E&C SPORTS, LLC v. TOWN OF HOLLISTON, and WARREN B. CHAMBERLAIN, JOHN J. DONOVAN, PARASHAR B. PATEL, GEOFFREY H. ZEAMER, and LEONARD W. ENGEL, as they are members of the HOLLISTON PLANNING BOARD

This is an appeal pursuant to G. L. c. 40A, § 17, through which Plaintiff, E&C SPORTS, LLC (E&C), challenges a decision of the Planning Board of the Town of Holliston, which denied their “Application for Grant of Site Plan Review And Special Permit”(Application). E&C filed their Application seeking approval to erect an air supported structure (Bubble) in order to provide tennis court access year round for the members of Plaintiff’s existing business, Chamberlain Pine Swim & Tennis Club, located at 84 Chamberlain Street, Holliston (Locus).

E&C initiated this action by filing a four-count Complaint on February 28, 2011. On May 25, 2011, Defendants filed a Motion for Partial Summary Judgment as to Counts I and II of Plaintiff’s Complaint. On June 24, 2011, Plaintiff filed a Cross-Motion for Summary Judgment, together with a written opposition to Defendants’ Summary Judgment Motion. For the reasons set forth below, this court holds that Defendants’ Motion for Partial Summary Judgment is GRANTED and Plaintiff’s Cross-Motion is DENIED.

In Count I of its Complaint, E&C asserts that the use of Locus as the Chamberlain Pine Swim & Tennis Club is a pre-existing nonconforming use operating under successive variances granted by the Holliston Zoning Board of Appeals, and that the use will not be extended or altered to a substantially greater extent in conjunction with the erection of the proposed Bubble. E&C therefore argues that they were not required, under the local Zoning By-Law, “to seek a Special Permit and should have only been required to submit to a Site Plan Review.” See Complaint, pp. 5-6. It is E&C’s further contention that the site plan portion of their Application was in fact approved by the 3-2 vote taken by the Planning Board in favor.

Alternatively, in Count II of their Complaint, E&C states that the Certificate of Action filed with the Town Clerk by the Planning Board did not accurately reflect the vote that was taken at the public meeting on Plaintiff’s Application. E&C maintains that the vote taken was limited to a vote on the site plan review because the motion voted upon made no mention of the special permit and was merely a motion “to approve the site plan dated September 16, 2010 revised December 28, 2010.” See Complaint, p. 6. Moreover, E&C contends that its special permit request has been constructively approved because more than ninety days have passed since the meeting was closed and no action has been taken by the Planning Board.

It is Defendants’ position that the Planning Board’s vote was a vote on both the site plan review and the special permit and that the special permit was not granted because it required a super majority, which was not achieved. In addition to the parties’ briefs and submissions filed in compliance with Land Court Rule 4, the summary judgment record includes twenty-one exhibits, the Town of Holliston Zoning By-Law, and five affidavits of the named Defendant members of the Planning Board. A hearing on the parties’ cross-motions was held on July 12, 2011, at which all the parties were heard.

The record establishes the following material facts which are not in dispute: [Note 1]

1. Plaintiff, E&C Sports, is a Massachusetts Limited Liability Corporation with a principal address at Locus.

2. Plaintiff’s business, Chamberlain Pine Swim & Tennis Club (Tennis Club), is located at 84 Chamberlain Street, Holliston and operates as a seasonal swim and tennis club pursuant to decisions of the Town of Holliston Zoning Board of Appeals, which granted variances dated August 8, 1972, April 11, 1974, June 4, 1974, June 2, 1977, and May 5, 1983. None of the decisions contain a limitation as to the seasonal operation of the business.

3. The variances were granted prior to the adoption of Section III-A, Use 38a of the Zoning By-Law, which allows the use “country, tennis, golf or similar clubs” by special permit.

4. The Planning Board is a duly constituted municipal board, with offices at Holliston Town Hall. The named Defendants Warren B. Chamberlain, John J. Donovan, Parashar B. Patel, Geoffrey H. Zeamer, and Leonard W. Engel, were members of the Planning Board at all times relevant to this appeal and they are named as Defendants solely in their capacity as members of the Planning Board.

5. The Planning Board is empowered to hear applications for special permits submitted under the provisions of G. L. c. 40A, § 9, and the Holliston Zoning By-Law.

6. Section VI-E of the Zoning By-Law sets forth the standards for allowing a special permit and the authority of the Planning Board as the designated special permit granting authority. Section VII sets forth the purpose for site plan review, the applicability of site plan review, the Planning Board as special permit granting authority, procedure for approval, general conditions for approval and the authority of the Planning Board.

7. The Town of Holliston Planning Board Site Plan Review Regulations, Article VII, § 7.2.6, titled Site Plan Review Procedure, provides:

The Planning Board shall make its findings, as required by the Zoning By-Law, and in accordance with its own Rules and Regulations, and shall approve, deny or approve with conditions, by vote of a majority of members present, and so notify the Applicant. Any denial of a Site Plan application, apart from those filed in conjunction with an application for a Special Permit, shall include specific conditions that, once met, will allow approval of the Site Plan. (emphasis added.)

