At its 2016 Annual Fall Town Meeting, the Town of Salisbury (Town) amended its Zoning Bylaw (bylaw) to modify the Salisbury Beach Overlay District (Overlay District). The Overlay District is overlaid over the existing Beach Commercial District, allowing denser development by special permit and site plan review. Among the requirements for a special permit and site plan review are a series of design guidelines, set forth in bylaw § 300-71. The Overlay District, with its design guidelines, is an example of "form-based zoning." Form-based zoning is part of the "smart growth" movement, which seeks to promote denser, more walkable neighborhoods that mix residential and commercial uses, in which buildings' architecture and design are "seamlessly linked to their surroundings," growing "from local climate, topography, history, and building practice." The Charter of the New Urbanism, available at www.cnu.org/who-we-are/charter-new-urbanism (visited April 12, 2019). "A form-based code is a land development regulation that fosters predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code." Form-Based Code Institute, Definition, available at www.formbasedcodes.org/definition (visited Apr. 12, 2019). Form-based codes generally set forth detailed building standards for a particular area, including descriptions of building requirements such as size, design, location, and features such as windows and doors; public space standards; architectural standards; and administration and approval processes. See 3 Patricia E. Salkin, American Law of Zoning §§ 23:1, 23:3 (5th ed. 2016).
Big Block Development Group (Big Block) and Dodgem Corporation (Dodgem) (collectively the Developers) sought and obtained from the Town of Salisbury Planning Board (Board) a special permit and site plan approval for a project in the Overlay District. Unhappy with the findings and conditions of the special permit and site plan approval, the Developers brought a four-count complaint in this court. Counts I and II are an appeal under G.L. c. 40A, § 17, challenging the special permit and site plan approval. Counts III and IV, brought under G.L. c. 231A, § 8, and G.L. c. 240, § 14A, respectively, seek a determination of the validity of § 300-71 of the Overlay District bylaw. The Developers have moved for partial summary judgment on counts III and IV only, arguing that § 300-71 is facially invalid; the Town and the Board have cross-moved. Contrary to the Developers' argument, §300-71's language is not so vague, ambiguous and standardless that the Board has unlimited discretion; rather, it uses terms with commonly accepted definitions and provides an appropriate mix of mandatory and optional conditions to serve an appropriate planning purpose. The Developers' summary judgment motion will be denied and the Town's and Board's motion allowed.
Procedural History
The Complaint (Complaint or Compl.) in this action was filed in the permit session on May 4, 2018. Citation for publication was issued on May 16, 2018, and proof of publication was filed on May 29, 2018. The case management conference was held on May 29, 2018. The Answer of Defendants, Town of Salisbury Planning Board and the Town of Salisbury was filed on July 2, 2018.
On July 27, 2018, the Developers filed their Motion for Partial Summary Judgment, Mass Land Court Rule 4 Statement of Issues and Material Facts (Pls.' SOF), Memorandum of Law, and Appendix (Pls.' App.). On August 29, 2018, the Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Cross Motion for Summary Judgment, Defendants' Memorandum of Law in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment (Cross-Motion for Summary Judgment), Defendants' Mass. Land Ct. R. 4 Statement of Material Facts (Defs.' SOF), the Affidavit of Neil J. Harrington, and the Defendants' Appendix (Defs.' App.) were filed. On September 13, 2018, the Plaintiffs' Reply in Further Support of Their Motion for Partial Summary Judgment and in Opposition to Defendants' Cross-Motion for Summary Judgment, Plaintiffs' Memorandum of Law in Further Support of Their Motion for Partial Summary Judgment and in Opposition to Defendants' Cross-Motion for Summary Judgment, and Plaintiffs' Responses to Defendants' Statement of Material Facts (Pls.' Resp.) were filed. The Defendants' Reply Brief to Plaintiffs' Opposition to Defendants' Cross-Motion for Summary Judgment and the Affidavit of David Eisen were filed on October 16, 2018. The court heard the Motion for Partial Summary Judgment and the Cross-Motion for Summary Judgment on October 18, 2018, and took both motions under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
Facts
The following facts are undisputed:
1. Dodgem owns those parcels of land known and numbered as Ocean Street and Broadway and 8 Ocean Front South, Salisbury, Massachusetts (property). Pls.' SOF ¶ 8; Defs.' SOF ¶ 8.
