WARREN INNIS, as Trustee of A & W REALTY TRUST II, PAUL DiABIASE, as Trustee of SHERWOOD HILLS REALTY TRUST, and PAUL DiABIASE, as Trustee of OSBORNE HILLS REALTY TRUST, Plaintiffs v. THE CITY OF PEABODY, Defendants

Introduction

In 2011, the City of Peabody (City) amended its entire Zoning Ordinance (ordinance), including its Inclusionary Zoning provision in § 6.11. This provision requires housing developments of a certain size to provide affordable housing; in exchange, it provides for various incentives, depending on the Zoning District in which the development lies. In so amending the ordinance, the City omitted from § 6.11.5 the incentives for the R1, R1A, and R1B Zoning Districts that had been in the previous version of the ordinance. The defendants are owners of property in the R1 district who wish to build housing developments that would fall under the Inclusionary Zoning provision. They claim that the lack of incentives renders the Inclusionary Zoning provision unconstitutional as applied to their properties, and have moved for summary judgment.

In response, the City has demonstrated through undisputed facts that the absence of the incentives in those residential districts is the result of a clerical error -- indeed, the City Council expressly voted to keep the previous incentives when it approved the zoning amendment. Applying Commonwealth v. Maloney, 447 Mass. 577 (2006), the court finds that in order to follow the legislative intent of the City Council, § 6.11.5 must be interpreted to include the erroneously omitted incentives. As a result, the summary judgment motion will be denied and judgment entered in favor of the City.

Procedural History

Plaintiffs Warren Innis, as Trustee of A & W Realty Trust II (A&W), Paul DiBiase, as Trustee of Sherwood Hills Realty Trust (Sherwood Hills), and Paul DiBiase, as Trustee of Osborne Hills Realty Trust (Osborne Hills), (together, the Trusts) filed their Complaint on June 12, 2019, naming the City as defendant and Maura Healy, as she is the Attorney General of the Commonwealth of Massachusetts (Attorney General), as interested party. The City filed its Answer on July 5, 2019. The Trusts dismissed their claims against the Attorney General on July 5, 2019. The case management conference was held on July 15, 2019. On August 23, 2019, the Trusts filed their Motion for Summary Judgment and Rule 4 Statement of Material Facts with Appendix. On October 16, 2019, the City filed Defendant's Opposition to Plaintiff's Motion for Summary Judgment, Defendant's Response to Plaintiff's Rule 4 Statement of Material Facts, and the Affidavit of Timothy Spanos (Spanos Affidavit or Spanos Aff.). The Trusts filed their Reply Memorandum in Support of Plaintiffs' Motion for Summary Judgment and their Rule 4 Statement of Material Facts, with Defendant's Responses and Defendant's Additional Material Facts with Plaintiffs' Reponses (Facts) on October 25, 2010. The Motion for Summary Judgment was heard on October 30, 2019, and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

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). Where the non-moving party bears the burden of proof, the "burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Regis College, 462 Mass. at 291-292.

Facts

The following facts are undisputed.

1. The City is a Massachusetts Municipal Corporation having a usual place of business at Peabody City Hall, 24 Lowell Street, Peabody, Massachusetts 01960. Facts ¶ 4.

2. Before April 8, 2011, § 4.6.11 of the ordinance, the Inclusionary Zoning provision, read as follows:

To facilitate the objectives of this Ordinance, modifications to the dimensional or parking requirements in the applicable zoning district shall be permitted for projects subject to the requirements of this Ordinance. The modifications shall be permitted as set forth below. The following incentives are available only for projects in which the affordable units are provided on-site or off-site.

(1) In any R1, R1A, R1B, R2, R3, R4, R5, BN, MPRD, PRD, DDD or BC district: Applicable application fees or building permit fees imposed by the City in connection with all Affordable Units shall be waived.

(2) In any R1, R1A, R1B, R2, R3, R4, R5, BN, MPRD, PRD, DDD, or BC district: A minimum of 2.0 parking spaces per housing unit, inclusive of visitor parking, shall be provided.

(3) In addition, the affordable units shall be exempted in calculations pertaining to lot coverage, floor area ratio, and minimum lot area and size and any other area calculations.

Spanos Aff. ¶ 5.

