. WEA's project manager for the 2010 application was Steve Kotowski.
2. In May 2014, the Trust applied to the Planning Board for site-plan review of a multifamily development at the Site. The Trust disclosed that its project, Amanda's Estates, would be organized as a condominium.
3. The Trust filed its site-plan review application under § 167-28 of the By-Law. Section 167-28 provides:
No permit shall be granted for any . . . multi-dwelling . . . structure, and [no such structure] shall be constructed . . . except in conformity with a site plan bearing an endorsement of approval by the Planning Board. Said site plan shall show the owner of record, location, zone boundary lines, easements or other legal restrictions, exact location of building(s) on the lot with side, front and rear dimensions, lot dimensions, topography, adjacent public ways, location of off-street parking, lighting, utility systems, surface drainage, traffic flow, location and nature of open spaces . . . , locus plan and other details deemed necessary by the Planning Board. . . .
A. Applicants shall submit an original and nine (9) copies of their site plan to the Town Clerk. . . . Within four (4) days, the Town Clerk shall transmit one (1) copy each to the Planning Board, [seven boards and commissions] and the Board of Selectmen. . . . Within thirty (30) days of filing such application, the review boards and officers shall evaluate the application and the site plan with regard to the conditions and standards set forth in this chapter . . . and shall submit comments to the Planning Board or take any action thereon.
B. The Planning Board shall not act without considering the reports of the review boards and officers unless thirty (30) days form the date of filing have passed without receipt of such reports.
C. The Planning board shall note major recommendations of the review boards and officers in its decision and shall explain any major divergence from such recommendations.
D. Failure of the Planning Board to act within forty-five (45) days of the filing of the application shall be deemed approval of the application and site plan.
. . .
F. The board with ultimate jurisdiction in a given case (i.e., the Planning Board or the [ZBA] which is designated the special permit granting authority for specific specially permitted uses) shall consider any advisory site plan review report in its decision and shall explain any major divergence from that report's recommendations.
G. Site plan requirements are as follows:
. . .
(4) Required information; waivers.
(a) The site plan and any other drawings necessary shall precisely indicate the following:
[1] Area of the site, boundary lines, dimensions of the lot(s), plot and lot numbers from assessors' records, zoning districts, the names of the owner(s) of record and of all abutting owners of record and the North point, two (2) perspective renderings and plan(s) of all buildings and structures.
. . .
[15] Indication of the meeting of any specific requirements established in the Zoning Chapter not already provided for.
H. Site plan review. In considering a site plan, the Planning Board shall seek to assure reasonable use of the site according to the following criteria"
(1) Protection of adjoining premises against detrimental uses of the site during and after construction.
. . .
(6) Residential privacy provided by site and unit layout.
(7) Adequacy of the site for any expansion allowed by applicable density standards.
4. The Trust included with its site-plan review application, which the Trust filed with the Town Clerk, a six-sheet set of plans prepared by WEA dated April 10, 2014 (the "April 2014 Plans"). The first page of the April 2014 Plans showed a road, "Amanda's Way," leading east from Elm Street into the Site, ending in a cul de sac in the center of the Site. Surrounding the cul de sac were six duplexes, each having its own driveway. The first page of the April 2014 Plans depicted the Site as single lot. The first page of the April 2014 Plans also contained six notes labelled "Multifamily Development Notes." Note 1 reads:
TOTAL AREA OF SITE = 12.525± ACRES
TOTAL NUMBER OF ALLOWED UNITS = 12UNITS [sic]
5. As of April 2014, the Planning Board's chairman was Gordon C. Andrews, Sr., the father of plaintiff Gordon C. Andrews, Jr. (This decision will refer to Andrews, Sr. as "Chairman Andrews," and Andrews, Jr. as "Mr. Andrews.") As of April 2014, Mr. Andrews owned 244 Elm Street, which abuts the Site. The April 2014 Plans called out Mr. Andrews's property and named him as its owner. Because Mr. Andrews owned a lot abutting the Site, Chairman Andrews understood that he could not be "involved" (Chairman Andrews's word) with the Board's review of the Trust's site-plan review application.
6. The Planning Board held five public meetings on the Trust's site-plan review application. Those meetings were on June 5, June 19, July 17, August 21 and September 18, 2014.
