HANCOCK VILLAGE I, LLC vs. THE TOWN OF BROOKLINE

INTRODUCTION

"You call this a barn? This looks like a stable."

"Well, if you look at it, it's a barn; if you smell it, it's a stable."

"Well, let's just look at it." [Note 1]

Sometimes one's perception of the nature of a thing (or in this case, a law) depends on one's perspective or on the context in which it is perceived. In the present dispute, plaintiff Hancock Village I, LLC ("plaintiff") perceives Brookline's Neighborhood Conservation District Bylaw as a zoning bylaw illegitimately masquerading as a general bylaw in order to stymie the redevelopment of the plaintiff's property. The town of Brookline ("Brookline" or "the town") perceives the same bylaw as a legitimate exercise of its home rule powers to enact a general bylaw. According to the plaintiff, however, Brookline has chosen to view the bylaw from a perspective that willfully and conveniently ignores its true substance and nature. In short, the plaintiff contends that the town has elected not to smell the stable so that it might insist that it is a barn.

In 2011, the town of Brookline adopted a "neighborhood conservation district" bylaw. This bylaw would serve to create local commissions with the ability to regulate the dimensions, layout, and design of construction in designated districts. Brookline adopted the bylaw not as an amendment to its zoning bylaw pursuant to G. L. c 40A, or as a historic district bylaw pursuant to G. L. c. 40C, but as a general town bylaw pursuant to its general home rule powers.

The first district established under the bylaw comprised solely the entire Brookline portion of the 70-acre property of plaintiff. [Note 2] Plaintiff filed this action seeking to invalidate both the bylaw establishing the framework for the creation of neighborhood conservation districts in the town, as well as the particular section of the bylaw creating the district encompassing the plaintiff's property. It contends that the bylaw was not a proper exercise of Brookline's general police power, as its subject matter falls squarely under the purview of G. L. c 40A and G. L. c. 40C, and must therefore have been enacted pursuant to the procedures provided in those statutes, and with the substantive protections and mechanisms required by those statutes.

For reasons discussed below, I find and rule that although the Neighborhood Conservation District Bylaw and the related Hancock Village Neighborhood Conservation District Bylaw were in the form of general bylaws, they are both properly characterized as zoning bylaws that fail to comply with the procedural and substantive requirements of the Zoning Act, G. L. c. 40A, and that further, to the extent they are characterized as historic district bylaws, they fail to comply with the procedural and substantive requirements of G. L. c. 40C. Accordingly, they will be declared to be invalid and of no force and effect.

PROCEDURAL HISTORY

On April 13, 2018, plaintiff Hancock Village I, LLC filed a six-count complaint against defendant the town of Brookline seeking declarations to the effect that Section 5.10 of the Brookline General Bylaws was invalidly enacted and is of no force and effect. Counts I through IV seek declaratory judgment pursuant to G. L. c. 231A. Count I requests a declaration that the bylaw in question was enacted without compliance with the procedures of G. L. c. 40A, §5, and Count II requests a declaration that the substance of the bylaw is in conflict with G. L. c. 40A. Count III requests a declaration that the bylaw was enacted without compliance with G. L. c. 40C, §3, and Count IV requests a declaration that the substance of the bylaw is in conflict with the same. Count V seeks a determination of the validity of the bylaw as applied to its property pursuant to G. L. c. 240, § 14A. Count VI asserts a violation of the Due Process Clause of the 14th Amendment of the United States Constitution, and Part I, Article 10 of the Massachusetts Declaration of Rights.

Brookline filed an Answer on May 14, 2019, and an Amended Answer on May 21, 2019. The parties attended a case management conference on May 29, 2018. In accordance with an agreed-upon schedule, on February 15, 2019 the parties filed cross-motions for summary judgment and responses to each other's motions. A hearing was held before me on the parties' respective motions on May 7, 2019, after which I took the motions under advisement.

UNDISPUTED FACTS

The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions for summary judgment:

1. Hancock Village is a 70-acre mixed-use development consisting of 789 garden-style apartments, 530 of which are in Brookline, with the remainder in the 20-acre portion of the property that lies over the city line in Boston. Hancock Village is owned by plaintiff Hancock Village I, LLC. [Note 3]

2. The vast majority of the Brookline portion of Hancock Village is located in the M-O.5 (Apartment) zone, Brookline's lowest density apartment house district. [Note 4] The remainder is in a single-family district.

3. In August, 2011, the plaintiff submitted an application for "Major Impact Project Review" to the Brookline Building Commissioner, which is a preliminary step in applying for a special permit under the Brookline Zoning Bylaw. The application was for the development of thirty-one detached single-family homes and 162 dwelling units in a multifamily building. [Note 5]

4. In the fall of 2011, two warrant articles - Article 5 and Article 6 - were proposed, and were scheduled for consideration at a November 15, 2011 Special Town Meeting. [Note 6]

5. Article 5 would insert Section 5.10 into Brookline's General Bylaws; this section, titled "Neighborhood Conservation Districts" (the "NCD Bylaw"), set out the framework for the operation of Neighborhood Conservation Districts ("NCDs") in Brookline. [Note 7]

6. The petitioner's description of the NCD Bylaw that accompanied the warrant for Article 5 described NCDs as a tool "designed to be more neighborhood specific than the Town's Local Historic District (LHD) By-Law ... The guidelines for a particular NCD, unlike an LHD, can be focused less on preservation of the specific details of each structure and more on preserving the general character of a neighborhood, by ensuring that the general scale, composition, massing and design is compatible with the site as well as other existing structures in the surrounding area." It stated that "the guidelines for an NCD could address landscape and urban issues such as protection of landscapes, open spaces, viewsheds and paving without grade changes." [Note 8]

7. Article 6 would insert Section 5.10.3.d.1 into this section, creating the Hancock Village Neighborhood Conservation District ("Hancock Village NCD"), which was to be an NCD applicable solely to the plaintiff's property. [Note 9] This was the first time an NCD had been on the warrant for any town meeting in Brookline. [Note 10]

8. These articles were proposed as general town bylaws under the town's home rule power, rather than as zoning bylaws adopted pursuant to the procedures in G. L. c. 40A.

9. Articles 5 and 6 were discussed and debated at seventeen meetings of various town boards and committees. [Note 11]

10. Article 5 and Article 6 were approved by Town Meeting in November 2011. Article 5 was passed by a recorded ballot vote of 183 in favor, 35 opposed, with 5 abstentions. Article 6 was passed by a counted vote of 200 in favor and 24 opposed. [Note 12]

11. On May 30, 2012, the Attorney General approved the adoption of Article 5 and Article 6; however, she noted that the "question is close" as to whether the proposed bylaw should have been adopted as a zoning bylaw. [Note 13]

12. Since the passage of the NCD Bylaw, plaintiff has secured comprehensive permit approvals pursuant to G. L. c. 40B for the further development of Hancock Village. The development approved under the comprehensive permit would be exempt from the requirements of the NCD Bylaw. [Note 14] Brookline and a number of abutting landowners filed an appeal of plaintiff's comprehensive permit on March 11, 2015. That appeal was dismissed by order of the Land Court (Piper, J.) on July 17, 2018. [Note 15]