2. On November 12, 2017, Big Block and Dodgem submitted applications for a special permit and for site plan review under the Salisbury Zoning Bylaw (bylaw) for a proposed mixed-use project to be built on the property located at 8, 16 and 18 Broadway and 6-28 Ocean Front South, Salisbury, Massachusetts (Project). Pls.' SOF ¶¶ 1, 8; Defs.' SOF ¶¶ 1, 8-9; Pls.' Resp. ¶ 9; Pls.' App. Exhs. 1-2.
3. The Project is located within the Overlay District and the Oceanfront South Revitalization Subdistrict, each found in the Beach Commercial District. Pls.' SOF ¶¶ 1, 3; Defs.' SOF ¶¶ 1, 3, 12; Pls.' Resp. ¶ 12; Pls.' App. Exh. 3.
4. The Beach Commercial District allows, as of right, several residential, community, agricultural, and commercial uses, including one-family detached dwellings and multifamily dwellings. Defs.' SOF ¶ 12; Pls.' Resp. ¶ 12; Defs.' App. Exh. 3.
5. Section 300-61 of the bylaw, relating to the Overlay District, provides that:
The Salisbury Beach Overlay District is intended to spur redevelopment of under- utilized beachfront commercial property, to establish design guidelines for new development, to unlock the potential of creative development and architecture, to enhance the value of land and buildings, to encourage sustainable design and building practices, to provide a foundation for long-term private reinvestment, and create incentives for new mixed-use development while preserving the character of this historically lively oceanfront district of Salisbury Beach.
Defs.' SOF ¶ 11; Pls.' Resp. ¶ 11; Pls.' App. Exh. 3.
6. Section 300-67 of the bylaw provides that the maximum structure height allowed in the Overlay District is 65 feet and five stories of habitable space. The Planning Board may grant a special permit to increase the maximum allowable height to 89 feet and seven stories of habitable space upon a finding that:
a. The incremental shadow, if any, of the proposed structure will not have a significant adverse shadow impact on Salisbury Beach between July 1 and August 10;
b. The proposed building width and height ratio, building spacing, and roof treatments are sufficient to mitigate the impact of the increase in height on surrounding properties, the street, and from vantage point of pedestrians;
c. The proposed increase in height occurs in one or more prominent locations, such as a street intersection or the corner of a building on the interior of a site, thereby providing distinction and contributing to a variety of heights in the district;
d. The proposed building addresses all applicable components of the design guidelines in §300-71; and
e. The proposed increase in height is consistent with the purposes of the Salisbury Beach Overlay District.
Defs.' SOF ¶ 15; Pls.' Resp. ¶ 15; Defs.' App. Exh. 3.
7. Section 300-69 of the bylaw provides:
All projects developed within the Salisbury Beach Overlay District shall be subject to the site plan review by the Planning Board in accordance with Article XVIII of the Zoning Bylaw. Prior to the Planning Board approving any application for a development plan under this bylaw, the Board shall find that: (1) The plan meets the applicable planning standards established in Article XVIII of the Zoning Bylaw and the design guidelines established in Section 300-71
Pls.' SOF ¶ 3; Defs.' SOF ¶ 3; Pls.' App. Exh. 3.
8. Section 300-71 of the bylaw provides:
As part of the required site plan review process or, where applicable, special permit process, applicants seeking to utilize the Salisbury Beach Overlay District shall submit text, narrative, plans, elevations, and/or section drawings to the Planning Board in accordance with the following guidelines. In order to determine substantial compliance with the design guidelines, the following categories shall apply to the Planning Board's review. Each category of guideline compliance must be met. An applicant shall be deemed to be in substantial compliance when the application achieves the minimum compliance requirements in each of the categories listed below.
Guideline Type § 300-71 Subsection Reference Standard
Category 1 A, B, C, D, E, Q, R, T Mandatory
Category 2 F, G, H, S 3 out of 4
Category 3 I, J 1 out of 2
Category 4 K, L, M 2 out of 3
Category 5 N, O, P 2 out of 3
A. Buildings, structures and site layout shall reflect traditional neighborhood designs, with pedestrian-friendly street design that is inviting and pleasant for walking, bicycling, and other nonvehicular means of getting around, and safe and convenient for individuals with disabilities; discernible edges, a mix of densities, and a mix of land uses. Buildings are encouraged to reflect both traditional and contemporary interpretations of vernacular coastal New England architecture for the purposes of promoting appropriate waterfront scale and character, including building materials, massing, density, scale, and roof lines.