7. The Trust's representatives at the Planning Board's June 5 and 19, 2014 meetings were Amanda Monti (the daughter of Trustee Merritt; in 2017, she too became a Trustee of the Trust) and Mr. Kotowski. Ms. Monti had experience at that time in residential construction and
management of rental units. Mr. Kotowski was more experienced than Ms. Monti in site design and project engineering issues. Amanda's Estates nevertheless was the Trust and WEA's first multifamily development in Halifax.
8. On July 16, 2014, Charles Seelig, Halifax's Town Administrator, sent a memorandum to the Planning Board, the ZBA and the Town's building inspector (the "Seelig Memorandum"). The Seelig Memorandum discussed Amanda's Estates and a second project, Halifax Trails. The developer of the latter project had an application pending before the ZBA for a special permit to build a multifamily development. Administrator Seelig wrote his memorandum in the normal course of his duties, which included reporting to the Town's Board of Selectmen.
9. The Seelig Memorandum states in pertinent part:
Chapter 167-7(D)2 [of the By-Law] requires that "any multifamily development complex proposed hereunder shall locate each building on an individual lot which shall have continuous frontage on a public or private way". My understanding is that the current edition of the plans before the Planning Board and the Zoning Board of Appeals do not meet this standard and the decision not to have a separate lot for each building was made by the developer and not by either or both of the Boards.
Given the wording of the by-law, the Planning Board's only defensible choice is to deny the site plan for [Amanda's Estates], at least if the proposal remains unchanged. . . .
As far as I know, nothing should prevent the developers from submitting plans to the Planning Board and the Zoning Board of Appeals showing each structure on an individual lot. All the future members of the association (or condominium) could own all the lots in common and, as with Halifax Meadows and Twin Lakes, could own their own individual units.
I recommend that both the Planning Board and the Zoning Board of Appeals recommend that the developers amend their plans to show each structure on an individual lot. . . . If the developers decline to do so, then the site plans and special permits should be rejected for failing to meet the Town's zoning requirements. . . .
I have consulted with [town counsel] about these issues, but the Planning Board, the Zoning Board of Appeals, and the Building Inspector are welcome to contact him.
10. The By-Law provision quoted in the Seelig Memorandum, § 167-7.D(2), reads:
D. Specific use regulations.
. . .
(2) Multifamily development allowable by special permit from the Zoning Board of Appeals in the AR, B and C Districts.
(a) It is required that any multifamily development complex proposed hereunder shall locate each building on an individual lot which shall have continuous frontage on a public or private way. . . .
11. Ms. Monti and Mr. Kotowksi appeared before the Planning Board at its third meeting on the Trust's site-plan review application, held on July 17, 2014. That meeting came one day after Administrator Seelig penned his Memorandum. Notwithstanding his relationship with Mr. Andrews, Chairman Andrews presided at the July 17 meeting. He did not disclose that his son was an abutter to Amanda's Estates. He didn't state on the record of the meeting that he was recusing himself from the Amanda's Estates matter, nor did he file with anyone, before, during, or after the July 17 meeting, a conflict-of-interest disclosure relating to Amanda's Estates and Mr. Andrews.
12. At the July 17, 2014 meeting, Chairman Andrews and another Board member, Mark Millias, told Mr. Kotowski that the Board would not approve the April 2014 Plans unless the Trust showed each duplex building on its own lot. Chairman Andrews and Mr. Millias based their statements upon the Seelig Memorandum, and they mentioned § 167-7.D(2) of the By-Law.
13. The Planning Board's statements surprised Mr. Kotowski. He openly admitted at the July 17 meeting, with embarrassment, that he was unaware of § 167-7.D(2). He told the Board that the Trust would have to go "back to the drawing board," literally, to revise the Amanda's Estates plan.
14. The Planning Board held its next meeting on the Amanda's Estates site plan on August 21, 2014. Chairman Andrews participated in the part of the meeting that concerned Amanda's Estates. Chairman Andrews still had not disclosed his son's interest in the application.
15. Ms. Monti and Mr. Kotowski did not attend the August 21, 2014 meeting of the Planning Board. Instead, the only representative of the Trust who appeared at the meeting was Joseph Webby, one of WEA's principals. Webby is a licensed professional land surveyor. He had prepared and stamped with his professional seal the April 2014 Plans.
