MISC 12-464638

April 11, 2013


Long, J.



Defendant Seaver Properties LLC is the owner of 300 Cambridge Road in Woburn, a former, but now abandoned, gas station. It is in close proximity to other businesses, including a gas station opposite the property, two car dealerships, a retail plaza, a drive-through Dunkin Donuts, a liquor store, a Whole Foods grocery store and other retail establishments. Defendant Larry Bloomquist, d/b/a Fellsway Foreign Motors (“Fellsway”), is the prospective purchaser of the property and intends to relocate his automobile repair business there. Under prior zoning such use would not be allowed. However, the zoning ordinance was amended and now allows a repair garage to be established in that location by special permit. [Note 1]

Fellsway’s proposed use qualifies for such a permit and its application to the City Council, joined in by Seaver, was granted with numerous conditions. As found by the City Council, the grant would “result in a substantial public benefit to the City of Woburn in that a dilapidated property that has been vacant for approximately twenty-five (25) years will be cleaned up and upgraded and that the proposed use of the property as a limited and restricted automobile repair facility will not substantially derogate from the public good and does not impose any substantial detriment on the surrounding neighborhood.” Plaintiff Rafail Kushnirsky is an abutter to the property and filed a timely G.L. c. 40A, §17 appeal from the grant of the special permit. He also attempted to challenge the zoning amendment as “spot zoning” but failed to name the City as a defendant.

Fellsway and Seaver have now moved for a summary judgment dismissing Mr. Kushnirsky’s appeal, with full evidentiary and legal support for their arguments. Mr. Kushnirsky did not respond to the motion, timely or otherwise. For that and the reasons set forth below, the motion is ALLOWED and Mr. Kushnirksy’s appeal is DISMISSED in its entirety, WITH PREJUDICE. Fellsway and Seaver’s G.L. c. 231, §6F motion for attorneys’ fees is DENIED.


Summary judgment may be entered when there are no genuine disputes of material fact on the claims put in issue by the motion, and the moving party is entitled to judgment on these undisputed facts as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr. v. Crannery, 436 Mass. 638 , 643-644 (2002). When considering a motion for summary judgment, the court “does not pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Atty Gen. v. Bailey, 386 Mass. 367 , 370 (1982) (citations omitted). All material facts must be viewed, and all reasonable inferences from those facts must be drawn, in the light most favorable to the party opposing the motion. Id. at 371.

The discussion of the merits of the summary judgment motion need not be lengthy. The undisputed facts [Note 2] show that the zoning amendment was rationally based, substantially related to the public health, safety, morals or general welfare, properly and validly adopted, properly and validly applied to this site, and was therefore not “spot zoning.” See Memorandum of Law in Support of Defendant’s Motion to dismiss for Failure to State a Claim or for Summary Judgment (“Defendants’ Summary Judgment Mem.”) at 1-13, 15-21 (Jan. 9, 2013). The undisputed facts also show that the special permit was well within the discretion of the City Council to grant, and the plaintiff has failed to show he has standing to challenge it. See Defendants’ Summary Judgment Mem. at 1-5, 13-15, 21-27.

The “Spot Zoning” Challenge

Spot zoning occurs where a municipality rezones a small area of land no different from surrounding parcels, resulting in economic gain solely to the owner of that land. See Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128 , 133, 134 (1941). A finding of spot zoning renders a zoning amendment invalid. See Bd. of Appeals of Hanover v. Hous. Appeals Comm. in Dept. of Cmty. Affairs, 363 Mass. 339 , 360 (1973); Lamarre v. Comm’r of Pub. Works of Fall River, 324 Mass. 542 , 544 (1949). A strong presumption exists in favor of municipalities’ zoning decisions, and those decisions should only be invalidated if their reasonableness is not fairly debatable. See Caires v. Bldg. Comm’r of Hingham, 323 Mass. 589 , 594-95 (1949).

The spot-zoning determination rests on “whether [a zoning amendment] violates State law or constitutional provisions, is arbitrary or unreasonable, or is substantially unrelated to the public health, safety, or general welfare.” Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 57 (2003). The primary consideration with respect to these factors is whether the rezoning serves a public purpose. Raymond v. Bldg. Inspector of Brimfield, 3 Mass. App. Ct. 38 , 41 (1975); see Fabiano v. City of Boston, 49 Mass. App. Ct. 281 , 286 (holding that an economic benefit to a single owner is not material to spot zoning analysis if purposes of amendment “are consonant with the objectives of the enabling act.”).