3. On July 8, 2010, the Peabody City Council, meeting as a Committee of the Whole, held a zoning revision meeting. Part of the revisions of the ordinance they were considering was a revised Inclusionary Zoning provision, to be changed from § 4.6.11 to § 6.11.5. As part of this revision, the City Council unanimously voted at the meeting to preserve the language of the existing Incentives section of the ordinance's Inclusionary Zoning provision, § 4.6.11 quoted above, in the proposed § 6.11.5 Incentives Section of the revised Inclusionary Zoning provision of the ordinance. Spanos Aff. ¶ 2, Exh. A, Pages 16-18.

4. On March 3, 2011 and March 20, 2011, legal notices of a public hearing scheduled for March 24, 2011 to consider amending the ordinance and zoning map of the City were published in the Peabody City Council Weekly News. Spanos Aff. ¶ 3, Exh. B.

5. On April 28, 2011, the City Council approved an "omnibus" modernization of the entire ordinance. Due to an oversight and clerical error, § 6.11.5 of the modernized ordinance, the Inclusionary Zoning incentives section, did not contain any reference to the incentives in the R1, R1A and R1B Zoning Districts that were in the former § 4.6.11 incentives section, which was contrary to what was voted by the City Council on the July 8, 2010 meeting. Answer ¶ 11; Spanos Aff. ¶ 5, Exh. A; Facts, Exh. 5.

6. As a result of this error, § 6.11.5 of the ordinance, "Incentives," provides a variety of developer incentives, and reads as follows:

To facilitate the objectives of this section, modifications to the dimensional or parking requirements in the applicable zoning district shall be permitted for projects subject to the requirements of this section. The modifications shall be permitted as set forth below. The following incentives are available only for projects in which the affordable units are provided on-site.

(1) In any R2 district: The minimum area of land required per lot shall be 5,000 square feet per two-family dwelling unit.

(2) In any R3 district: The maximum lot coverage may be increased to 30% from the currently allowed 20%. An area equal to twice the total area of the required affordable units may be exempted from the total square footage in calculations pertaining to the FAR. Twice the number of bedrooms in the affordable units may be exempted from the total number of bedrooms in calculations pertaining to land area required per bedroom.

(3) In any R5 district: Developments may exempt twice the number of affordable dwelling units required by current zoning and an equal number of additional market rate units when calculating the maximum number of dwelling units per acre. Concurrently, developments may exempt twice the number of affordable bedrooms required by current zoning and an equal number of additional bedrooms when calculating the maximum number of bedrooms per acre.

(4) In any R4 or BC district: The following requirements shall be substituted for the off street parking space requirements listed in section 9.

Multifamily apartment or condominium complexes consisting of fifty (50) units or fewer, regardless of whether said units are contained within one (1) or more buildings or phases, shall provide a minimum of 2.0 spaces per unit inclusive of visitor parking. Multifamily apartment or condominium complexes consisting of greater than fifty (50) units shall provide a minimum of 1.8 spaces per unit inclusive of visitor parking.

(Emphasis in original). Facts ¶ 5, Exh. 3.

7. Section 6.11.5 of the ordinance has not been amended since April 28, 2011 and still provides no developer incentives for the development of affordable housing in the R1, R1A and R1B Districts. The two prior published editions of the ordinance, published in 2013 and 2011, respectively, also provide no developer incentives for properties in the R1, R1A and R1B Districts. Facts ¶¶ 5, 9.

8. A&W, u/d/t dated October 20, 2015 and recorded at Essex South District Registry of Deeds (registry) in Book 34497, page 194, is the owner of the land known and numbered as 0 Bartholomew Street Rear, Peabody, and shown as Parcels 6 and 7 on a deed dated November 3, 2015 and recorded at the registry in Book 34497, Page 198 (A&W property). The A&W property is situated in the R1 Zoning District. A&W wishes to develop more than fifteen (15) housing units on the A&W property. Facts ¶¶ 1, 10.

9. Sherwood Hills, u/d/t dated November 7, 2000 and recorded at the registry in Book 16762, Page 408, is the owner of the land located on Sherwood Avenue in Peabody, being five (5) parcels of land shown as Lots 21, 22, 23, 24 and 25 on Land Court Certificate of Title No. 73286 and on Plan 30533-A (Sherwood Hills property). Facts ¶ 2. The Sherwood Hills property is situated in the R1 Zoning District. Sherwood Hills wishes to develop more than fifteen (15) housing units on the Sherwood Hills property. Facts ¶¶ 2, 11.