B. Large expanses of blank walls shall not be allowed. Facades shall have frequent architectural articulation. Major such articulations shall be spaced no farther apart than 25% of the building length at street level (but in no case farther apart than 70 feet). Street levels lined with extensive windows and frequent well-designed entrances to street level uses are encouraged, permitting continuous public views and access in and out of buildings in order to create a lively street atmosphere. Window designs in a vertical orientation are encouraged.
C. Screening of ground-floor parking from pedestrian view with appropriate doors, building elements and/or landscaping features is required for parking areas along public ways.
D. All projects shall be designed to minimize the size and number of curb cuts. Full-width curb cuts will not be allowed. In keeping with the theme of screening parking from the public view, efficient traffic patterns are encouraged to support ingress and egress from lots. Curb cuts may not exceed an aggregate of 24 feet for every 100 feet of frontage. Lots with less than 100 feet of frontage may have one curb cut, 14 feet in length.
E. Underground utilities for new and redeveloped buildings are required unless physically restricted or blocked by existing underground obstructions.
F. A straightforward use of natural, traditional or sustainable building materials is encouraged. Brick, stone, high-quality metals, cast concrete, wood, and cement fiberboard will achieve the greatest level of compatibility with the surrounding area and will best stand the test of time in terms of both changing community tastes and withstanding the historically vibrant commercial climate of the Salisbury oceanfront. Exterior material substitutions, in particular products and applications that are of higher quality than those described in these guidelines, are encouraged.
G. Building facades shall include architecturally distinct styles promoting diverse design, particularly with rooftop appurtenances such as cupolas, turrets, spires, widow walks, etc.
H. A diversity of roof heights, gable orientations, and volumes in new buildings is required.
I. Traditional arrangement of façade components into base, middle, and top composition may be used to achieve compatibility and continuity within the surrounding architectural context. Additionally, projecting bays, recessed balconies, and roof shape variation shall be utilized to provide interest, individuality, and appropriate scale to new development.
J. Sidewalk amenities such as street furniture, lighting and awnings that encourage year-round pedestrian use and sidewalk-cafe-style seating to enhance the public realm are encouraged.
K. Rear vehicular access to ground floor parking is preferred to minimize curb cuts on principal streets. Use of streets other than Broadway and Oceanfront South for vehicle access is preferred. Use of shared access points is encouraged to minimize the number of curb cuts.
L. Placing buildings orientated parallel with the front setback line is required to keep a consistent "street wall," with primary entries orientated towards the street.
M. Building setbacks may be varied and are encouraged to recognize the siting and scale of adjacent development.
N. At the intersection of the building line with crossover streets, there may be variation to the building edges to allow for corner elements and circulation functions. The building edges may be articulated and organized in such a way to achieve an architecturally rich and contextually varied composition. Variation in the building edge beyond the minimum setback is encouraged.
O. The facade proportions used in new development shall incorporate compatible architectural details, storefront designs, window openings, and roof shapes to balance the proportions of facades into pleasant and cohesive compositions.
P. Building elevations are required to incorporate architecturally appropriate techniques to articulate the massing of the proposed building, such as projecting bay windows, different material for the ground-floor base, cornice lines, and/or material changes, etc.
Q. To the extent feasible, provisions shall be made to accommodate the construction and use of an elevated pedestrian walkway (boardwalk) along the oceanfront within the Salisbury Beach Overlay District boundaries stipulated in Exhibit I and to accommodate the future extension of the walkway along the oceanfront to the north and south of the overlay district.
R. To the maximum extent reasonably possible, the ground-floor levels in mixed- use buildings shall be elevated to the minimum elevation stipulated by the State Building Code, and such elevations shall permit continuous sidewalks and/or boardwalks to be constructed along the building frontages that will permit easy access for pedestrians to building entrances and ease access to and from the boardwalks, the streets, and the beach.
S. At least 15% of the ground-floor noncommercial habitable spaces provided at the base of buildings in the Oceanfront South Revitalization Subdistrict should be initially designed so as to be capable of conversion at a later date to commercial use. The Planning Board encourages design features necessary for such conversion include, but are not limited to, proper ceiling height, construction assemblies meeting building codes for mixed uses, and accommodation for provision of future handicapped access.