13. Plaintiff has made at least six applications to the Hancock Village NCD Commission for work on existing homes. None of these have been denied. [Note 16]

14. On April 3, 2018, plaintiff filed the present action seeking to invalidate the NCD Bylaw contained in Section 5.10 as a whole, including both its establishment of the general NCD framework as well as the particular Hancock Village NCD contained in Section 5.10.3.d.1. [Note 17]

The NCD Bylaw

15. Section 5.10.1 of the NCD Bylaw, which sets forth the bylaw's purpose, states, in part:

This by-law is enacted for the purposes of preserving and protecting groups of buildings and their settings that are architecturally or historically significant; preserving and protecting the layout of neighborhoods or historical subdivisions of neighborhoods, vehicular and pedestrian circulation patterns, green spaces, landscapes, and viewsheds that are historically significant or significant to the character of the town or its neighborhoods; preserving and protecting distinctive features of the architectural, cultural, economic, political, or social history of the town and its neighborhoods, and limiting the detrimental effect of alterations, additions, demolition and new construction on the character of the town and its neighborhoods. Through this by-law, alterations, additions, demolition, and new construction may be reviewed for compatibility, including without limitation design, massing, topography, scale and materials with the existing buildings, green spaces, open spaces, courtyards, landscapes, neighborhood and subdivision plans and layouts, circulation patterns, viewsheds, settings, and neighborhood character. [Note 18]

16. Pursuant to Section 5.10.4 of the NCD Bylaw, each NCD is to be overseen by a commission ("NCD Commission") of at least five members, consisting of a combination of Brookline Preservation Commission members and residents of the town appointed by the Board of Selectmen. [Note 19]

17. Each NCD Commission is tasked by the NCD Bylaw with "exercis[ing] its powers in administering and regulating the alteration of buildings, other structures and natural and manmade elements within such NCD as set forth under the procedures and criteria established in this by-law," and "review[ing] all Reviewable Projects in the NCD, including without limitation new construction, demolition or alterations that affect the landscape of topography, the exterior architectural features of buildings and other structures, or the mass and siting of buildings and other structures." [Note 20]

18. Section 5.10.2 defines "Reviewable Project" as including "(i) a change to a building or other structure or part thereof such as removal, construction, reconstruction, restoration, renovation, replication, rehabilitation, addition, partial or total demolition and other similar activities, or the construction of a new building or other structure or part thereof... (iii) addition or replacement of doors or windows ... (iv) a change to a site that includes constructing, placing, erecting, installing, enlarging, or moving a building or other structure or similar activities; (v) the removal or addition of streets, driveways, parking areas, walkways, or paved surfaces..." [Note 21]

19. Section 5.10.5 provides that "a building permit (which shall include permits for demolition) or an occupancy permit may not be issued for an altered building, structure, site or property or other Reviewable Project without the prior issuance of a Certificate of Appropriateness." [Note 22]

20. Section 5.10.7 states in part: "The Commission shall determine whether the proposed alteration or other Reviewable Project, including any modification thereof agreeable to the applicant, is compatible with the specific design guidelines of the applicable district and the purposes of the bylaw." It further states that a Certificate of Appropriateness will be issued if the Commission deems it compatible, and denied if it is deemed incompatible. [Note 23]

21. Section 5.10.3.c states: "The Commission may impose dimensional requirements that further the purposes of the by-law, including without limitation preventing Reviewable Projects inconsistent with the historic or architectural aspects, scale or massing, neighborhood or subdivision plan or layout, circulation patterns, or green space, open space, landscape, vegetation or viewshed character of the NCD." [Note 24]

22. Section 5.10.3.d.1 establishes the Hancock Village NCD, and provides a number of specific "design guidelines" for the NCD. Per these guidelines, elements that "shall be compatible with the existing buildings in the district" include: "[t]he architectural design and building materials" (Section 5.10.3.d.1.i); the elements of the façade, such as windows, doors, and trim (Section 5.10.3.d.1.iii); the "shape, pitch, style, and type of roof (Section 5.10.3.d.1.iv); and "[t]he size, height and massing of a building or other structure." (Section 5.10.3.d.1.ii). [Note 25]

23. As to this final category, Section 5.10.3.d.1.ii of the Bylaw goes on to state: "Compatible building size, height and massing shall include, but not be limited to limited to [sic]: (a) No building over 2 ½ stories in height ... shall be constructed. (b) In relation to any abutting single family, detached homes, any new single-family homes shall be similarly oriented, have similar rear yard depths, and similar distance between dwelling units." [Note 26]

24. Section 5.10.3.d.1.v also states that the project shall "maintain the spatial organization of the district," and shall not have a "significant negative impact on historical architectural or landscape elements ...." It further provides that "[s]ignificant negative impacts shall include, but not be limited to: ... (d) Addition of new impervious surfaces within 100 feet of abutting properties, and (e) Loss of open space through building coverage exceeding 20% of the area of the district ...." [Note 27]

The Zoning Bylaw

25. As provided in Section 1.00, the purposes of the Brookline Zoning Bylaw (the "Zoning Bylaw") include "(b) preventing overcrowding of land ... (e) preventing undue concentration of population ... (j) encouraging the preservation of historically and architecturally significant structures; ... (l) providing for adequate open space, including landscaped and usable open space, public shade trees and other landscape and natural features." [Note 28]

26. Sections 5.00 - 5.92 of the Zoning Bylaw comprise extensive dimensional regulations imposed on districts throughout the town. Table 5.01, in particular, provides specific height maximums, minimum lot sizes, open space requirements, minimum setback requirements, and floor area ratio maximums. [Note 29]

27. Section 5.06 of the Zoning Bylaw provides "Special District Regulations" for certain areas of the town on the basis that "unique land use, environmental, architectural and other physical conditions present within the Town require detailed neighborhood, district or site planning and design review to insure: orderly and planned growth and development; [and] historic and natural resource conservation; residential neighborhood preservation ...." These Special District Regulations are to be established by Town Meeting "from time to time, in accordance with M.G.L. Chapter 40A." [Note 30]

28. Special District Regulations established under Section 5.06 impose dimensional requirements, such as maximum height, minimum open space, and maximum floor area ratio, which differ from those which would otherwise be required by Table 5.01.

29. Section 5.09 of the Zoning Bylaw, which is applicable in a number of designated areas in the town, establishes a "Design Review" process with the purpose of "provid[ing] individual detailed review of certain uses and structures which have a substantial impact on the character of the Town and upon traffic, utilities and property values therein, thereby affecting the public health, safety, and general welfare thereof." [Note 31]

30. This process allows the Planning Board and Zoning Board of Appeals to review proposed construction for, among other things, "consisten[cy] with "use, scale, yard setbacks and architecture of existing buildings and the overall streetscape of the surrounding area" (Section 5.09(4)(c)); "the location and configuration of open space" (Section 5.09(4)(d)); the impact of layout on vehicular circulation (Section 5.09(4)(e)); and consideration of "historic, traditional or significant uses, structures or architectural elements ... ." (Section 5.09(4)(k)). [Note 32]

JURISDICTION

The Land Court has exclusive jurisdiction over actions brought pursuant to G. L. c. 240, §14A for the determination of the validity of an ordinance "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." G. L. c. 240, §14A. "The 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, particularly where there is no controversy and hence no basis for other declaratory relief." Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292 , 295 (2004). There is no dispute that plaintiff is the owner of the land which is subject to the challenged bylaw, and the nature of its challenge - contending that the bylaw should have been, but was not, enacted pursuant to G. L. c. 40A - falls within the purview of the statute. See G. L. c. 240, § 4A; Valley Green Grow, Inc. v. Town of Charlton, 27 LCR 99 , 103 (2019) (Foster, J.) ("The court sees little distinction between determining the validity of a bylaw enacted under c. 40A and the validity of a bylaw that the plaintiffs claim should have been enacted under c. 40A.").

