ABNER KURTIN, JOHN COSIMINI and HELEN COSIMINI, ANTHONY and JUDY COSIMINI, HAROLD and SALLY LEGGE, LEADE SARRAM and REZA MOLLAAGHABABA, RICHARD and ALBINA SHATZMAN, VALERIE MOLINA and MATTTHEW WAGSTAFF v. TOWN OF NATICK PLANNING BOARD; GLEN GLATER, Chairman, and TERRI EVANS, Clerk, and ANDREW MEYER, Member, and JULIAM MUNNICH, Member, and PETER NOTTONSON, Vice Chairman, and JOHN WADSWORTH, Associate Member, as members of the Natick Planning Board and not individually; DOGGY DATES, LLC, and ELIZABETH HUNNEWELL

The plaintiffs are neighbors of a property in a single-family residence district for which the Natick Planning Board issued a special permit for the conducting of a business providing day care for dogs. The plaintiffs have challenged the issuance of the special permit on several grounds, including that the Board failed to make findings supporting the issuance of a special permit, the Board failed to issue a required site plan approval, and the authorized use is not a "dog kennel" within the meaning of the Natick Zoning Bylaw (the "Bylaw").

The plaintiffs filed a complaint on September 4, 2018, and an amended complaint on December 3, 2018. In their amended complaint, the plaintiffs asserted a single claim under G. L. c. 40A, §17, asking the Court to annul a decision of the town of Natick Planning Board (the "Board" or "Planning Board") granting the defendant Doggy Dates, LLC ("Doggy Dates") a special permit to operate a dog kennel.

The plaintiffs filed a motion for summary judgment on June 4, 2019. Doggy Dates filed a cross-motion for summary judgment on July 10, 2019, seeking a ruling that the plaintiffs have no standing to appeal the issuance of the special permit, and that the defendant's activity qualifies as a kennel within the definition provided in the Town of Natick Zoning Bylaw.

A summary judgment hearing was held on September 11, 2019. At the summary judgment hearing, I ruled from the bench that the use allowed by the special permit was a dog kennel as defined by the Bylaw, but based on the Planning Board's failure to issue written findings and its failure to consider site plan approval as required by the Bylaw, the Planning Board's decision would be annulled. However, based on the parties' disclosure at the hearing of an amendment to the Bylaw, whether the matter would be remanded to the Planning Board would be the subject of a separate order. Following a telephone conference with counsel for the parties on October 2, 2019, the parties submitted additional briefs on the question of applicability of the amendment to the Bylaw. The parties filed the additional briefs by November 4, 2019, and I took the matter under advisement on that date. For the reasons stated below, the Board's decision granting the special permit will be annulled, and judgment will be entered for the plaintiffs, without a remand to the Planning Board.

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:

THE PARTIES and THE LOCUS

1. Plaintiffs Abner Kurtin, John Cosimini and Helen Cosimini, and Harold and Sally Legge each own properties that abut 42 Leach Lane directly. [Note 1] Plaintiffs Leada Sarram and Reza Mollaaghababa, Richard and Albina Shatzman, Valerie Molina, and Matthew Wagstaff, each own properties that lie within 300 feet of 42 Leach Lane, with only one intervening property. [Note 2] Plaintiffs Anthony and Judy Cosimini rent property owned by Helen Cosimini, which abuts 42 Leach Lane directly.

2. The defendant, Doggy Dates, LLC, is a Massachusetts limited liability company with a principal place of business at 15 Strawberry Hill Road in Natick. [Note 3] Since 2011, Doggy Dates has been in the business of providing supervision and activity services for dogs, characterized as "play dates." [Note 4] Doggy Dates has leased a portion of a 50-acre property located at 42 Leach Lane since 2016 for this purpose (the "locus"). [Note 5] The property is owned by defendant Elizabeth Hunnewell. [Note 6]

3. The locus was previously accessed by Doggy Dates using Leach Lane, as well as by Brook Street and Pond Street. [Note 7] In 2018, Doggy Dates stopped using Leach lane to access the locus, [Note 8] and began using primarily Brook Street for access. [Note 9]

4. Doggy Dates initially operated its business at the locus without authorization from the town for about two years. It submitted an application for a special permit to the Planning Board in April 2018. [Note 10] The application sought a special permit "to continue to operate our dog kennel at 42 Leach Lane." [Note 11] The application did not include a request for site plan approval.