16. At the August 21, 2014 meeting, Chairman Andrews told surveyor Webby that the Amanda's Estates duplexes had to be shown on separate lots, as required (or so Chairman Andrews believed) under § 167-7.D(2) of the By-Law. Chairman Andrews read that portion of the By-Law aloud. Surveyor Webby agreed to revise the Amanda's Estates site plan to show each building on a separate lot.
17. The Planning Board held its next site-plan review meeting for Amanda's Estates on September 18, 2014. Chairman Andrews was absent from this meeting, as were Ms. Monti and Mr. Kotowski. The Trust's only representative at the meeting was surveyor Webby.
18. Shortly before the September 18, 2014, meeting, the Trust had delivered to the Planning Board a September 14, 2014 revision to the Amanda's Estates plan (the "September 2014 Plans"). Surveyor Webby prepared and stamped the September 2014 Plans.
19. Sheet 1 of the September 2014 Plans no longer showed the Site as a single parcel. Instead, Sheet 1 showed the Site divided by solid lines into six lots, labelled Lots A-F, each no smaller than 42,000 square feet, plus a "Parcel G," a parcel containing Amanda's Way, a drainage basin, and wetlands. Sheets 2 and 6 outlined the boundaries of the Lots and the Parcel in the same manner as Sheet 1. The lines separating Lots A-F and Parcel G on all three sheets were solid, just like the lines that showed the Site's boundaries with abutting properties. At trial, surveyor Webby described the lines on the September 2014 Plans separating Lots A-F and Parcel G as "lot lines." The September 2014 Plans also contained no notes that referred to or elaborated upon the lines separating Lots A-F and Parcel G, especially notes that would have told the reader that the lines were something other than lot lines. Moreover, on Sheet 1 of the September 2014 Plans, WEA had included below the label for Parcel G this language: "NOT TO BE CONSIDERED A BUILDABLE LOT." No similar notation appeared in connection with the labels on the same Sheet for Lots A-F.
20. At the September 18, 2014, meeting, surveyor Webby made a presentation about September 2014 Plans. He commented that the lots shown on the September 2014 Plans would require variances from the By-Law's frontage requirements. (In Halifax, the ZBA is responsible for granting variances.) Webby never told the Planning Board that the September 2014 Plans were only "yield" plans -- that is, plans demonstrating that Amanda's Estates duplexes could be positioned on lots meeting the By-Law's minimum-acreage requirements. The September 2014 Plans don't state that they are "yield" plans.
21. The Planning Board endorsed the September 2014 Plans on September 18, 2014 (the "Site Plan Approval"). Chairman Andrews was not among the endorsers.
22. The Planning Board communicated to the Trust the Site Plan Approval by letter to Ms. Monti dated September 22, 2014. The Board sent a copy of its letter to the Halifax Town Clerk and the Town's Board of Selectmen. That letter states in part:
The Planning Board grants this petition with the following acknowledgments:
* The road is to be and remain as a private way and not maintained by the Town for any maintenance of plowing, sanding, maintenance of the road, parking areas, landscaping, drainage structures and devices as well as utilities and other infrastructure of the commonly owned property of the condominium association.
* Subject to all Order of Conditions, Approvals, Special Permits, Variances and Requirements are met from all Town Departments.
Special Permits for Multifamily development are allowed by Special Permit from the Zoning Board of Appeals in the AR, B and C Districts. Variances to any requirements are sought through the Zoning Board of Appeals along with a Special Permit for Multi-Family developments as set out in the Zoning Chapter 167-7(D)(2).
23. The Planning Board's September 22, 2014 letter did not note any divergence in the Site Plan Approval from what Town Administrator Seelig had recommended in the Seelig Memorandum.
24. The Town's current building inspector, Robert Piccirilli, was a member of the Planning Board at the time it first considered the Amanda's Estates site-plan review application. Mr. Piccirilli was absent from the Board's June 19, July 17, and August 21, 2014 meetings on the application. He attended the meeting at which the Board voted to endorse the September 2014 Plans, and he is one of the Plans' endorsers. He also is shown as the author of the Board's September 22, 2014 letter, described in ¶ 22 above.
25. On November 5, 2014, the Trust applied to the ZBA for a special permit for Amanda's Estates.
26. Section 167-21.C of the By-Law provides in part: "All applications for . . . special permits . . . shall be made, in writing, on appropriate forms furnished by the Board."