This court likewise has jurisdiction over the plaintiff's counts for declaratory judgment under G. L. c. 231A. Under that statute, the Land Court may "on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby . . . in any case in which an actual controversy has arisen and is specifically set forth in the pleadings." G. L. c. 231A, §1. "A landowner who seeks to challenge the validity of a zoning by-law where there is an actual controversy may bring a proceeding in the Land Court under G. L. c. 231A or under G.L. c. 240, §14A." Mantoni v. Board of Appeals, 34 Mass. App. Ct. 273 , 275 (1993).

Construing the plaintiff's constitutional claims as a subset of its G. L. c. 240, §14A claim, they may properly be heard in the Land Court as well. Typically, a plaintiff must notify the Attorney General of constitutional claims pursued within the context of a declaratory judgment action. See id., quoting Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 223 (1982) ("If the party seeks to involve a question of constitutionality in the declaratory judgment proceeding, ‘the attorney general shall also be notified of the proceeding.'"). The record reflects the plaintiff's previous communications to the Attorney General strenuously objecting to the passage of the Warrant Articles; however, there is no indication one way or the other whether the plaintiff has indeed notified the Attorney General of the present action. Nonetheless, no notice to the Attorney General is required for an action under G. L. c. 240, §14A. Id. Accordingly, the Land Court may maintain jurisdiction over the plaintiff's constitutional claims insofar as they are considered to be incorporated into its G. L. c. 240, §14A action.

The Land Court independently has jurisdiction over the present action because it was properly filed in the Permit Session. Pursuant to G. L. c. 185, §3A:

The permit session shall have original jurisdiction, concurrently with the superior court department, over civil actions in whole or part: (a) based on or arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property, including without limitation appeals of such permits, orders, certificates or approvals, or denials thereof, arising under or based on or relating to chapter ... 40A to 40C, inclusive, ...or any local bylaw or ordinance; (b) seeking equitable or declaratory relief (i) designed to secure or protect the issuance of any municipal, regional or state permit or approval concerning the use or development of real property or (ii) challenging the interpretation or application of any municipal, regional or state rules, regulations, statutes, laws, bylaws, ordinances concerning any permit or approval; ...and (d) any other claims between persons holding any right, title or interest in land and any municipal, regional or state board, authority, commission or public official based on or arising out of any action taken with respect to any permit or approval concerning the use or development of real property but in all such cases of claims (a) to (d), inclusive, only if the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area or both.

Although not a direct appeal of a denial of a permit, the plaintiff alleges in its complaint, and the record supports the claim, that the adoption of the NCD Bylaw is a direct response to, and improperly impacts plaintiff's efforts to develop additional housing - both single-family units and multi-family units - as well as other improvements on the Hancock Village property. [Note 33] In August 2011, the plaintiff proposed a "major impact project" to add additional housing at Hancock Village. [Note 34] It is not in dispute that the proposal to adopt the NCD Bylaw and the Hancock Village NCD Bylaw was a direct response to this proposal. [Note 35] Under these circumstances, the Land Court's jurisdiction is properly grounded in G. L. c. 185, §3A, in addition to G. L. c. 240, §14A and G. L. c. 231A.

DISCUSSION

SUMMARY JUDGMENT STANDARD

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

SUMMARY OF THE PARTIES' ARGUMENTS

The crux of this case is whether Brookline has impermissibly circumvented G. L. c. 40A and G. L. c. 40C by utilizing its general home rule power to pass a bylaw that is, in truth, either a zoning bylaw, a historic district bylaw, or both. Plaintiff argues that the NCD Bylaw replicates the manner of regulation governed by these two statutes, but evades their mandatory procedural and substantive requirements for enactment and administration. It also argues that the provisions governing an NCD commission's power to impose requirements are too vague to pass constitutional muster, and deprive an applicant of due process. Brookline contends that the effect of the NCD Bylaw is not to amend the Brookline Zoning Bylaw, but rather to supplement it through land use regulation not the exclusive domain of zoning. Similarly, it argues that the NCD Bylaw differs from historic district bylaws, and that G. L. c. 40C does not govern all bylaws that happen to fall within the broad field of historic preservation. Therefore, it contends, the NCD Bylaw was properly enacted pursuant to the town's general police powers, and did not need to adhere to the procedural requirements of either G. L. c. 40A or G. L. c. 40C. Alternatively, it argues that, even if the NCD Bylaw does fall under the ambit of these statutes, Brookline substantially complied with the procedural requirements of both. Brookline also repeatedly draws attention to the fact that Neighborhood Conservation District bylaws have been adopted in other Massachusetts municipalities as general town bylaws, as they are seen as an effective alternative to more traditional means of regulation. [Note 36]

I. THE NCD BYLAW IS PROPERLY CHARACTERIZED AS A ZONING BYLAW AND WAS INVALIDLY ADOPTED AS A GENERAL BYLAW

Towns may enact "by-laws as an exercise of their independent police powers but these powers cannot be exercised in a manner which frustrates the purpose or implementation of a general or special law enacted by the Legislature in accordance with . . . [art. 89, §8, of the Amendments to the Constitution]." Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, 363 Mass. 339 , 360 (1973). A municipality's zoning power is "one category of the more general police power, concerned specifically with the regulation of land use," and an exercise of its zoning power must adhere to the procedural requirements of G.L. c. 40A. Rayco Inv. Corp. v. Bd. of Selectmen of Raynham, 368 Mass. 385 , 392 n.4 (1975). A municipality cannot utilize its general police power to enact a bylaw which is, at its essence, a zoning regulation, if it does not resort to G. L. c. 40A; doing so would frustrate the purpose and implementation of the statute. See id. As previously noted by this court, "[t]he reason for this is that zoning bylaws have different, stricter requirements for enactment than general bylaws. A zoning bylaw must be reviewed by the planning board in a public hearing and then reported on by the board, and, crucially, may only be enacted by a two-thirds vote of town meeting. General bylaws have no such requirements—they may be enacted by a majority vote." Valley Green Grow, Inc. v. Town of Charlton, 27 LCR supra, at 105 (internal citations omitted).

Brookline impermissibly evaded these stricter requirements in a circumstance where they were necessary. Brookline's NCD Bylaw is, in its fundamental substance, a creature of zoning. It regulates subject matter falling within both the traditional definition of zoning as well as the existing purview of the Brookline Zoning Bylaw. Despite this, Brookline enacted the NCD Bylaw as a general town bylaw, and made no attempt to follow the particular procedures laid out in G. L. c. 40A. Accordingly, having failed to strictly comply with the requirements for enactment of a zoning bylaw, Section 5.10 of the Brookline General Bylaws is invalid, and of no force and effect.