10. Osborne Hills, u/d/t dated July 7, 2000 and recorded at the registry in Book 16455, Page 100, is the owner of the land in Peabody shown on and described in a deed recorded at the registry in Book 16455, Page 108, referred to as 0 Sherwood Avenue and "Osborne Pasture" (Osborne Hills property). The Osborne Hills property is situated in the R1 Zoning District. Osborne Hills wishes to develop more than fifteen (15) housing units on the Osborne Hills property. Facts ¶¶ 3, 12.

11. Section 6.11.2(A) of the Inclusionary Zoning provision of the ordinance,

"Applicability," provides:

The provisions of this Ordinance shall apply in zoning districts R2, R3, R4, R5, BN, DDD, and BC to all residential developments that involve the creation of eight (8) or more housing units, whether rental or ownership, and shall apply to zoning districts R1, R1A, and R1B that involve the creation of fifteen (15) or more housing units.

Facts ¶ 6.

12. The requirements of the Inclusionary Zoning provision apply to developments in the R1, R1A, and R1B Districts that involve the creation of fifteen (15) or more housing units, such as those proposed by the Trusts. Facts ¶ 7.

Discussion

The Complaint has two counts, one brought under G.L. c. 240, § 14A, and the other brought under G.L. c. 231A. Under both counts, the Trusts seek a declaration that the current Inclusionary Zoning provision of the ordinance is unconstitutional because, as applied to their properties in the R1 zoning district, the provision requires the Trusts' proposed projects to provide for affordable housing without any of the economic offsets provided for projects in the other Zoning Districts in the Incentives section, § 6.11.5. It is undisputed that, as enacted, the Inclusionary Zoning provision of the ordinance requires affordable housing for the Trusts' proposed developments in the R1 district, but provides no incentives for the Trusts for that affordable housing. The City responds with several arguments, two of which are addressed here. First, the City argues the Trusts' claims are time-barred. Second, the City argues that the lack of incentives in the R1, R1A, and R1B districts is the result of a clerical error, and that the Inclusionary Zoning provision should be deemed to include the mistakenly omitted incentives. The City's arguments are addressed in turn.

Are the Trusts' constitutional challenges time barred?

The City argues that the Complaint should be dismissed because the Trusts failed to bring their legal challenge within ninety (90) days after the posting of the second publication of the Inclusionary Zoning provision in 2011, as required by G.L. c. 40A, § 5. Section 5 states that "no claim of invalidity of any zoning ordinance or by-law arising out of any possible defect in the procedure of adoption or amendment shall be made in any legal proceedings … unless legal action is commenced within the time period specified in sections thirty two and thirty two A of chapter forty." Id. General Laws c. 40, §§ 32 and 32A, provide that "claims based upon allegations of a procedural defect in the adoption of a zoning bylaw or amendment are time barred unless brought within ninety days from the date of a town's satisfactory notice of such adoption or amendment." Bruni v. Planning Bd. of Ipswich, 73 Mass. App. Ct. 663 , 669 (2009).

This ninety-day limitations period only applies to procedural challenges to a zoning provision's adoption; it does not apply to claims challenging the substantive content of the zoning provision. Thus, for example, where the thrust of a complaint challenged the substance of the City of Waltham's zoning ordinance on the grounds that such sections violated the uniformity requirements set forth in G.L. c. 40A, § 4, this court found that the plaintiff was not time-barred from making such claim. See Geraci v. City of Waltham, 21 LCR 607 (2013) (Sands, J.). This distinction is consistent with the principle that in claims under G.L. c. 240, § 14A, challenging the validity of zoning ordinances, "the existence of a zoning by-law which purports to apply to one's land but which in fact cannot be lawfully applied, constitutes a direct invasion of the rights of the owner, and it has been said that mere acquiescence on the part of the owner for whatever period of time does not legalize a usurpation of power which violates rights protected by constitutional provisions." Barney & Casey Co. v. Town of Milton, 324 Mass. 440 , 445 (1949) (further holding that mere delay in attacking the validity of the by-law, with nothing to show that any prejudice or disadvantage thereby resulted to the town, does not constitute laches).

Here, the Trusts are challenging the constitutionality of the Inclusionary Zoning provision as applied to their properties in the R1 Zoning District. They have not made any allegations regarding the procedural method by which the Incentives section, § 6.11.5, was amended. The Trusts' claim under G.L. c. 240, § 14A, is not time barred by the limitations period of G.L. c. 40A, § 5.

Is there an error in the Inclusionary Zoning provision?

