RUSSELL CORNER, JANET CORNER, DEBRA CATALONI, CHARLES CATALONI, DAVID FRAZIER, MARY FRAZIER, DANIEL WENZ, and MARY WENTZ, v. FOREST DELAHUNT DEVELOPMENT, LLC, ROCKLAND PLANNING BOARD, JOHN LUCAS, MICHAEL CORBETT, RANDY HOBLIZELLE, JARED VALANZOLA, and CHARLES WILLIAMS, III

Massachusetts courts have been struggling to fit the square peg of site plan review into the round hole of G. L. c. 40A since 1970. This case is but the latest example of that struggle, and the result is predictably unproductive and inefficient for the parties on both sides of the case.

The plaintiffs, abutters to a proposed ice skating complex with three rinks, filed this action for review in the nature of certiorari pursuant to G. L. c. 249, § 4, and a declaratory judgment, challenging the Rockland Planning Board's (the "Planning Board") decision granting site plan approval, for property located at O Bill Delahunt Parkway in Rockland. (the "Property") Defendant Forest Delahunt Development, LLC ("Forest Delahunt") submitted the application for site plan review and approval for a development to consist of three skating rinks, seating for 1500 spectators, a restaurant, and related property improvements, including a parking lot for more than 400 vehicles. The plaintiffs, abutters to the Property, allege that the Planning Board's decision granting site plan approval was arbitrary and capricious and not based on substantial evidence.

In accordance with Land Court Standing Order 2-06, the Planning Board filed the Administrative Record of its proceedings. Following a schedule agreed to by the parties, the plaintiffs filed a motion for judgment on the pleadings on January 4, 2019, Forest Delahunt filed its opposition on February 6, 2019, and the Planning Board filed its opposition to the motion for judgment on the pleadings and its own cross motion for judgment on the pleadings on February 6, 2019. I took the matter under advisement following a hearing held on April 30, 2019.

For the reasons set forth below, the plaintiffs' motion for judgment on the pleadings is DENIED, the Planning Board's cross motion for judgment on the pleadings is ALLOWED, and judgment will enter dismissing the plaintiffs' appeal on the grounds that it is not ripe for adjudication.

FACTS

Accepting, for the purposes of these Mass. R. Civ. P. 12(c) motions for judgment on the pleadings, the well-pleaded facts in the Complaint, along with the documents referred to in the Complaint, and the facts shown in the Administrative Record filed by the Planning Board, the court finds the following facts:

The Project

Forest Delahunt, pursuant to agreements with the record owners, has proposed development on seven contiguous parcels of land in Rockland between Bill Delahunt Parkway and residential properties bounding on Forest Street, with its only frontage on Forest Street. The Property is roughly 41.4 acres in size. Most of the Property, including all of the portion of the Property Forest Delahunt proposes to develop, is located in the I-2 Industrial Park Zone under the Rockland Zoning Bylaw. ("Bylaw") A portion of the property fronting on Forest Street and extending to the vicinity of the rear of the residences of abutters on Forest Street, is zoned R-2 Residence.

Forest Delahunt proposes to build a sports complex, to be located in one building with a gross floor area of 103,000 square feet, to eventually contain three full-size ice skating rinks suitable for ice hockey and other skating sports, seating for 1500 spectators, and a restaurant. The complex would depend for access solely on a 24-foot wide driveway to be constructed providing access from Bill Delahunt Parkway over the land of others. The proposed development includes a parking lot with 418 parking spaces in front of the building.

The Special Permits

At a public hearing on January 23, 2018, the Rockland Zoning Board of Appeals ("Board of Appeals") voted to grant Forest Delahunt a special permit pursuant to Section 415-16.C.18.6 of the Bylaw for a Commercial Recreational Facility, and a special permit pursuant to Section 415-16.C.9 of the Bylaw for a restaurant serving alcoholic beverages. The Board of Appeals' decision was filed with the town clerk on February 6, 2018. The decision of the Board of Appeals granting the two special permits was appealed to this court on February 26, 2018; the appeal of the special permits is pending. [Note 1]