5. The locus is situated in an "RS" district zoned for residential single-family use. [Note 12] At the time Doggy Dates submitted its application for special permit, the use of a property in this district as a "Dog Kennel" was a "[u]se allowed under a Special Permit as granted by a Special Permit Granting Authority" [Note 13] as provided in the Bylaw. [Note 14]

6. During the time Doggy Dates has been in operation, it has operated at the locus on weekdays from 8:30 A.M. to 3:30 P.M. [Note 15] Each "play date" lasts for no more than 45 minutes, [Note 16] and is attended by an up to 30 dogs. [Note 17] Three times a day, dogs are transported to the site in up to three vans. [Note 18]

THE BYLAW

7. Section VI-DD.2.A(b) of the Bylaw provides:

The following criteria shall be the minimum basis for all decisions on special permits, in addition to criteria as may be more specifically provided elsewhere in this By-Law. Special permits shall be granted by the Special Permit Granting Authority as specified herein only upon its written determinations for each of the following factors that the proposed use will not have adverse effects which outweigh its beneficial effects for both the neighborhood and the Town, in view of the particular characteristics of the site and of the Town, in view of the particular characteristics of the site and of the proposal in relation to the site. The determinations shall be made separately for and indicate consideration of each of the following criteria:

1. Social, economic, or community needs which are served by the proposal;

2. Adequacy of traffic flow and safety, including parking and loading;

3. Adequacy of utilities and other public services

4. Neighborhood character and social structures;

5. Impacts on the natural environment

6. Potential fiscal impact, including impact on town services, tax base, and employment; and

7. Conformity with the purposes and objectives of both this zoning by law and the district which the property is situated. [Note 19]

(emphasis added)

8. At the time of the Board's consideration of the Doggy Dates application, the Bylaw defined "Dog Kennel" as follows:

One pack or collection of dogs on a single premises, whether maintained for breeding, boarding, sale, training, hunting or other purposes and including any shop where dogs are on sale, and also including every pack or collection of more than three dogs three months old, or over, owned or kept by a person on a single premises irrespective of the purpose for which they are maintained. [Note 20]

9. In an RS district, a dog kennel may be permitted by the issuance of a special permit and site plan approval issued by the Planning Board. [Note 21]

10. The Bylaw further provides, in Section VI-DD.1(a), that, "Unless specifically exempted in Section VI-DD.2.B), all uses requiring Special Permits under this Zoning By-Law shall require Site Plan Review in accordance with VI-DD.2.B." [Note 22] Section VI-DD(2.B)(a) designates the Planning Board as the special permit granting authority for all uses in RS districts, and further exempts certain listed uses by their numbers in the Use Regulations Schedule in Section III-A.2 of the Bylaw - but does not exempt dog kennels, listed as no. 53 in the Schedule, from the requirement that Site Plan Review must be applied for and approved, in addition to, and as prerequisite to, approval of a special permit. [Note 23]

11. The parties stipulated, and the court so finds, that on April 30, 2019, the Natick Town Meeting voted to approve a proposed amendment to the Bylaw. [Note 24] The parties further stipulated that where the earlier Bylaw had had one dog kennel use designation, the amended Bylaw split dog kennel uses into four distinct uses, including two commercial uses as follows:

Commercial Boarding or Training Dog Kennel: An establishment, other than a Home Occupation/Customary Home Occupation Dog Kennel as defined herein, used for boarding, holding, day care, overnight stays or training of dogs that are not on the property of the owner of the establishment, at which such services are rendered in exchange for consideration and in the absence of the owner of any such dog[.]