27. Mr. Kotowski prepared pages 1-3 and 5 of the Trust's special-permit application (which the ZBA numbered as #823) using the ZBA's prescribed form. He noted in the application that the Trust was filing for a special permit under § 167-12.A of the By-Law. Application #823 didn't mention § 167-7.D of the By-Law, the provision mentioned in the Seelig Memorandum. Application #823 also didn't request any variances from the By-Law.
28. Section 167-21.C of the By-Law further provides: "When petitioning for a . . . special permit, the applicant shall file plans for all buildings that are to be built. If the . . . special permit is granted, these plans must be followed unless the Board of Appeals consents to changes in the original plans." The Trust submitted with Application #823 the September 2014 Plans.
29. The ZBA conducted public hearings on Application #823 on two nights. The first hearing was on December 8, 2014. Appearing for the Trust were Trustee Merritt, Ms. Monti, surveyor Webby and Mr. Kotowski. Kotowski presented the September 2014 Plans to the ZBA. Kotowski described Amanda's Estates as being a multifamily condominium project. Kotowski told the ZBA that the project would have a private road, Amanda's Way, that would be the responsibility of the condominium association, and that individual units would be the responsibility of their purchasers. During the hearing, someone noted that the Planning Board had requested that each building be on its own 40,000 square-foot lot and have 50 feet of frontage.
30. Mr. Kotowski testified at trial that, coming into the ZBA's public hearings, the Trust and WEA thought that they could convince the ZBA that § 167-7.D didn't apply to Amanda's Estates. The Trust offered no evidence at trial, however, that it attempted at the December 8, 2014 hearing to engage in a discussion with the ZBA about anything having to do with § 167-7.D or modifying the terms of the Site Plan Approval.
31. Plaintiff Andrews attended the December 8, 2014 ZBA hearing. He expressed concern about the location of Amanda's Way, its sidewalks, and the condition of the buffer between Amanda's Way and his property. In response to Mr. Andrews's concerns, the Trust submitted to the ZBA a revised Sheet 2 of the September 2014 Plans. Revised Sheet 2 showed Amanda's Way as further away from Andrews's property. Revised Sheet 2 showed the project's proposed sidewalk on the other side of Amanda's Way from the Andrews property, and provided more details about buffers along Amanda's Way. But Revised Sheet 2 still depicted the boundaries of Lots A-F and Parcel G in the same manner as original Sheet 2, with solid property lines.
32. The ZBA held its second public hearing on Application #823 on January 12, 2015. The Trust's sole representative was Mr. Kotowski. He discussed Revised Sheet 2 and other subjects, but the Trust offered no evidence at trial that the Trust attempted at the January 12, 2015 hearing to engage in a discussion with the ZBA about anything having to do with § 167-7.D or modifying the terms of the Site Plan Approval.
33. Following Mr. Kotowksi's presentation, the ZBA closed the public hearing on Application #823 and immediately voted to grant the Application, based on the September 2014 Plans and Revised Sheet 2 ("Special Permit #823"). The ZBA issued its decision on January 20, 2015. The decision referenced "the submitted plan" and Revised Sheet 2. The decision also quoted Application #823's language that the Trust was seeking "a Special permit in accordance with the Zoning By-laws of the Town of Halifax under Section 167-12.A, Multifamily Development under Density Regulations for Specific Uses." The ZBA didn't note in its decision any "divergence" from the Site Plan Approval, other than Revised Sheet 2. The ZBA's decision and Special Permit #823 also didn't mention § 167-7.D.
34. No one (including the Trust) appealed the Site Plan Approval or Special Permit #823. The Trust recorded the latter at the Plymouth County Registry of Deeds (the "Registry") on April 17, 2015. The day before, the Planning Board approved Revised Sheet 2 as a minor change to the Site Plan Approval. Mr. Piccirilli participated in the Board's approval of Revised Sheet 2.
35. Following receipt of Special Permit #823, the Trust (with WEA's assistance) prepared several plans that don't depict Lots A-F as separate lots. Those plans include (a) plans of Amanda's Estates dated July 5, 2016 (Trial Exhibit 20, recorded at the Registry on July 22, 2016, and calling Lots A-F "Phases I-VI"); (b) a plan of Amanda's Estates dated July 25, 2016 (Trial Exhibit 15, referring to Lots as "Phases"); (c) an As-Built Sanitary System plan, dated October 3, 2016 (Trial Exhibit 16, stamped by Robert DeBenedictis on July 24, 2017, referring to Lots as "Phases"); and (d) Phase I and IV Foundation As-Built Plot Plans, dated June 6, 2017 (Trial Exhibit 17). The only plan introduced into evidence at trial that showed the Lots (as opposed to Phases) separated by anything other than a solid line is a Condominium Plan of Amanda's Estates Condominiums dated December 14, 2017, plans that were prepared after Mr. Andrews filed this lawsuit.