A. The NCD Bylaw Addresses Subjects Traditionally Classified as Zoning Under Chapter 40A

The NCD Bylaw has the purpose and effect of regulating subject matter traditionally falling under the ambit of zoning. This is a significant factor indicating that a bylaw is governed by G. L. c. 40A, and must be enacted pursuant to its procedural requirements. In Rayco Inv. Corp. v. Bd. of Selectmen of Raynham, supra, 368 Mass. at 391, the Supreme Judicial Court determined that a bylaw limiting the number of trailer park licenses that the town could issue was not a proper exercise of the town's general police power, as the "nature and effect of the ... bylaw is that of an exercise of the zoning power." It noted that "similar by-laws have been adopted in the past by municipalities as zoning by-laws," and that "[t]here seems little doubt that the 1971 by-law could be viewed within the scope of the town's zoning power." Id. On the opposite side of the same coin, in Lovequist v. Conservation Commissioner of Dennis, 379 Mass. 7 , 13 (1979), the court held that it was not improper for the town of Dennis to enact a wetlands bylaw through its police power rather than as a zoning bylaw; and like in Rayco, the court's analysis looked in part to the universe of subject matter conventionally regulated by zoning. It noted that the bylaw was not a "zoning measure for the reason that [it] manifests neither the purpose nor the effects of a zoning regulation. The Dennis by-law does not prohibit or permit any particular listed uses of land or the construction of buildings or the location of businesses or residences in a comprehensive fashion. On its face it does not deny or invite permission to build any structure. It does not regulate density." Id. The Court further elaborated that the wetlands values protected by the bylaw (such as water supply, groundwater, and flood control) were not "typical of the concerns usually reflected in the zoning process," which instead included such things as "the character of the community and compatibility of nearby land uses." Id.

Brookline relies heavily on Lovequist, citing to the proposition therein that "[w]e do not consider all ordinances or by-laws that regulate land use to be zoning laws," and arguing that the NCD Bylaw regulates land use in a manner that need not be classified as zoning. It is true that the court in Lovequist recognized that "municipal regulations that simply overlap with what may be the province of a local zoning authority" do not necessarily need to be "treated as zoning enactments which must be promulgated in accordance with the requirements of G. L. c. 40A." Id. at 14. However, the court made clear that such overlap was permissible in circumstances where "we think it manifest that [the bylaw] is not a zoning regulation." Id. Cf. American Sign & Indicator Corp. v. Framingham, 9 Mass. App. Ct. 66 , 69 (1980) (sign bylaw's "overlap with what may be the province of a local zoning authority" did not require it to be enacted as a zoning regulation where it "‘manifests neither the purpose nor the effects of a zoning regulation' and does not involve most of the typical concerns reflected in zoning laws"); Hamel v. Bd. of Health of Edgartown, 40 Mass. App. Ct. 420 , 422, (1996) (board of health sewage flow regulation which overlapped with zoning's use regulations was permissible where the purpose and effect was "the maintenance of safe drinking water in the geographical area concerned."). Here, the NCD Bylaw does not incidentally overlap with the domain of zoning while embodying a different purpose and effect. Instead, the NCD Bylaw usurps that domain wholesale, purpose, effect, and mechanisms all.

All that the Dennis bylaw in Lovequist was not, the NCD Bylaw is. The essential focus of the NCD Bylaw's purpose clause is the protection of the "character of the town and its neighborhoods" as established by the physical and aesthetic characteristics of its structures and layout. This loudly echoes the central objectives of zoning. Zoning primarily operates to "balanc[e] rights or privileges of use with the character of neighborhoods, a task which necessarily calls into play issues of size, location, setback, traffic, and the sundry other matters addressed in local land use and zoning bylaws and ordinances." Rogers v. Town of Norfolk, 432 Mass. 374 , 382 (2000). Protecting the character of the neighborhood as reflected in its physical structures is indeed a familiar refrain in the context of zoning. See Lovequist v. Conservation Com. of Dennis, supra, 379 Mass. at 14 ("[T]he character of the community and the compatibility of nearby land uses" is a "typical concern[] usually reflected in the zoning process."); Trustees of Tufts College v. City of Medford, 415 Mass. 753 , 758 (1993) ("[P]reserving the character of an adjacent neighborhood" is one of the "purposes sought to be achieved by local zoning"); Emond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 630 , 632 (1989) ( "[T]o preserve the character of ... the neighborhood is one of the ‘broad purposes of zoning'"); Fabiano v. City of Boston, 49 Mass. App. Ct. 281 , 286 (2000) (the goal of "preserv[ing] within reason the historic residential character of the [neighborhood] ... is a goal surely within the purview of the [Boston zoning] enabling act.").

The NCD Bylaw's mimicry of conventional zoning is likewise apparent in the content and effect of its substantive provisions. "[Z]oning ordinances or by-laws govern ‘the use of land and the size, location and use of buildings.'" Hamel v. Bd. of Health of Edgartown, supra, 40 Mass. App. Ct. at 422, quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 636 (1970). As provided in the Act of the Legislature revamping G. L. c. 40A, St. 1975, c. 808 §2A, zoning bylaws achieve the purposes of zoning by regulating such subjects as "size, height, bulk, location, and use of structures ...; areas and dimensions of land ... to be occupied or unoccupied by uses and structures, courts, yards and open spaces; ... and the development of the natural scenic and aesthetic qualities of the community." The court in Lovequist itself helpfully identified a number of characteristics of conventional zoning, including regulation of density, uses of land, construction and location of structures, as well as provision of a means to apply for permission to build structures. See Lovequist v. Conservation Com. of Dennis, supra, 379 Mass. at 13.

Here, the NCD Bylaw's definition of "Reviewable Project" itself makes clear that the NCD Bylaw is indeed almost entirely concerned with the construction and siting of buildings. Its provisions go on to provide for regulation of the dimensional characteristics of such reviewable projects in order to manage the neighborhood's density and physical character: at the heart of the NCD Bylaw are the NCD Commission's powers to regulate "alterations, additions, demolition and new construction, and its powers to consider "without limitation" features including "design, massing, topography, scale and materials . . . green spaces, open spaces, courtyards, landscapes, neighborhood and subdivision plans and layouts" among others. [Note 37] The Hancock Village NCD even raids the traditional zoning toolbox for particular dimensional controls, such as the delineation of specific height, setback, and open space regulations. [Note 38] There can be no question that, unlike the bylaw in Lovequist, the NCD Bylaw has "the purpose [and] the effects of a zoning regulation." Lovequist v. Conservation Com. of Dennis, supra, 379 Mass. at 13. [Note 39]

B. The NCD Bylaw Addresses Subjects Already Governed by the Brookline Zoning Bylaw

The second factor compelling the conclusion that the NCD Bylaw falls within the scope of Chapter 40A is the fact that its subject matter has, in fact, been previously regulated in Brookline by the Zoning Bylaw. "If the municipality has a history of regulating that subject matter through its zoning bylaw, then it can only be further regulated through the zoning bylaw, not through a general municipal bylaw." Valley Green Grow, Inc. v. Town of Charlton, supra, 27 LCR at 105. In Rayco, the court considered it "significant that prior to the adoption of the 1971 by-law the town's zoning by-law dealt specifically with the subject of trailer parks," and that "the zoning by-law purported to cover this subject in a comprehensive fashion and it follows that the 1971 by-law necessarily modified the earlier by-law." Rayco Inv. Corp., supra, 368 Mass. at 393. Similarly, in Spenlinhauer v. Town of Barnstable, 80 Mass. App. Ct. 134 , 140 (2011), the town adopted a general ordinance, not a zoning bylaw, regulating the subject of parking. The Appeals Court noted that the town had "historically regulated off street parking through its zoning bylaws, not its general ordinances or bylaws," and did indeed have a "comprehensive bylaw regulating parking" enacted through its zoning power. Id. The new parking bylaw, by comparison, was intended to address the impact of parking on the "character and quality of the town's neighborhoods, precisely the target at which the town's zoning ordinance is so thoroughly and comprehensively aimed." Id. at 141. Accordingly, the court concluded that "the challenged ordinance is a matter for regulation through the town's zoning power, not through its use of a general ordinance." Id.