Commercial Breeder Dog Kennel: An establishment, other than a Personal Dog Kennel or Home Occupation/Customary Home Occupation Dog Kennel as defined herein, engaged in the business of breeding dogs for sale or exchange to wholesalers, brokers, or pet shops in return for consideration. [Note 25]

THE SPECIAL PERMIT DECISION

12. Doggy Dates submitted an application for a special permit dated April 17, 2018. [Note 26] On the application form, under the heading "Check what relief/permits being sought:" the box for "special permit" was checked; the box for "site plan review" was not checked. [Note 27] The record does not disclose the filing of any site plan conforming to the requirements for site plans in the Bylaw, found in Section VI-DD.3(b). Accordingly, I find that Doggy Dates did not apply for Site Plan Review as required by the Bylaw.

13. The Board commenced a public hearing on Doggy Dates' application for a special permit on May 23, 2018. [Note 28] The hearing was continued to June 6, 2018, July 11, 2018, and August 8, 2018. [Note 29]

14. On August 8, 2018, the Board voted to close the public hearing, and approved the special permit. The Board's written decision, filed with the town clerk on August 13, 2018, stated its complete findings as follows:

"After considering all of the information and material submitted, including the Plans and correspondence it has received and comments made at the Public Hearing, the Board makes the following findings:

The proposed kennel use, #53 of Section III-A.2 Use Regulations Schedule, is allowed under a Special Permit in a residential single family zoning district. The Planning Board has jurisdiction to act as the SPGA (Special permit Granting Authority) for that use." [Note 30]

15. The Board's decision included conditions as part of its approval of the special permit, as follows:

"After deliberation and consideration of all of the foregoing, and after making the specific findings as set forth herein, the Planning Board, at its meeting on July 11, 2018, voted to GRANT the special permit, subject to the following conditions:

1. The hours of operation for the facility shall be limited to 8:30 AM to 3:30 PM, Monday through Friday.

2. There shall be no more than three (3) Doggy Dates vehicles, three (3) times per day accessing the property at 42 Leach Lane via Brook Street. No customer access if allowed via Brook Street to 42 Leach Lane.

3. The Applicant shall provide the Community & Economic Development Department with the name and contact information, updated as needed, for the designated on-site contact person. Abutters are encouraged to contact the designated contact person and provide information in respect to any reasonable concerns regarding the operation of the kennel.

If there is any concern regarding any substantial unresolved issues, abutters shall have the right to provide a written statement outlining the issues to the Community & Economic Development Department and/or the Natick Planning Board, with a copy of the Business Owner and designated contact person.

4. The Applicant shall comply with the Natick Board of Health Dog Waste Disposal Standard Operating Procedures.

5. This special permit is for the specific use and property owner as outlined herein. Any changes/modifications shall be reviewed and approved by the Planning Board." [Note 31]

DISCUSSION

"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), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, 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." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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), as amended, 436 Mass. 1404 (2002).

Additionally, "a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). To succeed, the party moving for summary judgment does not need to submit affirmative evidence to negate one or more elements of the opposing party's claim, but the motion must be supported by some material contemplated by Rule 56(c). Id. Though the supporting material offered does not need to disprove an element of the claim of the party who has the burden of proof at trial, it "must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.