T. Buildings shall not create an adverse shadow impact.
Pls.' SOF ¶¶ 3-4; Defs.' SOF ¶¶ 3-4; Pls.' App. Exh. 3. Bylaw section 300-71, subsections A-T are hereafter referred to as the design guidelines.
9. The Board scheduled a duly noticed public hearing for the Project on December 13, 2017, which was continued on January 10, 2018, January 24, 2018, February 14, 2018, February 28, 2018, March 13, 2018, March 22, 2018, March 28, 2018, April 11, 2018, and was closed on April 17, 2018. Pls.' SOF ¶ 6; Defs.' SOF ¶ 6.
10. By decisions dated April 18, 2018, the Board approved the Developers' applications for a special permit and for site plan approval. Each decision makes the approval subject to 44 conditions. Pls.' App. Exhs. 5-6.
Discussion
The parties have filed cross-motions for partial summary judgment as to Counts III and IV of the Complaint, claims under G.L. c. 231A, § 8, and G.L. c. 240, § 14A, to determine the validity of § 300-71 of the bylaw. The Developers claim that § 300-71 of the bylaw is invalid because its language is so broad, vague, ambiguous, and subjective that the Board has unchecked discretion in its application; the Town and the Board claim that § 300-71 is a valid exercise of the zoning power. The Land Court has jurisdiction, pursuant to G.L. c. 240, § 14A, to make determinations of the validity of municipal ordinances and bylaws. G.L. c. 185, § 1(j1/2).
The first question is the standard for analyzing the site plan review provisions of § 300-71. While "a permissible regulatory tool for controlling the aesthetic and environmental impacts of land use," site plan review is not "an independent method of regulation." Dufault v. Millenium
Power Partners, L.P., 49 Mass. App. Ct. 137 , 139 (2000). Rather, it operates as part of a special permit process (or as a prerequisite to a building permit) and is considered and reviewed as part of that process. See id.; see also St. Botoloph's Citizens Committee, Inc. v. Boston Redev. Auth., 429 Mass. 1 , 8-10 (1999). Thus, the site plan review provisions of § 300-71 are analyzed under the standard for determining the validity of special permit provisions.
"When a town's legislative body grants authority through its bylaws to a zoning board of appeals to act on applications for special permits, those bylaws must provide the board both with sufficient standards and with sufficient specificity as to the terms used in the bylaw." Fordham v. Butera, 450 Mass. 42 , 44 (2007), citing Gage v. Egremont, 409 Mass. 345 , 349 (1991), and Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 118 (1955). "The delegation of authority to the board of appeals to act on applications for special permits for exceptions to the zoning by-law cannot leave the decision subject to the 'untrammeled discretion' or 'unbridled fiat' of the board." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 637-638 (1970), quoting Building Comm'r of Medford v. C. & H. Co., 319 Mass. 273 , 281 (1946), and Commonwealth v. Protami, 354 Mass. 210 , 211 (1968). "Instead, '[t]he Zoning Enabling Act and the by-law together must provide adequate standards for the guidance of the board in deciding whether to grant or to withhold special permits The standards need not be of such a detailed nature that they eliminate entirely the element of discretion from the board's decision.'" Fordham, 450 Mass. at 45, quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass at 638. "The degree of certainty with which standards for the exercise of discretion are set up must necessarily depend on the subject matter and the circumstances." Burnham, 333 Mass. at 118. "When a court considers the adequacy of the standards in a bylaw, '[e]very presumption is to be made in favor of the by-law, and its enforcement will not be refused unless it is shown beyond reasonable doubt that it conflicts with the Constitution or the enabling statute.'" Fordham, 450 Mass. at 45, quoting Simeone Stone Corp. v. Oliva, 350 Mass. 31 , 37 (1965).
With respect to specificity, G.L. c. 40A, § 9, "requires that special permit bylaws provide for 'specific types of uses' that are permitted only on issuance of a special permit." Fordham, 450 Mass. at 46, quoting G.L. c. 40A, § 9. Bylaws which purport to make all uses in a zoning district subject to the grant of a special permit lack sufficient specificity and are invalid. SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 110-111 (1984). The specificity requirement does not, however, demand that all terms used in a bylaw be defined. Rather, in the absence of a definition the "well-understood ordinary meaning" will control. Fordham, 450 Mass. at 47; Berliner v. Feldman, 363 Mass. 767 , 771 (1973); Shuman v. Board of Aldermen of Newton, 361 Mass. 758 , 766 (1972).
