WALKER REALTY, LLC v. TOWN OF ACTON, MASSACHUSETTS; and CARA VOUTSELAS, KENNETH KOZIK, and MARILYN PETERSON, members of the BOARD OF APPEALS OF THE TOWN OF ACTON, MASSACHUSETTS.

Plaintiff Walker Realty, LLC (“Walker”), filed its unverified Complaint in case number 09 MISC 405389 (the “2009 Complaint”) on July 9, 2009, (1) pursuant to G. L. c. 40A, § 17, appealing a decision of Defendant Board of Appeals of the Town of Acton (the “ZBA”) which denied Walker’s development and use of its property located at 348-352 Main Street, Acton, MA (the “Original Parcel”) as a child care facility to be operated by Next Generation Children’s Center (the “Project”), and (2) pursuant to G. L. c. 240, § 14A, seeking a declaratory judgment concerning the applicability and enforcement of certain provisions of the Acton Zoning By-law (the “Bylaw”) to the Project. [Note 1] Defendants Town of Acton (the “Town”) and the ZBA (together, “Defendants”) filed an Answer on September 1, 2009. A case management conference was held on September 22, 2009. A pre-trial conference was held on November 14, 2011. On January 23, 2012, the parties filed a Joint Motion to Reschedule Trial.

Walker filed its unverified Complaint in case number 12 MISC 459564 (the “2012 Complaint”) on February 17, 2012, (1) pursuant to G.L. c. 240, § 14A seeking a seeking a declaratory judgment concerning the applicability and enforcement of certain provisions of the Bylaw to a revised version of the Project (the “Amended Project”), which proposed a child care facility on the Original Parcel and on an adjoining parcel (the “Kennedy Parcel,” together with the Original Parcel, the “Combined Parcel”), and (2) pursuant to G. L. c. 40A, § 17, appealing a decision of the ZBA denying Walker’s development and use of the Combined Parcel for the Amended Project. [Note 2] Defendants filed an Answer on March 14, 2012.

On October 1, 2012, Walker filed its Motion for Partial Summary Judgment on Complaint for Declaratory Judgment relative to the Amended Project (12 MISC 459564), together with Statement of Material Facts, Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment, Affidavits of Robert Walker and Katie L. Enright, and Appendix of Exhibits. [Note 3] On November 6, 2012, Defendants filed Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment and Cross-Motion for Partial Summary Judgment, together with Town’s Appendix. On November 21, 2012, Walker filed its Reply. A Summary Judgment hearing was held on February 4, 2013, at which time this matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 5(c).

I find that the following material facts are not in dispute:

1. Walker is a limited liability company with a principal office at 2 LAN Drive, Westford, MA. Walker is a developer of real estate and child care facilities for use by Next Generation Children’s Centers (“NGCC”). NGCC, located in Sudbury, MA, operates ten child care facilities in Massachusetts and each facility is licensed and regulated as a “day care center” by the Commonwealth of Massachusetts Department of Early Education and Care.

2. In 2008, Walker purchased the Original Parcel for its intended use as a new NGCC child care center. [Note 4] The Original Parcel consists of approximately 2.4 acres. Walker razed the two existing single family homes on the Original Parcel subsequent to its purchase. The Original Parcel is abutted on two sides by the Route 2 corridor and is located across the street from the westbound on/off ramp of Route 2.

3. The Original Parcel is located in the residential R-2 Zoning District (“R-2”). The Bylaw provides that a “Child Care Facility” is permitted as of right and is not subject to site plan approval within R-2. Defendants do not contest the Project’s classification as either a day care center or a child care center, which uses benefit from certain protections from zoning under G.L. c. 40A, § 3 (the Dover Amendment).

4. In addition to dimensional requirements applicable to all structures within R-2, the 2009 version of the Bylaw imposed certain other dimensional requirements on child care facilities within R-2: minimum open space (not including outdoor play area) of thirty-five percent (35%); a maximum floor area ratio (FAR) of .10; and a maximum net floor area (NFA) of 1,000 square feet.

5. On March 23, 2009 Walker submitted a site plan and a formal request for a zoning determination to the Town of Acton Zoning Enforcement Officer, Scott Mutch (“Mutch”). The site plan submitted for review was entitled, “Next Generation Children’s Center - Site Plan, dated March 14, 2009,” prepared by Hancock Associates (the “2009 Site Plan”). The 2009 Site Plan proposed a two story child care building, a storage shed, a play yard, parking for 77 vehicles, handicap parking spaces, pedestrian walkways, landscaped areas, snow storage areas, and an on-site septic system.

6. By letter dated March 26, 2009 (the “2009 Zoning Determination”), Mutch determined that the 2009 Site Plan was not in compliance with the Bylaw with respect to FAR and NFA. The 2009 Zoning Determination stated that the 2009 Site Plan provided FAR of .23 (greater than the maximum FAR of .10), and NFA of 23,085 square feet (greater than the maximum NFA of 1,000 square feet. [Note 5]

7. With respect to parking, the 2009 Zoning Determination also indicated that the 2009 Site Plan did not comply with section 6.7.1 of the Bylaw that required maximum forty parking spaces per parking cell and a distance of thirty feet between parking cells. The 2009 Site Plan also did not comply with section 6.7.7 of the Bylaw that required a minimum of 10% of the interior parking area consist of landscaped island area. With respect to access, the 2009 Zoning Determination indicated that the 2009 Site Plan did not comply with section 6.7.3 of the Bylaw, which required that “each lot may have one access driveway through its frontage which shall be 24 feet wide. [Note 6]” The 2009 Site Plan shows the driveway having a width of fifty (50) feet at its intersection with Main Street. Moreover, the 2009 Zoning Determination stated that the 2009 Site Plan, which depicted an interior driveway of twenty-four feet, did not comply with section 6.7.4 of the Bylaw, which stated “interior driveways shall be at least 20 feet wide for two-way traffic.”