I. THE PLAINTIFFS HAVE STANDING TO APPEAL THE BOARD'S APPROVAL OF A SPECIAL PERMIT TO DOGGY DATES BECAUSE THEY ARE ENTITLED TO A PRESUMPTION OF STANDING, WHICH HAS NOT BEEN REBUTTED

Pursuant to G. L. c. 40A, §17, "Any person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the land court department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk." Chapter 40A, §11 provides that certain parties are "parties in interest," who have a presumption of aggrievement (and, therefore, of standing): "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within three hundred feet of the property line of the petitioner[.]" As abutters to the locus, or abutters-to-abutters within 300 feet of the locus, the plaintiffs enjoy a rebuttable presumption of standing to challenge the decision of the Board. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). [Note 32] "If standing is challenged, the jurisdictional question is decided on 'all the evidence with no benefit to the plaintiffs from the presumption.'" Id., quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992). The party challenging the plaintiff's presumption of standing, either as an abutter or as an abutter-to-an abutter, can successfully challenge "by offering evidence 'warranting a finding contrary to the presumed fact.'" 81 Spooner Rd., LLC v. Zoning Bd. of Appeals Brookline, 461 Mass. 692 , 700 (2012), quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). If the challenging party does present enough evidence "to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals Brookline, supra, 461 Mass. at 701. Once the plaintiff's presumption of standing has been rebutted, the plaintiff has the burden of then "proving, by direct facts and not speculative evidence, that they would suffer a particularized injury as a consequence" of a zoning board decision. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). Conversely, if the party challenging the plaintiff's standing fails to offer sufficient evidence to rebut the presumption of standing, then the plaintiff "is deemed to have standing, and the case proceeds on the merits." 81 Spooner Rd., LLC, v. Zoning Bd. of Appeals Brookline, supra, 461 Mass. at 701.

The plaintiffs in this case are all either abutters or abutters-to-abutters within 300 feet of the locus. Therefore, they are entitled to a presumption of aggrievement and standing to appeal the Board's decision to grant defendant Doggy Dates a special permit. The defendants must rebut this presumption with evidence that would support a finding to the contrary. Doggy Dates has offered no direct evidence to rebut the plaintiffs' presumption of standing, but argues instead that the plaintiffs' alleged injuries are de minimis and thus fail to amount to aggrievement as a matter of law.

First, Doggy Dates argues that the plaintiffs' concern about increased traffic over Brook Street is insufficient to amount to injury that would support standing. Doggy Dates did not offer any evidence to rebut the plaintiffs' stated concerns about the undisputed up to eighteen vehicular trips per day, transporting as many as ninety dogs, necessary to service the Doggy Dates facility. Rather, Doggy Dates disputes the characterization of eighteen vehicle trips a day over Brook Street as an appreciable harm giving rise to standing.

Doggy Dates further submits that the plaintiffs' concerns about noise from the dogs also fall short of amounting to the necessary aggrievement for standing. Doggy Dates points to the fact that the plaintiffs have not introduced evidence of "the length of time a barking sound may be heard," "any written complaint to the Town of Natick" over the barking, or the "number of times during the day that a Plaintiff may hear barking." [Note 33] With this argument, it is apparent that Doggy Dates misunderstands the respective burdens on the parties. The plaintiffs enjoy a presumption of standing, and do not need to produce particularized evidence of their aggrievement in order to enjoy the presumption, but here, they have done so by submitting evidence of harm related to traffic and noise. That required Doggy Dates, in order to rebut the plaintiffs' presumptive standing, to produce enough evidence to "warrant a finding contrary to the presumed fact" of the plaintiffs' aggrievement; it is only then that the plaintiffs would in turn need to produce particular evidence of their harm. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals Brookline, supra, 461 Mass. at 701. To rebut the presumption, Doggy Dates notes that Doggy Dates uses "bark collars[] and ultrasonic bark boxes to help keep the dogs quiet." [Note 34] Even drawing all inferences in the light most favorable to the defendants, this evidence offered to rebut the plaintiffs' presumption of standing does not actually rebut the plaintiffs' allegations; it merely validates the plaintiffs' complaint about noise and indicates that some efforts to contain the noise have been made, with no indication that these efforts have been successful. No evidence whatsoever is offered with respect to the alleged traffic harms.