The Developers' challenge to § 300-71 of the bylaw asserts that there are terms and language in each of its 20 design guidelines which are vague and ambiguous, are not clearly defined, and prescribe vague, subjective standards such that § 300-71 is invalid. The design guidelines are divided into five categories; "[a]n applicant shall be deemed in substantial compliance when the application achieves the minimum compliance requirement in each of the categories." "Category 1" requires compliance with all of eight subsections, A, B, C, D, E, Q, R, and T. "Category 2" requires compliance with three out of four of subsections F, G, H, and S. "Category 3" requires compliance with one of the two subsections I and J; "Category 4" requires compliance with two of the three subsections K, L, and M; and "Category 5" requires compliance with two of the three subsections N, O, and P. Section 300-71 thus creates a set of design criteria for development in the Overlay District while affording applicants for site plan review and special permits some flexibility to choose how they want to meet these substantial design requirements. Categories 2-5 of § 300-71 allow an applicant to choose, from a menu of options, which of the design guidelines they wish to comply with as long as the minimum number of guidelines is met within each category.
The Developers argue that the reliance in § 300-71 on words not defined in the bylaw renders the design guidelines vague and ambiguous, conferring unchecked discretion to the Board in its application of the design guidelines to applications for site plan review and special permits. The court addresses each of the guidelines in turn. Throughout their argument the Developers take umbrage with the usage of a variety of words, undefined in the bylaw, including "shall," [Note 1] "promote," [Note 2] "encourage," [Note 3] "appropriate," [Note 4] "may," [Note 5] "consistent," [Note 6] "compatible," [Note 7] "balance," [Note 8] "pleasant," [Note 9] and "cohesive." [Note 10] The commonly accepted definitions of these words are noted here, and are relied on in the subsequent analysis. See Fordham, 450 Mass. at 47 n.5, citing Webster's Third New Int'l Dictionary (1993).
Guideline A. Composed of two parts, Guideline A requires that "[b]uildings, structures and site layout shall reflect traditional neighborhood designs, with pedestrian-friendly street design that is inviting and pleasant for walking, bicycling, and other nonvehicular means of getting around, and safe and convenient for individuals with disabilities; discernible edges, a mix of densities, and a mix of land uses." This requirement sets forth unambiguous expectations. To the extent that an application could comply with the requirements to varying degrees, this amount of discretion in determining compliance is appropriately left to the board. The second part, which encourages buildings to "reflect both the traditional and contemporary interpretations of vernacular costal New England architecture" to promote "appropriate waterfront scale and character, including building materials, massing, density, scale, and roof lines," serves to provide context to aid an applicant in complying with the guideline. The Board, in determining an application's compliance with Guideline A, has sufficient, unambiguous standards. That the extent of an application's compliance is subject to some discretion of the Board does not leave the Board with untrammeled discretion.
Guideline B. Three components of Guideline B require that "[l]arge expanses of blank walls shall not be allowed. Facades shall have frequent architectural articulation. Major such articulations shall be spaced no farther apart than 25% of the building length at street level (but in no case farther apart than 70 feet)." These three requirements are unambiguous. To the extent that the Board retains the discretion to determine how large an expanse of blank wall can be or how frequent architectural articulations should be, these are discrete concerns, related to aesthetics, that the Board may properly consider and are not so vague or ambiguous that the Board's discretion is unchecked. See John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206 , 218 (1975) ("aesthetics alone may justify the exercise of the police power; that within the broad concept of 'general welfare,' cities and towns may enact reasonable [] regulations designed to preserve and improve their physical environment"). The remainder of Guideline B encourages the employ of certain design elements, which by the language of the Guideline are not required but offer both the Board and applicants further guidance towards assessing compliance with the guideline.
Guideline C. Compliance with Guideline C requires that ground-floor parking areas along public ways be screened from pedestrian view with "appropriate doors, building elements and/or landscaping features." Here the guideline requires screening and offers suggestions for design elements that will comply with the guideline. As above, notwithstanding that the use of the word "appropriate" leaves the Board some discretion to determine whether screening proposed in an application complies with the guideline, this is a permissible design regulation.