36. On November 16, 2016, the Trust filed with the Halifax Building Department two applications for building permits. Each application referenced Special Permit #823. By this time, Mr. Piccirilli was no longer on the Planning Board; instead, he was Halifax's building inspector and head of the Building Department.
37. Section 167-19.A of the By-Law provides in part: "No building shall be constructed . . . and no use of a building or land in connection with building shall be begun . . . without a permit having been issued by the Building Inspector. No permit shall be issued until such construction, alteration or use as proposed complies in all respects with the provisions of this chapter or with a decision rendered by the Board of Appeals "
38. Section 167-21.A(2)(b) of the By-Law provides: "All building designs and site plans submitted to the Building Inspector for a special permit following approval by the special permit granting authority shall be identical to the designs and plans submitted at the time of the special permit plan submission."
39. Section 167-21.A(2)(c) of the By-Law provides: "A special permit issued hereunder is only an authorization for a specific use with stated conditions and does not exempt that particular parcel of land from other conformance with the [By-Law]. . . ."
40. Building Inspector Piccirilli couldn't recall at trial what plans he reviewed in connection with the Trust's building-permit applications. The Court finds that at no time prior to May 16, 2017 did the Trust furnish Piccirilli with proof that the Trust had turned Lots A-F into separate lots.
41. Building Inspector Piccirilli nevertheless issued the requested building permits on May 16, 2017. Each referenced Special Permit #823.
42. On May 22, 2017, Mr. Andrews asked Mr. Piccirilli to enforce the By-Law against Amanda's Estates. Andrews's appeal argued, among other things, that the Trust had not yet complied with § 167-7.D(2)(a)'s requirement pertaining to creation of separate lots.
43. Mr. Piccirilli denied Mr. Andrews's enforcement request by letter dated May 24, 2017. Piccirilli's denial letter didn't mention the § 167-D(2)(a) issue.
44. On June 12, 2017, Mr. Andrews appealed to the ZBA both Mr. Piccirilli's enforcement-request denial and his issuance to the Trust of the four Amanda's Estates building permits. The ZBA held a public hearing on the two Andrews appeals on July 10, 2017 and August 14, 2017. Piccirilli testified at trial, but he did not discuss his role at the July 10 or August 14 hearings. He did testify, however, that as of 2017, he owned a multifamily development in Halifax. The Town has restricted use of that development, owing in part to a claim that the development does not comply with § 167-7.D(2)(a). Andrews argued at trial that Piccirilli thus had in August 2017, and continuing to the present, a stake in the ZBA's interpretation of § 167-7.D(2)(a). Piccirilli's interests, whatever they may be, have no bearing on this Court's conclusions of law.
45. By decision dated August 22, 2017, the ZBA denied both of Mr. Andrews's appeals. Andrews appealed the ZBA's decision to this Court on September 9, 2017.
46. In 2018, while this case was pending, Ms. Monti (who by that time was a Trustee of the Trust) and Trustee Johnson sold a property to the son of one of the members of the ZBA, Kozhaya Nessralla. The property abutted Mr. Nessralla's property at 69 Summit Street in Halifax, where Mr. Nessralla and his son lived. The assessed value of the property was $22,300. Mr. Nessralla's son bought the property for $1,000. The trial record doesn't disclose when negotiations over the sale began, if they were still underway as of July 2018 (when this Court remanded this case to the ZBA), or if they were continuing as of August 2018 (when the ZBA, including Mr. Nessralla, issued the ZBA's Decision after remand). The trial record also doesn't disclose Mr. Nessralla's knowledge of or role in the negotiations, or whether he disclosed them in accordance with the Commonwealth's conflict-of-interest laws.