While it is true that allegations of aggrievement that are de minimis as a matter of law will not give rise to standing even where the plaintiff is an abutter, Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. 115 , the defendants have not made any such showing in the present case. Eighteen additional vehicular trips on a small private way like Leach Lane cannot be said to be de minimis as a matter of law, and it behooved the defendants to offer evidence rebutting this evidence of injury to the plaintiffs (which the plaintiffs presented by affidavit). Similarly, the plaintiffs, although not required to do so, offered evidence of injury due to noise from barking dogs, which the defendants conclusorily labeled as de minimis, but offered no evidence to rebut the evidence of the plaintiffs' injury in this respect. The evidence offered by the plaintiffs was not speculative, and provides support for their presumption of standing that the defendants have failed to rebut as a matter of law.

Because the defendants have failed to rebut the plaintiffs' presumption of standing, the plaintiffs do not need to come forward with additional facts and non-speculative evidence that they would suffer a particularized harm. Contrary to the defendants' contentions, the plaintiffs have standing to challenge the Board's issuance of a special permit in this matter, based on their unrebutted presumption of standing as abutters or abutters to abutters within 300 feet.

II. THE BOARD'S DECISION WAS INVALID BECAUSE IT FAILED TO COMPLY WITH THE REQUIREMENTS FOR FINDINGS IN SPECIAL PERMIT DECISIONS

"General Laws c. 40A, §9 requires the board to make a detailed record of its proceedings clearly setting forth the reason for its decision." Efekta School, Inc. v. City of Cambridge, 66 Mass. App. Ct. 1113 , *3 (2006), citing Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 55-56 (2005). When granting a special permit, the board must "set forth the reasons for its decision that [the] proposed development meets the applicable statutory and bylaw standards . . . including affirmative findings as to the existence of each condition required for the granting of the special permit." Sheehan v. Zoning Bd. of Appeals of Plymouth, supra, 65 Mass. App. Ct. at 55-56 (citations omitted). Failure to make such findings upon grant of a special permit can result in annulment of the board's decision.

Under § VI-DD.2.A(b) of the Bylaw, the special permit granting authority (here, the Board) may grant special permits to applicants "only upon its written determinations" for each of seven listed criteria. These criteria are to be the "minimum basis for all decisions on special permits[.]" [Note 35] However, the Board's decision granting Doggy Dates a special permit does not include written determinations as to any of the seven required considerations. In fact, the decision does not contain any written findings whatsoever, even conclusory ones. Rather, the decision makes the "findings" that the proposed use of the locus as a kennel is allowed. This conclusion is not a finding, but is merely a recitation of the provision in the Bylaw that the use is allowed upon the granting of a special permit. The Board does not indicate on what factors, if any, it based its determination that the proposed use met the seven required criteria, in either perfunctory terms or as required more thoroughly by the Bylaw. Nowhere does the decision discuss or purport to make findings - even in a conclusory fashion (which would of course not in itself be enough) - with respect to "social, economic, or community needs which are served by the proposal"; "adequacy of traffic flow and safety, including parking and loading"; "adequacy of utilities and other public services"; "neighborhood character and social structures"; "impacts on the natural environment"; "potential fiscal impact, including impact on town services, tax base, and employment"; and "conformity with the purpose and objectives of both this zoning [bylaw] and the district [in] which the property is situated," as required by Section VI- DD.2.A(b). This fact is undisputed by Doggy Dates. Given this undisputed fact and the relevant Bylaw, the Board's decision appears to fail on its face to conform to what is mandated by the Bylaw.

However, even where a special permit granting authority fails to comply with the written findings requirement of its local bylaw, a board's decision can stand if it includes plentiful, detailed conditions that may serve as findings. Detailed conditions imposed by a board can "do double duty as findings." Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 621 (1986). In GPH Cohasset, LLC v. Trustees of Reservations, the court held that thirty-seven detailed conditions included in the board's issuance of a special permit could indeed do "double duty" as findings, and upheld the special permit decision by the board. GPH Cohasset, LLC v. Trustees of Reservations, 85 Mass. App. Ct. 555 , 558-559 (2014). The conditions must indicate that "there exists a rational basis for issuing the Approval Decision." GPH Cohasset, LLC v. Trustees of Reservations, 21 LCR 290 , 298 (2013) (Sands, J.), citing Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).