8. The Zoning By-Law at Section I-C, § 1.a. i, provides that the By-Law does not apply to non-conforming uses but does apply to “any changes or substantial extension of a non-conforming use… .”

9. On or about October 12, 2010, E&C submitted an “Application for Grant of Site Plan Review And Special Permit” to the Planning Board, seeking approval of an “air supported structure so as to provide tennis courts year round to the members of the Tennis Club.”

10. Prior to filing the Application, E&C manager Edwin L. Emerson (Mr. Emerson) met with the Building Inspector, Peter Tartakoff, and the Town Planner, Karen Sherman. Both recommended that E&C file an application for Site Plan Review And Special Permit.

11. The Planning Board, after duly advertising and providing notice in accordance with G. L. c. 40A, §§ 9 and 11, opened a public hearing on Plaintiff’s Application on November 4, 2010.

12. The Hearing was continued to January 6, 2011, and on that day the public hearing was resumed and closed.

13. On January 27, 2011, after posting a meeting in accordance with the Open Meeting Law, the Planning Board deliberated the merits of Plaintiff’s Application.

14. During the public hearing, Plaintiff had argued to the Planning Board that its use of Locus was not changing and a Special Permit was not needed.

15. At the January 27, 2011 meeting, Leonard W. Engel (Mr. Engel), moved “to approve the site plan dated September 16, 2010 revised December 28, 2010.” [Note 2]

16. The motion was properly seconded, and the vote on the motion was 3-2 in favor, with Warren B. Chamberlain, John J. Donovan, and Leonard W. Engel voting “Yes” and Parashar B. Patel and Geoffrey H. Zeamer, voting “No.”

17. By e-mail and letter dated January 28, 2011, Plaintiff’s attorney wrote to the Town Planner, Karen Sherman, who is responsible for preparing minutes from Planning Board meetings. The letter stated:

… Now that the hearing has closed with the Planning Board’s vote last night, I am concerned that the record and written decision accurately reflect the motion that was voted on. At the end of the hearing, Mr. Engel made a motion to approve the site plan dated September 16, 2010 revised December 28, 2010. The motion was seconded by Mr. Patel and voted upon. The vote was three in favor (Engel, Chamberlain and Donovan) and two against (Patel and Zeamer)… .

18. Ms. Sherman responded to this inquiry by e-mail dated January 28, 2011, stating: “[t]hat is the vote I recorded as well. I will draft a decision document for the Board to ratify on the 17th at their next meeting.” See Cross-Motion, Ex. H.

19. On January 31, 2011, Ms. Sherman e-mailed the Planning Board members, stating:

I got a very oddly framed letter from Atty. Cavanaugh who represents the Emersons. He states “Now that the hearing has closed with the Planning Board’s vote last night, I am concerned that the record and written decision accurately reflect the motion that was voted on.” I have drafted a decision document that I would ordinarily feel comfortable filing with the Town Clerk without question. However, his comments have made me a bit nervous about “the record” and them trying to file an appeal based on the vagueness of Len’s motion (The motion was to approve the site plan dated xxx, not the application for Special Permit and Site Plan Review…). I’m wondering if you all might be willing to meet before the 14-day deadline to file with the Town Clerk in order to clarify the vote and decision document, that is, to ratify that decision document… . See Cross-Motion, Ex. J.

20. The decision of the Planning Board with regard to Plaintiff’s “Application for Grant of Site Plan Review And Special Permit” was filed with the Town Clerk on February 9, 2011 (Decision).

21. Since January 27, 2011, neither E&C nor Mr. Emerson has received notice that the Planning Board has held or scheduled a public session to vote on Plaintiff’s Application.

* * * * *

“Rule 56(c) of the Massachusetts Rules of Civil Procedure. . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal citations omitted). Counts I and II are ripe for summary judgment because the material facts are not in dispute and the matter may be decided based on the applicable law.

COMPLAINT, COUNT II

E&C maintains that the vote taken at the public meeting was exclusively on the site plan review because the motion voted upon made no mention of the special permit part of the application and was merely a motion “to approve the site plan dated September 16, 2010 revised December 28, 2010.” In turn, E&C contends that its special permit application has been constructively approved because more than ninety days have passed since the meeting was closed and no action has been taken by the Planning Board. As an initial matter, this court finds that the vote taken at the January 27, 2011 public meeting was a vote on the entire Application- both the special permit and the site plan review.