47. In the spring of 2019, Mr. Andrews became one of Halifax's selectmen.
*.*.*
Mr. Andrews has appealed the ZBA's Decision under c. 40A, § 17. A court may overturn a zoning board's decision under § 17 only if the court holds that the decision is arbitrary, capricious or unreasonable, or beyond the scope of the board's authority. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638-639 (1970). The questions for trial were (a) whether the Site Plan Approval required subdivision of the Site prior to the issuance of building permits for Amanda's Estates, and (b) whether Special Permit #823, independently of any requirements of the Site Plan Approval, required subdivision of the Site prior to the issuance of building permits for Amanda's Estates. After trial, the Court answers the first question "yes," and while the answer to the second question is "no," Special Permit #823 relies on the Site Plan Approval. Thus, whatever the Site Plan Approval requires, the Special Permit requires too. This Court thus must reverse the ZBA's Decision.
In Monogram Residential 22 Water Street Project Owner v. Alexander, 25 LCR 550 (2017), a developer that applied for a planned-unit-development special permit, one subject to c. 40A, § 9, stated in a required application narrative that the developer would not install "uplighting" or other lighting of the screens and roof of a proposed twelve-story building. The developer subsequently received the special permit, which didn't contain any conditions pertaining specifically to uplighting. The developer sold the permitted project to Monogram, which constructed the permitted building with uplights. Zoning officials ordered Monogram to remove the uplights, claiming that Monogram lacked authorization to install and operate them.
The issue in Monogram was whether Monogram's special permit incorporated the developer's narrative by reference. This Court reviewed the cases that discuss how one determines a special permit's enforceable terms and conditions, and held that, for various reasons, Monogram's special permit contained no authorization for uplights. Do the standards identified in Monogram for enforceable permit conditions apply to site-plan approvals too? No court appears to have reached the issue, but Lussier v. Zoning Board of Appeals of Peabody, 447 Mass. 531 , 535 (2006), identifies the value of having clear permit conditions: they "'apprise both the applicant and interested landowners of what can and cannot be done with the land.'" Id., quoting P.J. Rohan, 8 Zoning and Land Use Controls § 43.03[2] (2005). Monogram saw the same value in extending Lussier's requirements to special-permit decisions. See Monogram, 25 LCR at 553; see also Franchi v. Salvidio, 3 LCR 133 (1995) (same).
It's likewise valuable to extend Lussier's requirements to site-plan approvals, particularly those of the type granted in this case. The Site Plan Approval here is an extension of the Trust's need to obtain a special permit for its multifamily development. See By-Law, § 167-28. While cases have long observed that the Zoning Act is silent about site-plan approvals, "it is by now clear that it is appropriate for an ordinance or bylaw, or even for the rules of [a special permit granting authority], to require review and approval of a site plan in connection with an application for a type of special permit that is authorized by statute." Christopher Foster et al., "Special Permits," Massachusetts Zoning Manual 8-29 (MCLE 6th Ed. 2017). It makes no sense for a site-plan approval that's supposed to lead to the issuance of a clear and definite special permit to be unspecific about details that the approving board considers important. Thus, in order to be enforceable, a condition in a site-plan approval that's a part of a municipality's special-permit process needs to meet the same "specificity" rules as conditions in special permits.
So what is one to make, under Monogram, of the Trust's Site Plan Approval? The Court finds that the Planning Board wanted the Trust to locate each duplex in Amanda's Estates on its own lot. That was the purpose of the Board's instructions to Mr. Kotowski at the Board's July 17, 2014 meeting and again to surveyor Webby at the Board's August 21, 2014 meeting. The Court finds that the Board did not issue those instructions merely to see a "yield plan," or to satisfy itself that twelve units could be sited on twelve acres (or six duplexes sited on sufficiently sized lots). Rightly or wrongly, the Board followed the advice of the Seelig Memorandum, which advised the Board that it needed to require the Trust to locate each of its duplexes on its own lot.
But under Monogram, a board's motives for granting a permit don't control whether the board has imposed, via the permit, an enforceable condition. What counts is what's in the permit (or in this case, the "approval"): in order for a board to impose a condition via a permit, the permit must either state the condition expressly, or impose the condition by reference, provided in both instances that the board's "intentions are clear. A [board] runs into trouble using 'incorporated' items only if it fails to designate them, without ambiguity, as conditions." Monogram, 25 LCR at 553 (citations omitted). By Monogram's standards, the Trust's Site Plan Approval is sufficiently clear that it is conditioned on the siting of each duplex on its own legal lot. That condition is clear from the endorsed Approval's depiction of Lots A-F as separate lots, divided by solid lines (as the April 2014 and September 2014 Plans portrayed every property boundary). The Trust's agent, surveyor Webby, knowingly drew lines on the latter plan to show Lots A-F as separate lots. Had he and the Trust wanted to depict Lots A-F as being on the same lot, they could have reused the April 2014 Plans, which showed no lines within the interior of the Site, or they could have used dashed lines within the Site's interior (see the plans described in Finding No. 35 above).