Here, the Board issued its special permit decision with five enumerated conditions. The first two conditions placed limits on the hours that Doggy Dates could operate and the number of trips that its vehicles could take over Brook Street each day. The third condition requires that Doggy Dates outlines how abutters can raise their concerns with Doggy Dates and with the Community and Economic Development Department. The fourth merely states that Doggy Dates must comply with local dog waste disposal procedures, and the fifth concludes by noting that the special permit is issued only to the present owner and for the specific use "as outlined herein[,]" with any proposed changes requiring separate approval. These conditions do not adequately address the seven written determinations required by the Bylaw. While they arguably suggest consideration of some of the required criteria (such as adequacy of traffic flow), they do not together comprise the kind of detailed and numerous conditions that would stand in for written findings.

There is nothing in the conditions that could arguably stand in as a finding with respect to how the proposed use of the locus as a dog kennel in a residential neighborhood serves the "social, economic, or community needs;" there is nothing addressing adequacy of utilities and other public services; there is nothing addressing the relationship between the proposal and "neighborhood character and social structures;" there is nothing to address "impacts on the natural environment," an especially apt concern given the nature of the proposal; and there is nothing in the conditions or decision addressing "conformity with the purposes of both this zoning bylaw and the district [in] which the property is situated," another especially apt concern to be addressed given the nature of the proposed use. For this reason, the listed conditions in the Board's decision do not suffice as the written determinations and findings required by the Bylaw.

Because of the Board's failure to adhere to the requirements of Bylaw § VI-DD.2.A(b), its decision granting a special permit to Doggy Dates is legally untenable, insufficient and invalid as a matter of law.

III. THE BOARD'S DECISION WAS INVALID BECAUSE DOGGY DATES DID NOT APPLY FOR, AND THE BOARD DID NOT CONDUCT THE REQUIRED SITE PLAN REVIEW

Chapter 40A of the Massachusetts General Laws does not specifically address site plan review. Dufault v. Millenium Power Partners, L.P., 49 Mass. App. Ct. 137 , 138-139 (2000). However, "the use of site plan approval as a permissible regulatory tool for controlling the aesthetics and environmental impacts of land use" has been recognized for decades. Id. at 139. The special permit application process in Natick is explicitly linked to site plan review by the Bylaw.

Section VI-DD.1(a) of the Bylaw mandates that "[u]nless specifically exempted in Section VI-DD.2.B, all uses requiring Special Permits under this Zoning By-Law shall require Site Plan Review in accordance with VI-DD.2.B." [Note 36] Dog kennels, listed as no. 53 in the Bylaw's Schedule of Uses, are a use that is not exempted from the site plan review requirement in the Bylaw. Thus, the Board was required to conduct a site plan review in conjunction with Doggy Dates' special permit.

To avoid the consequences of this result, Doggy Dates first argues that the Board did in fact conduct site plan review, as the transcript of the special permit hearing shows that members of the Board did indeed discuss site plan review. While it is true that Board members discussed site plan review at the hearing, it is undisputed that Doggy Dates did not apply for site plan review, and thus no application for site plan review was advertised. Nor did Doggy Dates submit a site plan complying with the Bylaw requirements (or even one not so complying), and accordingly any discussion of site plan review at the hearings before the Planning Board was gratuitous, as it had no application for site plan review before it to consider. Furthermore, the Board did not purport to vote to approve any site plan, nor did it mention any site plan review or site plan in any written decision. A Board's cursory discussion of some issues involved in site plan review does not amount to actual site plan review. As noted above, Doggy Dates did not apply for site plan review in its application for a special permit. The special permit application form includes a check-box labeled "site plan review," which was not checked off by Doggy Dates in its application. Therefore, to the extent that the Board discussed or considered site plan review, it did so when the matter was not properly before it.