Guideline D. Compliance with Guideline D requires designs to minimize the number of curb cuts and sets limits on the size and number of curb cuts based on the amount of frontage of a given property. The guideline further states that "efficient traffic patterns are encouraged." The Developers argue that these provisions are inconsistent with each other, suggesting a scenario wherein an increased number of curb cuts would improve traffic patterns. Guideline D sets unambiguous requirements relative to curb cuts and encourages efficient traffic patterns but does not mandate them. In other words, it requires the most efficient traffic pattern possible under the required number of curb cuts. There is no conflict and no ambiguity.
Guideline E. To comply with Guideline E, new and redeveloped buildings are required to have underground utilities "unless physically restricted or blocked by existing underground obstructions." The Developers argue that the term "existing underground obstructions" is undefined and, further, that the language of the guideline leaves a project's compliance uncertain if above ground utilities are necessary. Guideline E is not vague or ambiguous and there is no error in the bylaw which left the nature of underground obstructions undefined. To the contrary, the Board may properly exercise limited discretion to determine on the facts unique to a given application whether an obstruction would allow aboveground utilities where they are otherwise forbidden.
Guideline F. Compliance with Guideline F is demonstrated by an application which employs a "straightforward use of natural, traditional or sustainable building materials." Further expounding on the expectations for compliance, Guideline F states that "[b]rick, stone, high- quality metals, cast concrete, wood, and cement fiberboard will achieve the greatest level of compatibility with the surrounding area and will best stand the test of time in terms of both changing community tastes and withstanding the historically vibrant commercial climate of the Salisbury oceanfront." Here, the guideline states an unambiguous expectation for compliance and provides specific examples to ensure that it is not vague or ambiguous and appropriately limits the Board's discretion.
Guideline G. Requiring building facades that have "architecturally distinct styles promoting diverse design," Guideline G further suggests design elements which would satisfy the requirement, including "rooftop appurtenances such as cupolas, turrets, spires, widow walks etc." This guideline is unambiguous and, by suggesting means of compliance, appropriately limits the discretion of the Board to ascertain an application's compliance with the guideline.
Guideline H. To comply with Guideline H new buildings are required to have a "diversity of roof heights, gable orientations, and volumes." As with Guidelines B, C, and G, this is an unambiguous aesthetic or design regulation that does not grant the Board too much discretion.
Guideline I. Compliance with Guideline I requires the use of certain design features while offering suggestions as to how a developer "may achieve compatibility within the surrounding architectural context." Similar to Guidelines B, C, G, and H, the amount of discretion afforded to the Board in determining compliance with Guideline I is a permissible regulation of aesthetics that is appropriately limited by the suggested means of compliance in the guideline.
Guideline J. In order to be credited with meeting the requirements of Guideline J, applicants are encouraged to include in their application "[s]idewalk amenities such as street furniture, lighting, and awnings that encourage a year-round pedestrian use and sidewalk-cafe- style seating to enhance the public realm." The requirements for compliance with this guideline are not vague or ambiguous and afford the Board very narrow discretion in determining whether such requirements were met.
Guideline K. In order to comply with Guideline K, an application will prioritize "[r]ear vehicular access to ground floor parking," the "[u]se of streets other than Broadway and Oceanfront South for vehicle access," and the "[u]se of shared access points
to minimize the number of curb cuts." This guideline is unambiguous and, as is the case with Guideline J, offers the Board very narrow discretion in determining whether the requirements were satisfied.
Guideline L. In order to be credited with compliance with Guideline L, an application must propose "buildings oriented parallel with the front setback line
with primary entries oriented towards the street." This guideline is unambiguous and, as is the case with Guidelines J and K, offers the Board very narrow discretion in determining whether the requirements were satisfied.
Guideline M. In order to be credited with compliance with Guideline M, an application may vary building setbacks "to recognize the siting and scale of adjacent development." This guideline unambiguously encourages applicants to consider building setbacks that are appropriate in the context of the adjacent lots. The Board's authority to determine whether an application complies with this guideline is well within the permissible scope of its discretion.
Guideline N. To be credited with compliance with Guideline N a developer will show that "[a]t the intersection of the building line with crossover streets," an application uses "variation in building edges to allow for corner elements and circulation functions
in such a way to achieve an architecturally rich and contextually varied composition." The guideline further encourages "[v]ariation in the building edge beyond the minimum setback." The guideline unambiguously states that compliance is demonstrated when the proposed building design varies the building's edges in the described ways and affords the Board little discretion to deny compliance with the guideline where such edge variation has been appropriately incorporated. Use of setback variation is articulated as a means of compliance but is not required by the language of the guideline.