Given the above conclusion that the NCD Bylaw regulates subject matter conventionally at the heart of zoning, it is unsurprising that those subjects are, in fact, already comprehensively governed by the Brookline Zoning Bylaw. The Zoning Bylaw's stated purposes reflect those expressly outlined in the NCD Bylaw - of particular note are the purposes of "encouraging the preservation of historically and architecturally significant structures" and "providing for adequate open space, including landscaped and usable open space, public shade trees and other landscape and natural features." [Note 40]

The mechanisms by which the NCD Bylaw sets out to achieve these objectives replicate, and indeed replace, those already present in the Zoning Bylaw. Table 5.01 of the Zoning Bylaw contains the typical dimensional controls, common across all zoning ordinances and bylaws, which regulate height, setbacks, open space, and density of construction in the town. These provisions are intended to control the massing, scale, and siting of structures and buildings. The NCD Bylaw displaces the Zoning Bylaw by generally empowering the NCD Commission to set its own requirements related to precisely these same categories. Section 5.10.3.c allows the Commission to "impose dimensional requirements that further the purposes of this by-law, including without limitation preventing Reviewable Projects inconsistent with the historic or architectural aspects, scale or massing, neighborhood or subdivision plan or layout, circulation patterns, or green space, open space, landscape, vegetation or viewshed character of the NCD." [Note 41] Section 5.10.3.d.1 goes even further to impose its own version of particular dimensional controls already expressly provided in the Zoning Bylaw: it requires 80% open space, a 100 foot setback, [Note 42] and a maximum building height of two and a half stories, [Note 43] thus baldly supplanting the dimensional requirements set forth in Table 5.01 of the Zoning Bylaw. The NCD Bylaw's usurpation of the Zoning Bylaw's domain is made expressly clear by the concluding statements in both Section 5.10.11 and 5.10.3.d that, where the NCD Bylaw imposes stricter requirements than other bylaws, the NCD Bylaw shall prevail. [Note 44]

In fact, in replacing baseline dimensional requirements for a designated locale, the NCD Bylaw appears to operate in a similar manner to a mechanism already contained with the Zoning Bylaw - the creation of Special Districts. Pursuant to Section 5.06 of the Zoning Bylaw, the town may establish Special Districts encompassing certain areas of the town; these are meant to address "unique land use, environmental, architectural and other physical conditions" of certain neighborhoods which require particularized regulation. To address these factors, Special Districts are subjected to dimensional requirements which differ from those otherwise imposed by Table 5.01. Thus, not only is the imposition of generalized dimensional controls the province of the Zoning Bylaw, but even the act of designating special areas for particularized regulation is as well. The NCD Bylaw cannot usurp this power by filling geographic holes which have purposefully been left free of such particularized regulation. Brookline's argument that its NCD districts "supplement" the Zoning Bylaw is no different from the town's unavailing argument in Spenlinhauer that, because the "detailed and extensive" parking regulations in the zoning bylaw did not apply to single family homes, parking for that use could be properly regulated by a supplementary general bylaw. The court in Spenlinhauer rejected this, holding that the framework's inapplicability to a particular use "does not create a hole the town can fill through enactment of general ordinances." Spenlinhauer v. Town of Barnstable, supra, 80 Mass. App. Ct. at 140.

In sum, the NCD Bylaw's imposition of its own dimensional requirements - whether discretionarily crafted by the Commission, or delineated by the bylaw itself - regulates a field already comprehensively addressed by the Zoning Bylaw, and for precisely the same purpose. Though Brookline contends that the NCD Bylaw's regulation of these subjects permissibly supplements the Zoning Bylaw because it is tailored to specific neighborhoods, this argument employs "supplement" as a euphemism for "supplant." They expressly regulate the same subject matter, and the NCD Bylaw serves to effectively replace the Zoning Bylaw's requirements. As in Rayco, the NCD Bylaw's effect is to "necessarily modif[y]" the zoning bylaw in such a way that it "ought to be considered as an amendment to the zoning by-law." Rayco Inv. Corp., supra, 368 Mass. at 394.

II. THE NCD BYLAW IMPERMISSIBLY INVADES THE PROVINCE OF CHAPTER 40C

Brookline next points to the fact that, apart from its dimensional regulations, the NCD Bylaw also regulates aesthetic architectural and landscaping elements through "design guidelines." It contends that design has been traditionally regulated through Brookline's general bylaws, rather than the Zoning Bylaw, as the latter only regulates such aesthetic and design elements for certain uses or structures or in certain areas of the town. Therefore, it argues, the subject matter regulated by the NCD Bylaw does not overlap with that of the Zoning Bylaw. Nor does it, Brookline contends, improperly overlap with G. L. c. 40C's regulation of historic districts, but instead acts as a permissible alternative to the manner of regulation envisioned by that statute. Even assuming that the NCD Bylaw's "design guidelines" could be practically severed from its dimensional regulations - a highly unlikely proposition, given the manner in which they are closely intertwined - the town's contention that they are permissible subjects of the town's general police power is still unavailing, as they do indeed intrude upon the domain of G. L. c. 40C.

First, it should be noted that the Zoning Bylaw does itself regulate design to a certain degree. Section 5.06 of the Zoning Bylaw imposes Special District Regulations on certain designated Special Districts in the town; these address "unique land use, environmental, architectural and other physical conditions" of particular neighborhoods which require further regulation. Not only do these Special District regulations alter the dimensional requirements to which the district would otherwise be subject, but they also subject an applicant to design review pursuant to Section 5.09 of the Zoning Bylaw. Section 5.09's Design Review Guidelines provide for "individual detailed review of certain uses and structures which have a substantial impact upon the character of the Town...." This requires the Planning Board to submit design recommendations to the Board of Appeals, which must then consider those recommendations as an additional factor when reviewing special permit applications. This design review includes consideration of "historic, traditional or significant uses, structures or architectural elements." For one particular district, it provides that "any new structure shall be harmoniously related to nearby pre-existing structures and the street façade in terms of color, texture, materials, scale, height, setbacks, roof and cornice lines, signs, and design elements ... ." [Note 45]

Plaintiff nonetheless agrees that the preservation of historic architectural design elements is indeed "more definitively" [Note 46] regulated under Section 5.6 of the town's general bylaws, titled "Preservation Commission and Historic Districts Bylaw," [Note 47] than by the Zoning Bylaw. Brookline likewise points to this section as proof that the NCD Bylaw's proper place is amongst the town's general bylaws. [Note 48] However, the appearance of historic district regulation in the town's general bylaws does not open the door to unrestrained regulation of the subject under the town's home rule power, because Section 5.6 was enacted pursuant to and is governed by G. L. c. 40C. The NCD Bylaw's regulation of historic design mimics that statute, and must likewise follow its necessary procedures. Brookline, contending that it did not have to follow the procedural requirements for adoption of a historic district bylaw as provided by G. L. c. 40C, §§3 and 4, does not argue that it has complied with those requirements.