I ruled from the bench at the summary judgment hearing that the Planning Board's failure to have before it, or consider, site plan review required annulment of the special permit, and the above discussion addresses the arguments raised by Doggy Dates at the hearing. However, in conjunction with the additional briefing I authorized in the October 2, 2019 telephone conference, Doggy Dates requested that the court reconsider its ruling on the site plan review issue, and offered a new argument, claiming that the Planning Board permissibly waived site plan review.

The Bylaw permits waiver of the review in limited circumstances. Specifically, Section VI.DD(4) of the Bylaw provides, "The [Board] shall not require a Site Plan Review where the nature of the proposed construction, alteration or use is such as to have a minimal effect on any of the standards or criteria provided for hereafter in this Section, when measured against existing conditions of the site." This argument fails as well. Doggy Dates points to nothing in the transcript of the hearing, and certainly there is nothing in the Planning Board's written decision, indicating that the Board considered or made a finding that the proposed dog kennel met the standards for waiver of site plan review. Such a finding would have to be made in its written decision, but is not even found in the transcript in the record. Essentially, Doggy Dates is making the argument that the very fact that the Planning Board did not address site plan review in its decision supports a conclusion that the Planning Board intended to and did waive the requirement for site plan review. That is a legally untenable argument.

The fact remains, then, that the Board did not have an application for site plan review properly before it, did not have a request for waiver of site plan review before it, did not have an actual compliant site plan in the record to review, did not purport, either orally or in its decision, to approve a non-existent site plan or to waive site plan review, and did not properly waive such review. Accordingly, since no site plan review was conducted as required, and no waiver of the requirement was appropriately made, the special permit decision is invalid as a matter of law.

Because the decision issued by the Board both lacked written findings and a site plan review, as required by the Bylaw, the decision granting Doggy Dates a special permit to operate its dog kennel will be annulled.

IV. THE CURRENT BYLAW GOVERNS THE ISSUANCE OF A SPECIAL PERMIT TO DOGGY DATES

What would have been a simple decision to remand this matter to the Planning Board to conduct a new hearing was complicated by the parties' disclosure at the summary judgment hearing that the Bylaw, following the Planning Board's decision in this matter, has been amended in a way that makes Doggy Dates' proposed dog kennel use a prohibited use in the RS zoning district in which the subject property lies. Therefore, a remand following the annulment of the decision would be a fruitless exercise if the amended Bylaw applies. In order to have its property subject to the version of the Bylaw in effect prior to the recent amendment, Doggy Dates would need to either demonstrate that its use is entitled to the zoning freeze provisions of G. L. c. 40A, §6, or that its use was otherwise a lawful nonconforming use when the special permit was granted.

Under G. L. c. 40A, §6, a "zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five[.]" ("Chapter 40A, §6"). Pursuant to Chapter 40A, §6, a Board considering Doggy Dates' application for special permit on remand would be governed by the earlier Bylaw if a zoning freeze were in effect. If no zoning freeze was in effect, the Board would be obligated to consult the current, amended Bylaw in making its determination of whether to issue a special permit.

It is undisputed that Doggy Dates applied for a special permit in April 2018, and was granted one by the Board on August 8, 2018. [Note 37] It is also undisputed that the Natick Town Meeting voted to approve an amendment to the Bylaw by vote held on April 30, 2019. In order for Doggy Dates to benefit from a zoning freeze or from status as a lawful prior nonconforming use, it must have been issued a valid special permit. As discussed above, the special permit issued to Doggy Dates was legally untenable because it failed to include written determinations of the seven factors required by the Bylaw, and because the Doggy Dates failed to apply for site plan review. For want of a valid special permit, unless it had a "plan freeze" in effect, Doggy Dates cannot rely on Chapter 40A, §6 for a zoning freeze. Without the operation of a zoning freeze, the Board, on remand, would be obligated to apply the current, amended Bylaw to Doggy Dates' application for special permit. Doggy Dates properly does not argue that it has the benefit of any of the so-called "plan freeze" protections of G. L. c. 40A, §6, as it has not shown that it had submitted an "approval not required" plan pursuant to G. L. c. 41, §81P, or a preliminary or definitive subdivision plan pursuant to other provisions of the Subdivision Control Law, G. L. c. 41, §§81K, et seq.