Guideline O. Compliance with Guideline O requires façade proportions that are balanced "into pleasant and cohesive compositions." Compliance is demonstrated by incorporating "compatible architectural details, storefront designs, window openings, and roof shapes." This is a design regulation, the scope of which is properly limited by the suggested means of compliance. The Board is not granted untrammeled discretion but rather is offered narrow grounds on which it could find a project did not comply with the guideline.
Guideline P. Compliance with Guideline P requires that "[b]uilding elevations . . . incorporate architecturally appropriate techniques to articulate the massing of the proposed building." Guideline P goes on to include examples of how this may be achieved. The guideline unambiguously sets out its design expectations and offers clear examples of ways in which a proposed building may comply. The guideline is not ambiguous and does not vest inappropriate discretion in the Board.
Guideline Q. Compliance with Guideline Q requires that "[t]o the extent feasible, provisions shall be made to accommodate the construction and use of an elevated pedestrian walkway (boardwalk) along the oceanfront within the Salisbury Beach Overlay District boundaries stipulated in Exhibit I and to accommodate the future extension of the walkway along the oceanfront to the north and south of the overlay district." This guideline unambiguously requires that applications include provisions to accommodate a pedestrian walkway but allows for flexible application of the guideline at the Board's discretion. This discretion allows the Board to evaluate the feasibility of such accommodations and determine whether an application has provided sufficient accommodations in the context of that feasibility determination. The requirement is not vague and provides clear bounds for the Board's discretion in applying the guideline.
Guideline R. Similar to Guideline Q, Guideline R requires that "[t]o the maximum extent reasonably possible, the ground-floor levels in mixed-use buildings shall be elevated to the minimum elevation stipulated by the State Building Code, and such elevations shall permit continuous sidewalks and/or boardwalks to be constructed along the building frontages that will permit easy access for pedestrians to building entrances and ease access to and from the boardwalks, the streets, and the beach." As above, this guideline sets clear expectations for compliance but allows the Board in its discretion to consider the nature of a given application and determine whether the applicant has complied to the "maximum extent reasonably possible." This contemplates a fact-based inquiry into the circumstances of individual projects and affords the Board reasonable discretion to assess compliance.
Guideline S. Requiring that "[a]t least 15% of the ground-floor noncommercial habitable spaces provided at the base of buildings in the Oceanfront South Revitalization Subdistrict should be initially designed so as to be capable of conversion at a later date to commercial use," Guideline S goes on to suggest methods of compliance. The expectation for compliance is clearly articulated and the Board's discretion is limited to a determination of whether the appropriate percentage of the proposed ground-floor residential area building is capable of conversion to commercial use.
Guideline T. Compliance with Guideline T requires that "[b]uildings shall not create an adverse shadow impact." This requirement is not vague and leaves the Board with limited discretion to determine what an adverse shadow impact would be in the context of an application before it. Such discretion affords the Board and applicants a reasonable degree of flexibility where the relative adversity of resulting shadows will depend on many factual considerations that would be difficult to otherwise articulate in such a bylaw in a comprehensive manner.
Design Guidelines A-T set forth unambiguous requirements which are frequently punctuated by contextual examples of the manner in which compliance with a given guideline may be achieved. To the extent that the Design Guidelines reserve discretion to the Board to determine in some cases whether the design elements selected by an applicant are appropriate in the context of the particular application, such discretion is checked by the unambiguous language of the Design Guidelines and further by the examples of compliance which circumscribe the board's authority.
The Developers argued that the use of the words "shall," "may," and "encourage" throughout the design guidelines creates some ambiguity as to whether compliance with a given guideline is actually required. The structure of § 300-71 makes it clear that to be credited with compliance with any design guideline, regardless of whether the word "shall" is used, the expectations of the guideline in question must be met. Further, to the extent that the word "encourage" is used in different ways, each guideline clearly sets forth its expectations, and occasionally uses the word "encourage" in a non-mandatory fashion to highlight examples of ways in which an applicant may achieve compliance. For example, Guideline F provides that "[a] straightforward use of natural, traditional or sustainable building materials is encouraged."