Mr. Kushnirsky has failed to show that the zoning amendment does not advance a public purpose so as to overcome the presumption in favor of its validity. The City Council observed proper procedures in carefully considering the amendment’s merits and allowing members of the community openly to voice their objections. The City Council ultimately approved the amendment because it serves numerous public purposes. The amendment revitalizes what is currently a vacant eyesore along a main road, adds business to an already active retail area, and increases tax revenue from the property because the property will increase in taxable value if in use instead of abandoned. As the City recognized, because the property effectively is surrounded by commercial uses, it is unlikely it would ever be developed unless re-zoned.

That a zoning amendment serves a public purpose is not dispositive of whether that amendment constitutes spot zoning, however. See Beal v. Bldg. Comm’r of Springfield, 353 Mass. 640 , 643-44 (1968). A zoning amendment that serves a public purpose may still amount to spot zoning if it is arbitrary or unreasonable. See Raymond v. Lowell, 333 Mass. at 411-12; Nat’l Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 312 (1990).

In this case, however, the undisputed facts show that the amendment is reasonable. First, the property had valid nonconforming use status as a gas station and repair garage until that use was abandoned in 1987. In its twenty-five years of abandonment, the property lost this nonconforming use status by operation of the Woburn Zoning Ordinance and G.L. c. 40A, §6. [Note 3] The only way the City could lawfully restore the blighted property to effective usefulness was to pass the amendment allowing for a special permit to operate a repair garage, subject to several conditions. In fact, that a particular use was once lawful on the property demonstrates that a parcel is sufficiently distinguishable from surrounding properties to defeat a spot zoning challenge. See Caires v. Bldg. Comm’r of Hingham, 323 Mass. 589 , 596-97 (1949) (upholding amendment rezoning residential parcel for business use where parcel had previously been a nonconforming use for operation of a railroad within residential zone); Woodland Estates, Inc. v. Bldg. Inspector of Methuen, 4 Mass. App. Ct. 757 , 761-62 (1976) (finding no spot zoning where parcel on which hospital had previously been established as a nonconforming use within a residential zone was selected for inclusion in new hospital zone).

Moreover, a repair garage is consistent with the uses on several surrounding parcels. The property is adjacent to a large retail zone. In fact, it is located across the street from a gas station. The City Council also observed proper procedure in approving the amendment and attached seven conditions to it before allowing a special permit to issue. Finally, although Mr. Kushnirsky alleges that the amendment conflicts with other provisions of the zoning ordinance, he has failed to show even one example where this assertion holds true. From each of these facts, it follows that the amendment is reasonable. Accordingly, the amendment does not constitute spot zoning and is valid.

The Challenge to the Special Permit

Mr. Kushnirsky is an abutter to a parcel that abuts on the property at issue. Thus, he falls within a category of persons entitled to receive notice of zoning board hearings under G.L. c. 40A, §11, [Note 4] affording him rebuttable, presumptive standing as a “person aggrieved” under G.L. c. 40A, §17. See Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 212 (2003). Upon a supported challenge to standing, however, “the plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). “Credible evidence” includes both quantitative and qualitative components. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). Quantitatively, the plaintiff must produce specific facts in support of the injury he claims, and show that those injuries are to interests protected by the zoning ordinance. Id. Qualitatively, the plaintiff’s evidence for his claims must be of a kind on which a reasonable person could rely. Id. As a matter of law, “conjecture, personal opinion, and hypothesis” are not of such kind. Id.

Mr. Kushnirsky’s support for each of his claimed harms fails the qualitative component of his burden and, by extension, the quantitative component as well. He did not oppose the summary judgment motion with any facts, nor even a memorandum of law. All he has placed in the record are his pleadings. In those pleadings, Mr. Kushnirsky first offers conclusory and unsubstantiated statements about the process by which the City Council approved the amendment and the amendment’s alleged conflict with existing zoning provisions. His “process” allegations are unsupported, the zoning amendment obviously supersedes any previously existing conflicting provisions, and none of these contentions even remotely alleges any harm particular to Mr. Kushnirsky. Next, Mr. Kushnirsky cites his personal concerns about increased traffic in the area as a harm that he will suffer from an operational repair garage on the property. Yet he offers no traffic study to support this contention, nor is he a traffic engineer. He also admits that the area already has a high level of automobile traffic and gives no support for the claim that a special permit allowing the establishment of a repair garage on the property will exacerbate traffic to a level that is harmful to him. Finally, Mr. Kushnirsky claims that the noise and odors that a repair garage on the property will emit will cause him harm. But, again, he has failed to support those claims with any expert evidence (indeed, any admissible evidence at all), and has failed to show how these alleged noises and odors would be more harmful to him than the noises and odors that he already experiences from the gas station across the street from the property at issue and the other nearby commercial businesses. Furthermore, as an abutter to an abutter, Mr. Kushnirsky benefits from a buffer zone between his parcel and the property. Thus, each of Mr. Kushnirsky’s claimed harms is based on speculation and his own opinions, not on any factual support. He thus lacks standing to challenge the permit. Even if he had standing, he has failed to show that the City acted outside its allowable discretion in granting the special permit. Its decision is completely in accordance with the requirements of the amended zoning ordinance and is well-founded in the facts. See discussion above at 5-6, and Defendants’ Summary Judgment Mem. at 1-5, 13-15, 21-27.