When faced with claims challenging the constitutionality of a city's zoning ordinance, the court interprets the local zoning ordinance at issue and determine its validity according to "ordinary principles of statutory construction." Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 290 (1982). In doing so, the court's primary task is to determine the intent of the legislative body that enacted the ordinance in question. Board of Appeals of Hanover v. Housing Appeals Comm. in the Dep't of Community Affairs, 363 Mass. 339 , 354 (1973). The court "must construe the [ordinance] in a manner that will effectuate, not frustrate, the legislative intent." Capone v. Zoning Board of Appeals of Fitchburg, 389 Mass. 617 , 624 (1983). The court makes every presumption in favor of the ordinance's validity, Rogers v. Town of Norfolk, 432 Mass. 374 , 379 (2000) ("A challenged provision in a zoning bylaw is presumptively valid, and a challenger bears the burden to prove otherwise"), and interprets the zoning ordinance "so as to render it a ‘consistent and harmonious' whole, so far as reasonably practicable." Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 922 (1997), quoting Vining Disposal Serv., Inc. v. Selectmen of Westford, 416 Mass. 35 , 38 (1993).

Thus, "where the draftsmanship of a statute is faulty or lacks precision, it is the court's duty to give the statute a reasonable construction." Capone, 389 Mass. at 622, quoting School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 , 79-80 (1982). As relevant here, the SJC has held that where a statute contained an obvious clerical error, a court could depart from the statute's literal meaning in order to effectuate the legislative intent and avoid constitutional problems where possible. Maloney, 447 Mass. at 589. The SJC found that it could not infer that the Legislature had ratified this error from the mere fact that the Legislature had not yet corrected the illogical reading of the statute caused by an obvious clerical error. Id. at 584.

Section 6.11.5, as enacted on April 28, 2011, does not contain incentives for the R1, R1A and R1B Zoning Districts, and has not been further amended. Based on the undisputed evidence provided in the Spanos Affidavit, § 6.11.5's lack of incentives in the R1, R1A, and R1B Zoning Districts is the result of a clerical error. The transcripts of the City Council's meeting as a Committee of the Whole in 2010 show that not only did the City Council intend to retain the incentives for the R1, R1A and R1B Zoning Districts from the previous ordinance § 4.6.11 in the new Incentives § 6.11.5, but the City Councilors also unanimously voted to keep the Ordinance's language from the old § 4.6.11 which provided the incentives for these Zoning Districts. It was due to a clerical error that the R1, R1A, and R1B Zoning Districts were made part of the § 6.11.2 Applicability Section of the Inclusionary Zoning provision but were not referenced at all in the § 6.11.5 Incentives Section. Applying Commonwealth v. Maloney, this Court departs from § 6.11.5's literal meaning in order to correct the clerical error and effectuate the legislative intent of the City Council, which specifically voted to keep in § 6.11.2 the incentives included in the R1, R1A and R1B Zoning Districts. Accordingly, the court hereby construes the § 6.11.5 Incentives provision to contain the incentives in the R1, R1A and R1B Zoning Districts.

"Summary judgment, when appropriate, may be rendered against the moving party." Mass. R. Civ. P. 56(c). This is such an appropriate occasion. Summary judgment will enter for the City and against the Trusts, declaring that, per the language of the old § 4.6.11, the Incentives provision of § 6.11.5 of the ordinance provides that (1) applicable application fees or building permit fees imposed by the City in connection with all Affordable Units shall be waived for the R1, R1A and R1B Zoning Districts, (2) a minimum of 2.0 parking spaces per housing unit, inclusive of visitor parking, shall be provided, and (3) the affordable units shall be exempted in calculations pertaining to lot coverage, floor area ratio, and minimum lot area and size and any other area calculations. Because the R1, R1A and R1B Zoning Districts retain the incentives provided in the old § 4.6.11, the Trusts' proposed projects now have the benefit of incentives in exchange for the Inclusionary Zoning requirements. As the alleged lack of such incentive was the basis for the Trusts' constitutional claims, the Motion for Summary Judgment must be denied and the Complaint dismissed.

Conclusion

For the foregoing reasons, the Plaintiff's Summary Judgment Motion is DENIED. Judgment shall enter (a) declaring that the City of Peabody's Inclusionary Zoning Ordinance shall be interpreted to include in the § 6.11.5 Incentives Provision the incentives of the former § 4.6.11 as applied to the R1, R-1A and R-1B Zoning Districts, and (b) dismissing the Complaint with prejudice as the judicial ordinance interpretation renders the Plaintiffs' constitutional challenges moot.

SO ORDERED