G. L. c. 40C pursues the "preservation and protection of the distinctive characteristics of buildings and places significant in the history of the commonwealth and its cities and towns or their architecture...." G. L. c. 40C, §2. Similar to G. L. c. 40A's mandate allowing towns to establish zoning districts only pursuant to specified procedures, G. L. c. 40C states that "[a] city or town may, by ordinance or by-law adopted by two-thirds vote ... establish historic districts subject to" a number of procedural requirements that must be followed "[p]rior to the establishment of any historic district." G. L. c. 40C, §3. (emphasis added) It is true that "[Chapter 40C] gives municipalities unfettered discretion whether to establish a historic district and, if so, what lands, buildings, and structures to include in that district." Springfield Preservation Trust, Inc. v. Springfield Library & Museums Ass'n, 447 Mass. 408 , 419 (2006). However, if a municipality does choose to establish a historic district, it must follow the statutory procedures for doing so. [Note 49]

The practical framework of G. L. c. 40C provides that no building permit shall issue in a historic district "for alteration of an exterior architectural feature" without a certificate of appropriateness, certificate of non-applicability, or certificate of hardship. G. L. c. 40C, §6. In determining whether an alteration is historically appropriate, the commission shall consider, among other things, the historic and architectural value and significance of the site, building or structure, the general design, arrangement, texture, material and color of the features involved, and the relation of such features to similar features of buildings and structures in the surrounding area. In the case of new construction or additions to existing buildings or structures the commission shall consider the appropriateness of the size and shape of the building or structure both in relation to the land area upon which the building or structure is situated and to buildings and structures in the vicinity, and the commission may in appropriate cases impose dimensional and set-back requirements in addition to those required by applicable ordinance or by-law.

G. L. c. 40C, §7.

The regulation of architectural design for the purposes of historic preservation under this framework, and under the comparable framework provided in Brookline's Preservation Commission and Historic Districts Bylaw, is no different from the regulation of design provided by the NCD Bylaw. Section 5.10.3.d.1 begins by articulating the history of the Hancock Village neighborhood, and describes the particulars of its historic architectural design. In addition to the dimensional requirements described above, the NCD Bylaw's substantive design guidelines govern the same exterior design features covered by G. L. c. 40C, §7; and, like the statute, the NCD Bylaw requires evaluation of those features for compatibility with the surrounding neighborhood's historical character. It provides for this evaluation with the aim of "preserving and protecting groups of buildings and their settings that are architecturally or historically significant," which again directly mirrors the purpose set forth in G. L. c. 40C, §2. It even calls for the same manner of approval - a "Certificate of Appropriateness" - as appears in the statute. Although Brookline contends that the NCD Bylaw differs in that it "allows Brookline to address issues beyond the scope of M.G.L. c. 40C," the additional issues it lists - "landscape and urban issues such as protection of landscapes, open spaces, viewsheds" [Note 50] - are simply the very same issues which themselves improperly fall within the purview of the Zoning Bylaw and G. L. c. 40A, as described above. A bylaw cannot escape categorization under either statute by packaging the content of one along with the other.

The unavoidable conclusion is that, with regard to exterior design elements, the NCD Bylaw establishes a historic district of the type specifically envisioned by G. L. c. 40C. Accordingly, by purporting to enact the NCD Bylaw pursuant to Brookline's general home rule power, but without following the procedural requirements G. L. c. 40C, Brookline has frustrated that statute's purpose. See Board of Appeals of Hanover v. Housing Appeals Comm., supra, 363 Mass. at 360. Brookline contends that G. L. c. 40C does not occupy the field of historic preservation, and that the NCD Bylaw may therefore regulate historic preservation without conforming to the requirements of the statute. As support for this contention, Brookline cites no applicable authority other than the Attorney General's memorandum, which itself concluded without citation to any precedent that G. L. c. 40C "neither explicitly or implicitly preempts other types of by-laws aimed at architectural or historic preservation." [Note 51] There is no apparent reason, however, why the interaction between a municipality's general home rule power and the statutory scheme provided in G. L. c. 40C should differ in any way from the interaction between that power and the statutory scheme of G. L. c. 40A. The principles articulated in Rayco and Spenlinhauer apply just as much in the context of the former as they do in the latter. It might be so that the entire field of historic preservation, speaking broadly, is not preempted by G. L. c. 40C; however, it is not so difficult to determine that a town bylaw which singles out a district for historic preservation, utilizes a mechanism identical to that of G. L. c. 40C, does so for the same professed purpose, and does so in a town that has already accepted G. L. c. 40C, has trespassed on the purview of the statute. Were it otherwise, the statute's provision of procedural requirements for the creation of a historic district would be meaningless, as municipalities could avoid them at will.

Accordingly, even if the NCD Bylaw's regulation of historic architectural design does not fall under the umbrella of G. L. 40A and the Zoning Bylaw, it is functionally identical to the historic districts governed by G. L. c. 40C, and would therefore in any event be required to follow that statute's procedural requirements for enactment.

III. THE ENACTMENT OF THE NCD BYLAW FAILED TO COMPLY WITH THE PROCEDURAL AND SUBSTANTIVE REQUIREMENTS OF CHAPTER 40A AND CHAPTER 40C

Because the NCD Bylaw's dimensional regulations are, in purpose and effect, an amendment to the Brookline Zoning Bylaw, the bylaw can only be valid if enacted pursuant to the procedures of G. L. c. 40A. It was not. Brookline argues that the process "substantially complied" [Note 52] with the provisions of G. L. c. 40A, and that this is sufficient to sustain the bylaw. It is not. In Canton v. Bruno, 361 Mass. 598 , 603 (1972), the Supreme Judicial Court expressly rejected this same argument, then advanced by the town of Canton, that "substantial compliance" was sufficient to satisfy the procedural requirements of the predecessor statute to G. L. c. 40A, §5. Interpreting the same language that now appears in the current text of §5, it held that "the Legislature mandated a rule of strict compliance by the plain language ‘[Zoning] ordinances or by-laws may be adopted . . . but only in the manner . . . provided' ...." Canton v. Bruno, supra, 361 Mass. at 598. See Penn v. Town of Barnstable, 26 LCR 215 , 217 (2018) (Vhay, J.). Cf. McIntyre v. Selectmen of Ashby, 31 Mass. App. Ct. 735 , 739 (1992) (noting that G. L. c. 40, §21(17), which authorizes earth-removal ordinances, was enacted "to avoid the involved and strict procedural requirements for adopting or amending zoning ordinances and by-laws ....").