The Variance

In order to access the proposed facility from Bill Delahunt Parkway, over land that is not part of the Property, instead of from its frontage on Forest Street, Forest Delahunt also applied for a variance from Section 415.33.B of the Bylaw, which requires that driveways accessing property must be "located through the frontage of said land." At a hearing on February 28, 2018, the Board of Appeals voted unanimously to grant the requested variance to allow access to the Property from Bill Delahunt Parkway. The Board of Appeals' written decision granting the variance was filed with the town clerk on March 12, 2018. That decision, too, is the subject of an appeal pending in this court. [Note 2]

Site Plan Review and Approval: the Bylaw and Planning Board Rules and Regulations

With exceptions only for single-family dwellings, construction of structures accessory to single- and two-family dwellings, interior repairs and improvements, and renovations that do not involve enlargement of other buildings, the Bylaw requires site plan review and approval for virtually all building projects in Rockland. Section 415-58 of the Bylaw provides in relevant part:

Except as provided herein, no building, excavation, or foundation activities shall be initiated unless a site plan is first submitted and approved and a building permit is issued by the Building Inspector. No certificate of occupancy shall be given unless all constructions conform to the approved site plan.

Section 415-59 of the Bylaw provides subjects to be considered by the "reviewing authority" [Note 3] when reviewing a site plan, including protection of adjoining properties from offensive uses, traffic concerns, methods of handling storm water runoff and sewage, off-street loading, lighting, and consideration of issues related to grading and impacts on floodplains, wetlands, and scenic views. The Bylaw further provides that the application and approval procedure shall be in accordance with rules and regulations to be adopted by the Rockland Planning Board. ("Planning Board") The Bylaw makes no provision for appeal of a decision of the reviewing authority.

Section I.I of the Planning Board's rules and regulations, presumably adopted in accordance with the Bylaw, provides detailed requirements for the content and filing of proposed site plans, for review and comment by other town departments, and for public consideration and review by the Planning Board. The public hearing requirements provide that the Planning Board shall consider the site plan at a regularly scheduled meeting within forty-five days after "formal acceptance" of the site plan, shall consider the comments of other town agencies, and shall hear the applicant and all interested parties. The section requires the Planning Board, within thirty days of the meeting at which it considers the site plan, to "approve, conditionally approve, or disapprove the site plan." The section further provides that amended site plans shall be considered by the Planning Board, but must be filed at least fourteen days before the date of the scheduled meeting at which it is to be considered. As with the Bylaw, no provision is made for appeal following Planning Board action on a site plan or an amended site plan.

Site Plan Review Hearing and Decision

Forest Delahunt submitted its application for site plan review to the Planning Board on March 12, 2018 and to the town clerk on March 21, 2018. [Note 4] Forest Delahunt, apparently in response to comments from town agencies, submitted a revised site plan to the Planning Board on April 19, 2018. The Planning Board considered the site plan review application at its meeting on April 24, 2018. At the meeting, the plaintiffs, represented by counsel, appeared and argued against approval of the site plan, partly based on their argument that submission of revised plans less than two weeks prior to the meeting violated the Planning Board's rules and regulations requiring that "amended site plan applications" be submitted at least fourteen days before the meeting at which the amended site plan application is considered. [Note 5]

The Planning Board voted unanimously at the meeting of April 24, 2018 to approve the site plan application subject to certain conditions. A written decision reflecting the approval and the conditions is signed by the chairman of the Planning Board and is dated April 24, 2018. There is no indication that the decision was filed with the town clerk, nor do the Bylaw or the Planning Board rules and regulations require filing of the decision with the town clerk.

The plaintiffs filed their complaint in this action, seeking judicial review in the nature of certiorari pursuant to G. L. c. 249, § 4 and a declaratory judgment pursuant to G. L. c. 231A, § 1, declaring the Planning Board's decision approving the site plan application to be deficient on both procedural and substantive grounds, on June 21, 2018.

DISCUSSION

Standard of Review

An action for certiorari review is brought to "correct errors in proceedings which are not according to the course of common law, and which proceedings are not otherwise reviewable by motion or by appeal." G. L. c. 249, § 4. In a certiorari review, the court is limited to correcting "substantial errors of law apparent on the record adversely affecting material rights." FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996). Therefore, the review is not de novo, but instead is "limited to what is contained in the record of the proceedings below." Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999). Furthermore, the standard of review is based on the "nature of the action sought to be reviewed." Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 49 (1977). A local board may not act for reasons that are "'extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda.'" 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, 41 Mass. App. Ct. 565 , 568 (1996). When a planning board has acted in such a manner, the plaintiff seeking to annul the board's action may seek "correction of an error 'in proceedings which are not according to the course of the common law' and are not 'otherwise reviewable by motion or by appeal.'" Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 418 , 424 (1995), (aggrieved person may seek certiorari review of endorsement of plan as approval under the subdivision control law not required pursuant to G. L. c. 41, § 81P, notwithstanding lack of statutory provision for appeal of such an endorsement).