There is no unfairness in holding the Trust to what it depicted on the September 2014 Plans. Section 167-28 lists the required elements of a site plan, and mandates that it show "easements or other legal restrictions, exact location of building(s) on the lot with side, front and rear dimensions, [and] lot dimensions," as well as all "boundary lines. . . ." Depicting these and other required plan elements enables the Planning Board to determine whether the applicant's proposal meets (or will meet) the By-Law's requirements. See By-law, § 167-28.G(4)(a)[15].
The applicant gets something in return for drawing a specific plan: should the Board not act within 45 days of the filing of the site-plan review application, the application and site plan "shall be deemed approv[ed]." Id. at § 167-28.D. As Monogram, 25 LCR at 553-554, observes, when a bylaw allows a developer to claim constructive approval of whatever the developer shows on a plan filed with a municipal board, there's no unfairness in holding that developer to the same plan if the board actually endorses or otherwise approves it.
This Court thus concludes that the Trust's Site Plan Approval, for the moment, requires the Trust to create individual lots for each approved duplex in Amanda's Estates. For its part, the ZBA issued Special Permit #823 based on the endorsed Site Plan Approval, the only changes being those shown on Revised Sheet 2. Creation of individual lots thus is also, for the moment, a requirement of Special Permit #823, albeit one that's a byproduct of the Trust having filed the September 2014 Plans with Application #823 (and not a requirement that the ZBA imposed on its own).
The Court offers two additional observations. First, that the Trust, for the moment, must "create" separate lots does not mean the Trust must "deed out" each approved duplex to separate owners: as the Seelig Memorandum notes, a condominium association could hold title to all of the Amanda's Estates lots, once created. Second, the preceding paragraph twice uses "for the moment" to describe the Trust's obligations. That's because the current ZBA has taken the position that, were Amanda's Estates applying fresh for permits, the By-Law wouldn't require the Trust to site each duplex on its own legal lot. Owing to what he sees are Inspector Piccirilli and ZBA member Nessralla's conflicts of interest, Mr. Andrews claims the ZBA's reading of the By-Law is suspect. That may be. But this Decision doesn't depend on who's correctly interpreting the By-Law: this Decision holds only that, prompted by the Seelig Memorandum and its plausible interpretation of the By-Law, the Board and the 2014-2015 ZBA conditioned their approvals on the creation of individual lots within Amanda's Estates. The Trust didn't appeal those decisions, but that doesn't prevent the Trust from seeking modification of them. That the Trust (currently) must create separate lots also doesn't dictate what may or should happen were the Trust to seek approval of such lots under the Subdivision Control Law, G.L. c. 41, § 81K et seq., particularly if the Trust promises to create a condominium and forswears deeding out individual lots.
Thus, at this stage of the case, the Court will order only two things by way of a remedy. The Court will first issue an order vacating the ZBA's Decision with instructions that it vacate, in turn, the Trust's four building permits, on account of the Trust's failure to comply with the requirements of the current Site Plan Approval and Special Permit #823. The Court will not order the Trust, at this time, to remove anything from the Site. See Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762 , 768-769 (1996); Monogram, 25 LCR at 555. Second, the Court will order the parties to appear for a pretrial conference concerning Mr. Andrews's claims that the ZBA acted with gross negligence, in bad faith or with malice in issuing its Decision, should he want to pursue those claims at this point. Order to issue accordingly.
GORDON C. ANDREWS v. ROBERT GAYNOR, KOZHAYA NESSRALLA, ROBERT DURGIN and GERALD JOY, as they are members of the HALIFAX ZONING BOARD OF APPEALS; ROBERT PICCIRILLI, as he is the BUILDING INSPECTOR for the TOWN OF HALIFAX; and CORRIE S. MERRITT, AMANDA MONTI and EDWARD JOHNSON, as Trustees of THE PARTY TRUST.