Doggy Dates could benefit from the older Bylaw if it was engaged in a lawful nonconforming use when the Bylaw was amended. "An amendment to a zoning bylaw does not apply to a use lawfully in existence when the bylaw was amended." Leonard v. Zoning Bd. of Appeals of Hanover, No. 18-P-589, slip op. at 8 (Mass. App. Ct. Nov. 13, 2019), citing G. L. c. 40A, §6, first par. "[A] use achieves the status of nonconformity for statutory purposes if it [lawfully] precedes the coming into being of the zoning regulation which prohibits it." Id., quoting Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 529-530 (1990). "Preexisting nonconformities become protected when zoning laws change, as a result of the long-standing recognition that 'rights already acquired by existing use or construction of buildings in general ought not to be interfered with.'" Mendes v. Bd. of Appeals of Barnstable, supra, 28 Mass. App. Ct. at 529-530, quoting Opinion of the Justices, 234 Mass. 597 , 606 (1920).

It is undisputed that the use of the Doggy Dates property as a dog kennel was not lawful when it was commenced prior to the issuance of the special permit, so that use cannot be the basis of a claim of nonconforming use status. Rather, Doggy Dates argues that its use was lawful when the special permit was issued, and therefore is entitled to nonconforming use status on that basis. However, that special permit has been annulled. A "person exercising rights under a duly appealed special permit does so at risk that a court will reverse the permit and that any construction performed under the permit may be ordered undone." G. L. c. 40A, §11, sixth par. It is not necessary for the court to address whether the operation of the dog kennel under the now-annulled special permit qualified as a lawful nonconforming use, because the annulment renders that question moot. However, it would be anomalous to recognize lawful nonconforming use status for an at-risk use under a special permit while the special permit is under appeal, where the special permit is ultimately determined to have been issued unlawfully.

V. NO REMAND WILL BE ORDERED BECAUSE UNDER THE CURRENT BYLAW THE BOARD DOES NOT HAVE AUTHORITY TO ISSUE A SPECIAL PERMIT ALLOWING FOR USE OF THE LOCUS AS A DOG KENNEL

As I have determined that the current Bylaw would be applicable to any consideration of the Doggy Dates application on remand, and the Bylaw now prohibits the proposed use, the Planning Board would be without authority to issue a special permit, and accordingly, there is no value to remanding the matter. Doggy Dates argues that it is unnecessary for the court to annul the special permit, and urges the court to remand the matter, without annulment, so that the Planning Board could address the issue of its lack of findings on the existing record, without the need for advertising a new hearing and taking new evidence. A court may remand for further findings without annulling a decision where the decision's findings were inadequate but were "remediable" on remand. Williams v. Bldg. Comm'r of Boston, 1 Mass. 478 , 481 (1973); Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App. Ct. 343 , 344 (1986). That is not the case here. A remand in the present case requires new hearings and new evidence, making a remand without annulment inappropriate. At a minimum, on remand, Doggy Dates would be required to file an application for site plan review and to submit a site plan and other new information to enable the Planning Board to properly consider whether a site plan review could be approved in conjunction with an approval of the special permit. Since this could not be done without annulment and a new hearing, and since there is no plan freeze in place or other nonconforming protection status for the use, the amended Bylaw would apply, making a remand a pointless exercise.

CONCLUSION

For the reasons stated above, plaintiffs' motion for summary judgment is ALLOWED. The defendant Doggy Dates, LLC's cross-motion for summary judgment is DENIED in all respects. Judgment will enter in accordance with this decision.