Ripeness

However, before the court can consider whether the Planning Board's decision was the result of errors of law, was arbitrary or capricious, or was not based on substantial evidence, the court must consider the threshold issue of whether the Planning Board's decision is ripe for review.

In 1970, the Supreme Judicial Court recognized the authority of municipalities to "adopt reasonably flexible methods" for review and approval of site plans, notwithstanding the absence of any standardized procedure for doing so in the Zoning Act, G. L. c. 40A. Y. D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 31 (1970). In the ensuing years, cities and towns have adopted all manner of provisions for site plan review and approval, ranging from "administrative" site plan review procedures overseen by a building inspector or a planning board, to those treated as special permits pursuant to G. L. c. 40A, § 9. Massachusetts courts have struggled to bring some sense of order to the variety of procedural and substantive choices municipalities have made in approaching site plan review. A judge of the Land Court has cogently observed, in commenting on this struggle, "[s]ite plan review is the unacknowledged ghost haunting land use law." Willis v. Planning Bd. of Great Barrington, 2019 WL 2180689, 19 MISC 000041 (May 20, 2019, Foster, J.).

Among the problems addressed by the courts have been the question whether a site plan review process subject to special permit requirements requires a supermajority vote (it does not unless the bylaw expressly says so), Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 (1997); whether a planning board may deny site plan approval for a use that is permitted as a matter of right under the local bylaw (it may not), Prudential Insurance Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 (1986); whether a planning board may impose stricter dimensional requirements than those required by the bylaw as a condition of site plan approval (it may), Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 (2008); and whether all uses in a given zoning district, including those designated as permitted as a matter of right, may be made subject to denial under a special permit requirement that is essentially a site plan review provision (they may not), SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984).

But by far the most vexing issue faced by the courts has been to determine the appropriate rules governing when, how, and if, site plan approval decisions can be appealed. The ripeness of a site plan decision, usually by a planning board, for appeal, is generally determined by the treatment of the site plan review provision in the bylaw as either a special permit, as an administrative review preliminary to the issuance of a building permit, or as something in between, where the bylaw specifies a specific right, and avenue, of appeal. A site plan review that is issued in the form of a special permit is reviewable, as is any other special permit, by an appeal pursuant to G. L. c. 40A, § 17. Quincy v. Planning Bd. of Tewksbury, 38 Mass. App. Ct. 17 , 21-22 (1995) ("Approval of a site plan special permit application…would still lead to the issuance of a special permit…Conversely, denial of a site plan application constitutes a decision by the special permit granting authority, which is directly appealable under G. L. c. 40A, § 17.").

Where, however, the site plan review provision of the bylaw is not cloaked with the procedures of a special permit, but is styled as an administrative review prior to the issuance of a building permit, a direct appeal is permitted only if the bylaw provides for one. If a bylaw specifically provides for a G. L. c. 40A, § 17 appeal directly from the decision of the planning board, that specification of a direct appeal will be honored. Wildstar Farm, LLC v. Planning Bd. of Westwood, 81 Mass. App. Ct. 1114 (2012) (Rule 1:28 Unpublished Decision) ("[W]here a town has expressly instructed through its by-law that exhaustion will not be required…it may not later argue in an appeal brought by an aggrieved party that exhaustion of the town's own administrative remedies is required.").

But where a site plan review provision in a bylaw is not a special permit, and where it does not specifically provide that it may be appealed pursuant to G. L. c. 40A, § 17, neither a G. L. c. 40A appeal nor an appeal in the nature of certiorari pursuant to G. L. c. 249, § 4 will be permitted. Certiorari is not available and an applicant or other aggrieved person will be required to exhaust administrative remedies (G. L. c. 40A, §§ 8, 15) before resort to a G. L. c. 40A, § 17 appeal. And where the site plan review is an administrative review preliminary to the issuance of a building permit, it is the denial or issuance of the building permit that triggers the right to appeal, not the denial or approval of the application for site plan review.