Brookline asserts that the numerous town and board meetings held concerning the NCD Bylaw were more than sufficient to provide notice and procedural protection equivalent to that available under Chapter 40A. Strict compliance, however, brooks no equivalence. It is not in dispute that Brookline failed to strictly comply [Note 53] with the provisions of G. L. c. 40A, §5; accordingly, Section 5.10 of the Brookline General Bylaws, as enacted by the passage of Warrant Articles 5 and 6, cannot stand. Similarly, the NCD Bylaw failed to comply with G. L. c. 40C's procedural requirements for enactment. These failures include, among others, the failure to give written notice of the public hearing on the required report of a study committee at least fourteen days prior to the date of the required hearing. G. L. c. 40C, §3, ¶ 1. Brookline's contention, repeated once more, that it "substantially complied" with the requirements of G. L. c. 40C is just as unavailing the second time as the first. Thus, even if Section 5.10's regulation of historic exterior design in Hancock Village were severable from its dimensional regulations, the bylaw still could not survive.

Of course, even had the town complied with the procedural requirements for the adoption of a zoning bylaw in G. L. c. 40A, §5, the bylaw as passed is invalid because it fails to include or incorporate (as was the town's apparent intention) the many substantive protections and mechanisms of G. L. c. 40A. The NCD Bylaw, purporting to be a general bylaw, provides no protection for prior nonconforming uses or lots as required by G. L. c. 40A, §6; it does not recognize the zoning freeze provisions of the same section; it does not provide for zoning relief to be granted in the form of special permits or variances, but instead substitutes types of approvals and relief not sanctioned by G. L. c. 40A; it institutes as the local board granting approvals a commission composed in a manner not recognized or sanctioned by G. L. c. 40A; it does not provide for the notice or hearing requirements required by G. L. c. 40A, §§11 and 15; and perhaps most egregiously, by providing no specific avenue of appeal, it provides for what is only a limited record review by an action in the nature of certiorari instead of the more robust de novo review required by G. L. c. 40A, §17.

IV. THE NCD BYLW VIOLATES THE UNIFORMITY PROVISIONS OF G. L. c. 40A, §4

Aside from its invalidity for failure to utilize the procedural requirements for adoption of a zoning bylaw, and its failure to include the substantive protections, noted above, required to be included in every zoning bylaw, the NCD Bylaw is also invalid because it violates the uniformity principles that are fundamental to the validity of any zoning laws, and which are required by G. L. c. 40A, §4. Pursuant to that section, "[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." G. L. c. 40A, §4. A bylaw fails to provide uniformity where it is so general in its grant of powers as to effectively provide a permit granting authority with unbridled discretion to fashion its own requirements on an ad hoc basis. See SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 108 (1984); Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565 , 572 (1996). Such an improper delegation of legislative power results in a scheme in which criteria are "devised for the occasion, rather than of uniform applicability." Id. at 572.

The seminal example of a violation of uniformity is provided by SCIT v. Planning Board of Braintree, where a town's zoning bylaw rendered every use in a particular district subject to a special permit, with the only rubric for consideration being the bylaw's general purpose clause. See SCIT, Inc. v. Planning Bd. of Braintree, supra, 19 Mass. App. Ct. at 103-108. The Appeals Court found this to be invalid, holding that §4 "does not contemplate ... conferral on local zoning boards of a roving and virtually unlimited power to discriminate" between different applications. Id. at 108. The bylaw violated the uniformity requirement of §4 because "‘[i]t attempted to delegate to the board . . . a new power to alter the characteristics of zoning districts, a power conferred . . . only upon the legislative body of the city to be exercised only in the manner prescribed by [G. L. c. 40A] . . . and it attempted to do this without furnishing any principles or rules by which the board should be guided, leaving the board unlimited authority to indulge in ‘spot zoning' at its discretion or whim.'" Id., quoting Smith v. Board of Appeals of Fall River, 319 Mass. 341 , 344 (1946). Cf. Salvadore v. Town of Westborough, Case No. 97-0547, 2002 Mass. Super. LEXIS 199, at *3 (May 22, 2002) (bylaw which provided for adoption of dimensional requirements on a case-by-case basis for municipal structures was valid; though "structures in other zones, such as single-family residences, commercial or industrial structures" are amenable to uniform requirements, municipal uses - such as water towers and fire stations - are not).

The requirement for uniformity is not limited to zoning bylaws subject to G. L. 40A, §4, but extends to other exercises of the police power as well. "In the administration of controls limiting the use of land - as with any exercise of the police power - uniformity of standards and enforcement are of the essence." Fieldstone Meadows Dev. Corp. v. Conservation Comm'n of Andover, 62 Mass. App. Ct. 265 , 267 (2004), quoting Fafard v. Conservation Comm'n of Reading, supra, 41 Mass. App. Ct. at 569. For example, in Fieldstone Meadows, supra, 62 Mass. App. Ct. at 267 n.5, a conservation commission administering a local wetlands bylaw employed a policy prohibiting construction within twenty-five feet of bordering vegetated wetlands. This requirement was, however, not specifically laid out within the actual regulatory framework; moreover, it "provide[d] that ‘special justification' could be advanced for proposals for building within the twenty-five foot zone." The court held that this policy did not provide uniformity of application, and was a legally insufficient basis for the commission's denial. Id., at 270.

Nonetheless, discretion in applying dimensional requirements is not per se delegation of authority resulting in a violation of the uniformity principle; it is only when a board's discretion is truly unrestrained that uniformity is threatened. In Emond v. Board of Appeals of Uxbridge, supra, 27 Mass. App. Ct. at 632, a provision of the bylaw permitted the board to grant special permits for lots with less frontage or area than required by the bylaw's dimensional requirement, as long as the lots were "in neighborhoods where there is a general pattern of house lots that deviate similarly ...." The court found no violation of §4: "The by-law does not give the board unlimited discretion. ... Adjustments to conform zoning standards to the circumstances of particular fact situations need not, we think, be made exclusively by establishing zoning districts on a neighborhood by neighborhood basis. Authorizing adjustments by special permit, subject to clear and uniform standards, does not violate the uniformity requirement of G. L. c. 40A, §4." Id. See also MacGibbon v. Board of Appeals of Duxbury, supra, 356 Mass. at 638 ("The by-law confers a measure of discretionary power to the board, but it does not confer unrestrained power to grant or withhold special permits by the arbitrary exercise of that discretion.").

Here, the NCD Bylaw goes too far in delegating what is, in effect, an unrestrained power to legislate ad hoc zoning requirements. In particular, Section 5.10.3.c missteps in affording the Commission the general power to conjure up whatever dimensional requirements it sees fit on a case-by-case basis. Section 5.10.3.c states, "The Commission may impose dimensional requirements that further the purposes of the by-law, including without limitation preventing Reviewable Projects inconsistent with the historic or architectural aspects, scale or massing, neighborhood or subdivision plan or layout, circulation patterns, or green space, open space, landscape, vegetation or viewshed character of the NCD." Like the bylaw in SCIT, this provides virtually unlimited discretion, guided only by very general statements of purpose, to create dimensional zoning requirements from whole cloth, and to do so on a case-by-case basis, resulting in the very antithesis of uniform application. [Note 54] See SCIT, Inc. v. Planning Bd. of Braintree, supra, 19 Mass. App. Ct. at 108. And, it provides not just the power to tweak the numerical element of a set dimensional constraint - such as Emond's downward adjustment of the frontage requirement - but also the power to create whatever new categories and types of dimensional constraints the Commission might imagine. Unlike Emond, the ability of the Commission to discretionarily create and impose its own dimensional requirements deprives the bylaw of the "clear and uniform standards" which must necessarily be articulated in the bylaw itself. Emond v. Board of Appeals of Uxbridge, supra, 27 Mass. App. Ct. at 632. The NCD Bylaw suffers from this deficiency whether it is classified as a zoning bylaw (as concluded above) or a general bylaw (as contended by Brookline).