Guideline F is optional in the sense that within Category 2 of the design guidelines it is one of four listed guidelines, three of which must be met. The use of the word "encouraged" does not, however, mean that an application which does not comply with the substance of the guideline may still be credited as being in compliance. For example, after setting forth a mandatory requirement, Guideline A further states that "[b]uildings are encouraged to reflect both traditional and contemporary interpretations of vernacular coastal New England architecture for the purposes of promoting appropriate waterfront scale and character, including building materials, massing, density, scale, and roof lines." Here, the word "encouraged" is used to set forth examples of the ways in which an application may achieve compliance. Use of these fairly commonplace and well-understood words does not mean that the design guidelines as a whole are vague or ambiguous.
The Developers liken the Design Guidelines to the disputed bylaw provisions discussed and invalidated by this court in Cumberland Farms, Inc. v. Jacob, 23 LCR 620 (2015). In Cumberland Farms, Inc., a bylaw of the Town of Wellfleet attempted to regulate so-called "formula businesses," namely those with standardized signage, trademarks, designs, etc., and "façade that identifies the business as one (1) of twenty five (25) or more businesses nationwide." Id. at 622. The bylaw was found to be invalid both because it regulated the identity of an applicant rather than the proposed use and because the restrictions imposed by the bylaw were subjective and vague. The court stated that "[p]ut simply, the Formula Business bylaw regulates ownership not use. It singles out certain businesses for more onerous regulation, based on nothing more than the name on their door, without an evidentiary basis to do so." Id. at 624. Section 300-71 does not attempt to draw such a distinction, and the Developers do not claim it does.
Rather, the Developers rely on the language in Cumberland Farms, Inc., where the court stated:
under the bylaw, the Planning Board must find that the Formula Business will not substantially alter or detract from the established character of the location, that it will contribute to a diverse and appropriate blend of businesses in its location, and that its [a]rchitecture and signage [will] reflect and/or compliment surrounding architecture and signage. What do these mean? By what standards are they to be judged? How can they be applied, in practice, in anything other than an almost totally-subjective manner? And why do they not apply just as equally to stand- alone (i.e., one or more of fewer than twenty-five) businesses, which presently are free to operate without regard to them? It is difficult to see how the bylaw will not become a way (or, just as problematically, be perceived in practice as a way) for the Planning Board to play favorites. And it is even more difficult to conclude that the bylaw is anything but economic protectionism, which is not a proper subject of zoning.
Id. (internal quotations and citations omitted). Based on the language of the bylaw the court found that "even with the best intentions, the subjective and vague standards by which the Planning Board is empowered to act will result in arbitrary and capricious decisions." Id.
By contrast, the language used in the Design Guidelines is far more specific and frequently provides examples of anticipated means of compliance. Moreover, in contrast to the bylaw in Cumberland Farms, Inc., § 300-71 does not single out any particular type of use or ownership that is subject to the Design Guidelines. Rather, compliance is required as a component of site plan review and special permit applications for projects in the Overlay District. Unlike the bylaw in Cumberland Farms, Inc., § 300-71 is not vague or ambiguous and has not attempted to regulate use or ownership in a way which the discretion afforded to the Board will allow it to play favorites such that every application results in arbitrary and capricious decisions.
The Design Guidelines represent the blend of fixed standards and flexibility in application that underlies the entire special permit and site plan review process. That the Town took this approach as part of a form-based zoning scheme in service of the goals of promoting integrated, organic design of large, mixed-use projects in the beach neighborhood of Salisbury does not change their validity. None of the foregoing, of course, suggests that the Board's actual application of § 300-71 to the Developers' project could not be arbitrary and capricious, but the possibility of such a decision does not render the bylaw invalid. On its face, § 300-71 of the bylaw is a valid and unambiguous exercise of the Town's zoning power. The Town and the Board are entitled to partial summary judgment with respect to Counts III and IV of the Complaint.
Conclusion
For the foregoing reasons, the Motion for Partial Summary Judgment is DENIED and the defendants' Cross-Motion for Summary Judgment is ALLOWED. A status conference is set down for May 3, 2019, at 9:30 a.m.
SO ORDERED.
BIG BLOCK DEVELOPMENT GROUP and DODGEM CORPORATION v. HELEN "TRUDI" HOLDER, GINA PARK, DON EGAN, LOU MASIELLO, JOHN "MARTY" DOGGETT, and GIL MEDEIROS, as they are members of the TOWN OF SALISBURY PLANNING BOARD, and the TOWN OF SALISBURY.