In St. Botolph Citizens Committee, Inc. v. Boston Redevelopment Authority, the Supreme Judicial Court held that an appeal by neighbors of an approval of a proposed expansion of the Colonnade Hotel under Article 31 (now under Article 80) of the Boston Zoning Code, the Boston equivalent of site plan review, was premature because the Boston Redevelopment Authority review was merely a prerequisite to the issuance of a building permit. "Certiorari cannot be requested where administrative remedies terminating in judicial review are available and unexhausted." 429 Mass. 1 , 7 (1999). "An approval after site plan review, when required in connection with the issuance of a building permit, is not a final action, but only a prerequisite to the grant of the permit." Id. at 9. The court held that the neighbors' appeal of the B.R.A. decision was not ripe for review, and that their challenge to the approval of the Colonnade addition would have to wait until a building permit was issued, which could then be appealed. The Appeals Court followed suit a year later, holding that abutters to a proposed electric power plant could not directly appeal a site plan approval because the site plan provision of the local bylaw, at least with respect to an allowed use, was not a separate approval but was instead "a condition precedent, as it were, to the issuance of a building permit. Once a building permit issues, an individual aggrieved thereby may appeal to the zoning board pursuant to both G. L. c. 40A, § 8, and the [local] by-law." Dufault v. Millenium Power Partners, L. P., 49 Mass. App. Ct. 137 , 139- 140 (2000).

While the approach mandated by St. Botolph and Dufault has the advantage of allowing only a single appeal with respect to a particular development, it also imposes considerable expense and uncertainty on the developer as the price for denying abutters a direct appeal. As a result of requiring aggrieved abutters to wait until a building permit is issued to file their challenge of site plan approval, the developer is forced, with the uncertainty of an impending appeal hanging over the project, to go to the considerable time and expense of preparing the detailed construction plans necessary for the issuance of a building permit, including framing, plumbing electrical and other detailed plans that are generally not prepared until zoning review is completed and issuance of a permit is a certainty, subject to building code review and compliance. More importantly, all the parties are deprived of the ability to resolve on a timely basis issues that already have been framed in what is often an elaborate site plan review process. Waiting for the preparation of detailed building plans, the issuance of a building permit, and the ensuing appeal process to proceed, in order to resolve issues that could be timely addressed by a direct appeal of a site plan approval that, although not denominated as a special permit, involved a detailed application requirement and a comprehensive public comment and hearing process, hardly seems the best way to promote an efficient and timely resolution of issues that had been fully framed by the conclusion of the site plan review process.

The hodge-podge of approaches taken by municipalities to site plan review is likely not a result of their desire to tailor their bylaws to their individual needs. Rather, in adopting site plan review bylaws, municipalities appear to be struggling with how best to put together a complicated tool for which they were given no assembly instructions. The problem cries out for a legislative solution in the form of an amendment to G. L. c. 40A providing municipalities with a standard procedure and appellate path for review of site plans. Lacking such instructions, municipalities like Rockland, and developers and abutters, like those in this case, are left with an inadequate tool for which the courts can offer tape and baling wire but no real fix.

The Rockland Zoning Bylaw provides an elaborate application process requiring an applicant to address a variety of complex issues, including grading, floodplains, wetlands, traffic and parking, drainage, sewage disposal, screening, lighting, and other site-related issues, in a comprehensive manner. The Bylaw and implementing regulations require comments by other town agencies and boards, and they provide for a full public hearing of the issues. Nevertheless, notwithstanding this elaborate review procedure, as the review is preliminary to the issuance of a building permit, and as the Bylaw provides no other avenue of appeal, under the holdings of St. Botolph and Dufault, certiorari review is not available, nor is other review available except by appeal of the grant of a building permit. Accordingly, the decision of the Planning Board is not ripe for review, and the Complaint must be dismissed.

CONCLUSION

For the foregoing reasons, the plaintiffs' motion for judgment on the pleadings is DENIED, and the Planning Board's cross motion for judgment on the pleadings is ALLOWED.

Judgment will enter dismissing the certiorari count of the Complaint and declaring the parties' rights with respect to the declaratory judgment count of the Complaint.