V. THE NCD BYLAW CONSTITUTES IMPERMISSIBLE SPOT ZONING

A variant of violation of the principle of uniformity required by G. L. c. 40A, §4 is spot zoning. "Spot zoning involves the singling out for disparate treatment of one parcel of land from similar parcels in the same zoning district." Murphy v. City of Springfield, Case No. 114481, 1987 WL 966132 *2 (Mass. Land Court, 1987) (Fenton, J.), aff'd 25 Mass. App. Ct. 1121 (Rule 1:28 Decision). "‘Spot zoning'—singling out a parcel of land for special treatment as compared to other parcels in the same zoning district—is unlawful." Canteen Corp. v. City of Pittsfield, 4 Mass. App. Ct. 289 , 293 (1975). Where a single parcel is re-zoned at the behest of citizens objecting to a particular proposed use of the parcel, such re-zoning violates the uniformity principle and is invalid spot zoning. Schertzer v. City of Somerville, 345 Mass. 747 , 752 (1963).

A zoning amendment "will be sustained unless there exists no substantial relation between it and the expressed purposes of [G. L. c. 40A]." Id. at 751. "If the reasonableness of a zoning regulation is fairly debatable, the judgment of the local legislative body (here the zoning commission of Boston) should be sustained and the reviewing court should not substitute its own judgment. Nevertheless, a zoning ordinance or by-law will be held invalid if it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals or welfare." National Amusements, Inc. v. City of Boston, 29 Mass. 305 , 309-310 (1990) (citations omitted).

The re-zoning of a single lot of land "at the instigation of citizens who objected to a particular proposed business use," setting it apart from other similar adjacent uses, "constitute[s] arbitrary and unreasonable action." Schertzer v. City of Somerville, supra, 345 Mass. at 752. This is so even if the target site of the re-zoning is large enough that it would not ordinarily be unreasonable for it to be treated as a subject of re-zoning. In National Amusements, Inc. v. City of Boston, the Appeals Court upheld a judgment of the Land Court invalidating the re-zoning of a 13.8-acre parcel from business use to residential, holding that zoning changes, "which have no better purpose than to torpedo a specific development on a specific parcel are considered arbitrary and unreasonable." National Amusements, Inc. v. City of Boston, supra, 29 Mass. at 312.

There is no doubt that Brookline's purpose in adopting the NCD Bylaw and the Hancock Village NCD Bylaw was the same purpose deemed invalid in Scherzer and National Amusements: to frustrate a single property owner's efforts to develop a particular use on its property. See Schertzer v. City of Somerville, supra, 345 Mass. at 752; National Amusements, Inc. v. City of Boston, supra, 29 Mass. at 312. In August, 2011, the plaintiff submitted an application package to the town's building commissioner seeking a "Major Development Impact Review" for an immediate proposal to build 31 single-family dwellings as well as multi-family housing at Hancock Village. [Note 55] An August 29, 2011 memorandum by the building commissioner confirms that the single-family part of the proposal, and probably the multi-family portion as well, could be approved by special permits issued by the board of appeals. [Note 56]

The proposal to adopt the NCD Bylaw and the Hancock Village NCD Bylaw followed directly, with, as noted above, an explicit written acknowledgment by the Brookline Advisory Committee Subcommittee on Planning and Regulation that "[t]he impetus for [Article 6 of the Town Warrant adopting the Hancock Village NCD Bylaw] comes from the proposals by [the owner of Hancock Village] to add as many as 466 new housing units to Hancock Village ... [the owner's] most recent proposal (August 2011) is a major impact project that includes 31 detached single-family houses and 162 units in a multi-family building. The Planning Board, Building Commissioner, Preservation Commission, Department of Public Works (Traffic and Engineering), and Housing Advisory Board all have begun to review the proposal." [Note 57] The Board of Selectmen also made it abundantly clear that the town's intention in adopting Article 6 was to force Hancock Village to remain the quaint garden-style apartment complex it has been since first built in 1949. In the Board of Selectmen's "Supplemental Recommendation" to the Town Meeting on the subject of Article 6, the Selectmen wrote:

Hancock Village was designed and constructed in accordance with commitments made by the developer John Hancock Insurance Company, including not only a commitment that there would be a buffer strip along the side of the land facing Russett and Beverly Roads, but also an agreement that the area would be a "garden village type of housing" development, with horizontally divided (as opposed to vertically divided town-house type units) not exceeding 25% of the units, with flat roofs not exceeding 25% of the buildings, with building coverage not exceeding 20% of the area, and with no building over 2 stories in height.

...

The design guidelines in Article 6 are intended to ensure that the development and alterations within the Hancock Village area are compatible with the existing neighborhood and abutting properties ... to provide "an additional layer of protection for existing residents of Hancock Village and its immediate surroundings." [Note 58]

These explicit acknowledgments of the purpose of the proposed warrant articles, coming from the committee charged with reviewing the proposed warrant articles prior to their consideration by the town meeting and from the board of selectmen, in combination with the surrounding undisputed circumstances of the adoption of Warrant Articles 5 and 6, including their timing in light of Hancock Village's submission of its development proposal, [Note 59] compel the inference that in adopting the two NCD bylaws, "the town was concerned only with blocking the plaintiff['s] development." Pheasant Ridge Associates Ltd. Partnership v. Town of Burlington, 399 Mass. 771 , 779 (1987). Where the undisputed record allows the court to draw such an inference, the town's action, even adopted by town meeting, may be invalidated. Id. (facially valid eminent domain taking for park purposes invalidated where undisputed record allowed inference that true purpose was to block proposed G. L. c. 40B development).

The NCD Bylaw and the Hancock Village NCD Bylaw, although facially not adopted as zoning amendments, were, for the reasons stated above, bound to comply with the principles governing the adoption of zoning amendments, and also for the reasons stated above, violated the requirements for uniformity that prohibit spot zoning.

CONCLUSION

For the foregoing reasons, the plaintiff's Motion for Summary Judgment is ALLOWED, and the defendant's Motion for Summary Judgment is DENIED. The court need not address the plaintiff's arguments as to the unconstitutional vagueness of the NCD Bylaw, as it invalid for the independent grounds articulated above. Because it failed to adhere to the procedural and substantive requirements of G. L. c. 40A and G. L. c. 40C, and fails to provide for uniformity of application, the enactment of Warrant Articles 5 and 6 was beyond the scope of the town's power and authority, and Section 5.10 of the Brookline General Bylaws, in its entirety, is accordingly invalid and of no force and effect. [Note 60] Judgment will enter in accordance with this decision.