The record establishes that, consistent with the advice given E&C by the Town Planner and Building Inspector, E&C presented one application to the Planning Board titled: “Application for Grant of Site Plan Review And Special Permit.” There was one plan filed in conjunction with the Application on which the proposed Bubble and all other physical changes to Locus, including the addition of parking spaces, were shown. When the Planning Board deliberated the merits of E&C’s Application at the public meeting with Plaintiff and counsel present, the necessity of a special permit was discussed, as well as, among other things, the potential noise and traffic associated with year round use of the Bubble, and the hours of operation resulting from its construction. Thus, the substance of the deliberations prior to the Planning Board’s vote took into account factors relevant to the issuance of a special permit. Moreover, the decision filed by the Planning Board is clearly captioned “Certificate of Action, Special Permit and Site Plan Review, 84 Chamberlain Street.” The section of the decision captioned, “Findings and Vote,” clearly refers to the super-majority standard for special permit approval set forth in G. L. c. 40A, § 9, and notes that the special permit “failed to pass” on Planning Board’s 3-2 vote in favor.

Plaintiff correctly points out that at the public hearing the motion for the vote was phrased as a motion “to approve the site plan dated September 16, 2010 revised December 28, 2010.” In contrast, the Certificate of Action filed by the Planning Board states that a motion was made to “approve the application for Special Permit and Site Plan Review (plans dated September 23 [sic] with revisions through December 28, 2010).” The circumstances clearly illustrate that the substance of the decision filed by the Planning Board mirrors the substance of the deliberations at the meeting on the merits of Plaintiff’s Application. See Cameron v. Divirgillo, 55 Mass. App. Ct. 24 , 27 (2002) (“The decision and statement of reasons filed cannot vary in substance from the decision taken at the meeting”). [Note 3] Moreover, a reasonable person reading the substance of the decision would understand it to be a vote on both site plan review and on the special permit. See J&R Investments, Inc. v. New Bedford, 28 Mass. App. Ct. 1 , 3 (1989) (The questions is “whether reasonable persons examining the formal records could ascertain that a particular action had been taken”) (internal citations omitted).

The summary judgment record includes Mr. Engel’s affidavit which states that it was his intention in making the motion to have the Planning Board approve both the site plan and the special permit. The other four members of the Planning Board also submitted affidavits stating that it was their understanding that Mr. Engel’s motion was “a motion to approve both the site plan and the special permit.” Further, each affiant swore that his or her vote “took into consideration both the application for site plan review and the special permit.” Thus, there was no constructive approval of the special permit.

COMPLAINT, COUNT I

Notwithstanding the fact that E&C simply applied for a special permit under Section III, III-A of the By-Law, the substance of Count I alleges that all E&C needed in order to validate the construction of the Bubble and the other proposed changes was a “finding” under Section 6 of the Zoning Act. [Note 4] In E&C’s view, the Tennis Club was operating as a pre-existing nonconforming use permitted by variance, and the proposed changes, including the Bubble would not be substantially more detrimental to the neighbourhood than the existing Tennis Club

Here, the facts establish that E&C operates its Tennis Club under successive use variances. Thus, Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 (1990), which presented similar facts, is instructive to the resolution of Count I. In Mendes, the Petitioner’s existing commerical use was based on a variance and he sought to legitimize expansion of his commercial building by obtaining a ‘special permit finding’ based on a local version of G. L. c. 40A, § 6. The Appeals Court upheld the trial court’s annulment of the special permit, reasoning that a use based on a variance was not ‘non-conforming’ within the meaning of Section 6. Judge Kass summarized by stating: “It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use.” Mendes, 28 Mass. App. Ct. 527 , 531 (1990), rev. denied, 407 Mass. 1103 (1990); see also Star Enterprise v. Zoning Bd. of Appeals of Medfield, Land Court Misc. Case No. 141347 (1991) (Kilborn, C.J.), aff’d 35 Mass. App. Ct. 1109 (1993) (Relying on Mendes, holding that a Section 6 finding was not possible in the action because “a use based on a variance was not ‘non-conforming’ within the meaning of Section 6”).

The Tennis Club use in this case was not a pre-existing nonconforming use, as it was operating pursuant to variances. See Mendes, 8 Mass. App. Ct. at 531. Accordingly, this court concludes that E&C was not entitled to change the Tennis Club use of Locus through relief in the nature of a “finding under Section 6.” E&C was granted its variances prior to the adoption of Holliston Zoning By-Law § III-A, Use 38a, which allows the use as a tennis or similar club by special permit in all districts in Holliston. Prior to the adoption of Use 38a, the Tennis Club use was not allowed except by variance. On that point, the circumstances presented here are different from those presented in Mendes, where the Town of Medfield adopted a ban on use-variances subsequent to the granting of the variance to Mendes. [Note 5] Here, E&C had available to it the opportunity to go before the Holliston Zoning Board of Appeals and request a variance modification, or to submit an Application for Grant of Site Plan Review And Special Permit to the Planning Board. After the recommendation of both the Town Planner and Building Inspector, E&C choose the latter, and, as explained above, E&C’s special Application was denied. [Note 6]

For the reasons set forth above, this court holds Defendants’ Motion for Partial Summary Judgment is GRANTED, and Plaintiff’s Cross-Motion for Summary Judgment is DENIED. A status conference is scheduled for May 1, 2013, at 10:30 am.

So ordered.

By the court (Scheier, C.J.)