Defendants’ G.L. c. 231, §6F Motion

The defendants have prevailed on the merits of this case but, to obtain an award of attorneys’ fees pursuant to G.L. c. 231, §6F, must do more than simply prevail. They must show, among other things, that “all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature” made by Mr. Kushnirsky “were wholly insubstantial, frivolous and not advanced in good faith.” G.L. c. 231, §6F. The statute is an exception to “the usual rule that taxable costs are deemed full compensation for the expenses of litigation” and thus to be used “sparingly.” Massachusetts Adventura Travel Inc. v. Mason, 27 Mass. App. Ct. 293 , 299, n. 8 (1989).

Having reviewed the entirety of the record, I cannot say that Mr. Kushnirsky’s claims were “wholly insubstantial, frivolous and not advanced in good faith” when this case was filed. Mr. Kushnirsky is an abutter to an abutter, obviously concerned about the location of another business in the neighborhood, and brought this case with the advice and assistance of experienced counsel. To his credit, once the defendants came forward with their summary judgment motion, Mr. Kushnirsky did not attempt to fight it. Having reviewed that motion and its supporting evidence, he obviously (and correctly) concluded that he could not prevail and let the motion go forward unopposed. My ruling might have been otherwise had Mr. Kushnirsky put up obviously flawed counterarguments. But he did not, and I will not penalize him for taking the right course once he saw he would lose. Accordingly, the defendants’ G.L. c. 231, §6F motion is DENIED.


For the reasons set forth above, the defendants’ motion for summary judgment is ALLOWED. The City Council acted within its discretion and authority in approving this reasonable zoning amendment, and the granting of the special permit was fully in accordance with that amendment, well supported in the facts, and within the City’s allowable discretion to grant. Moreover, Mr. Kusnirsky failed to show that he had standing to challenge the permit. For the reasons set forth above, the defendants’ G.L. c. 231, §6F motion is DENIED. Judgment shall enter accordingly.


By the court (Long, J.)


[Note 1] Some restrictions apply. Repairs are limited to automobiles, and nothing weighing in excess of 10,000 pounds. The garage may not exceed 2,000 square feet. It must front on a state highway. And no portion of the structure may be closer than 40 feet to the nearest residential dwelling. The special permit granting authority (here, the City Council) may also require buffers and screening, modification of the building’s exterior, limits on the methods and hours of operation, and can control driveway location, parking, loading, and the like.

[Note 2] No response was made to the moving parties’ “Concise Statement of Undisputed, Material Facts.” The facts set forth therein are thus deemed admitted in full. See Mass. R. Civ. P. 56; Land Court Rule 4. See also Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397 , 401 (2002). The moving parties’ affidavits and the documents and deposition excerpts submitted in their Appendix were similarly uncontested. See Mass. R. Civ. P. 56(e) (“When a motion for summary judgment is made and supported as provided in this rule [Mass. R. Civ. P. 56], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is an issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”). I thus refer hereafter to the facts set forth in the Concise Statement, the affidavits, and the documents and deposition excerpts in the Appendix as the “undisputed facts.”

[Note 3] Under the Woburn Zoning Ordinance, a nonconforming use loses protection after abandonment of more than one year. Woburn Zoning Ordinance, §7.4. By statute, no nonconforming use can maintain its protection for more than two years. G.L. c. 40A, §6.

[Note 4] G.L. c. 40A, §11 includes as “parties in interest” entitled to receive notice of a zoning board hearing the petitioner, abutters, owners of land opposite the property at issue on a public or private way, and abutters of abutters whose property is located within 300 feet of the property at issue.