8. On April 6, 2009, Walker filed with the Town Clerk an appeal to the ZBA of the 2009 Zoning Determination pursuant to G.L. c. 40A, § 8. Hearings were held before the ZBA on May 4, 2009, and June 1, 2009. On June 25, 2009, the ZBA issued a decision denying Walker’s appeal and upholding in part the 2009 Zoning Determination (the “2009 ZBA Decision”), a certified copy of which was filed with the Town Clerk on June 25, 2009. Walker appealed the 2009 ZBA Decision to the Land Court on July 9, 2009.

9. The 2009 ZBA Decision stated that, as it related to the 2009 Site Plan and the Original Parcel, “the Board found that the four parking and driveway regulations... Sections 6.7.1, 6.7.7, 6.7.3, and 6.7.4 [Note 7] - would be unreasonable as applied to the proposed facility.” The 2009 ZBA Decision further stated, “[t]he Board found that the NFA limit of 1,000 s.f. would be unreasonable as applied to the proposed facility. It would effectively prohibit any child care at the Property, and is unduly restrictive where the Property is almost 2 ½ acres.” However, the ZBA “found that the FAR limit of .10 is reasonable as applied to the proposed facility, which would have an FAR exceeding .20 (or .154, if hallways should be excluded from NFA as Walker Realty asserted)...” The ZBA refused to waive the FAR requirement and found that the FAR limit under the particular circumstances “significantly advances several of the Town’s planning and zoning interests.” [Note 8] [Note 9]

10. On May 21, 2009, Walker filed a preliminary subdivision plan (the “Preliminary Subdivision Application”) of a proposed two-lot subdivision on the Original Parcel entitled Isaac Davis Circle (the “Isaac Davis Circle Plan”). By decision dated June 16, 2009, and filed with the Town Clerk on June 28, 2009, the Acton Planning Board (the “Planning Board”) approved the preliminary Isaac Davis Circle Plan.

11. In 2009, the Town initiated a proposed amendment to section 5.3.9 of the Bylaw regulating NFA for child care facilities. A public hearing on the proposed zoning amendment was scheduled to be held on June 2, 2009. At a special Town Meeting held on June 23, 2009, the Town voted to amend section 5.3.9 of the Bylaw to increase the maximum NFA for a child care facility from 1,000 square feet to 2,500 square feet (the “Zoning Amendment”).

12. On December 18, 2009 Walker submitted a definitive subdivision plan for the Original Property for a subdivision renamed as Michele Circle (the “Michele Circle Plan”). By Decision dated July 20, 2010, and filed with the Town Clerk on July 28, 2010, the Planning Board approved the Michele Circle Plan (the “Subdivision Approval”). Section 4 of the Subdivision Approval stated, “Appeals, if any, shall be made pursuant to MGL, Ch. 41, S. 81-BB and shall be filed within 20 days after the date of the filing this Decision with the Town Clerk. Section 5 of the Subdivision Approval stated, “This document stating the decision of the Board shall serve as the Certificate of the Board’s Action to be filed with the Town Clerk pursuant to MGL, Ch. 41, S. 81-U.”

13. The Subdivision Approval required Walker to make nineteen revisions to the Michele Circle Plan prior to its endorsement. Section 3.4.4 of the Subdivision Approval stated, “[the Subdivision Approval] shall expire if not endorsed on the Plan within 180 days from date that this decision has been filed with the Town Clerk.” The date for endorsement was extended by the Planning Board to June 24, 2011. The Michele Circle Plan has never been endorsed by the Planning Board or recorded at the Registry.

14. By e-mail dated June 3, 2011, Elizabeth Ahern (“Ahern”), an employee of Walker Realty, informed Roland Bartl (“Bartl”), Planning Director for the Town of Acton, that Walker intended to rely on Section 173 of Chapter 240 of the Acts of 2010 and extended by Sections 74 and 75 of Chapter 238 of the Acts of 2012 (the “Permit Extension Act”), which states in relevant part:

Notwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of [4] years, in addition to the lawful term of the approval.

Ahern informed Bartl that in reliance on the Permit Extension Act, Walker did not need to submit the Michele Circle Plan to the Planning Board for endorsement prior to June 24, 2011. Bartl responded to this correspondence: “right.”

15. In 2011, Walker entered into a contract to buy a 1.87 acre parcel of land directly abutting the Original Parcel (i.e. the Kennedy Parcel). By deed dated September 5, 2012, and recorded with the Registry at Book 59949, Page 358, Walker took title to the Kennedy Parcel.

16. On December 5, 2011, Walker submitted a site plan (the “2011 Site Plan”) and a formal request for a zoning determination concerning the proposed structures on said plan. The 2011 Site Plan proposed construction of a NGCC child care center on the Combined Parcel consisting of approximately 4.6 acres. The 2011 Site Plan proposed a single story building consisting of approximately 19,460 NFA and a second building consisting of 600 NFA. The open space on the Combined Parcel was calculated to be approximately 30%. [Note 10]

17. By letter dated December 20, 2011 (the “2011 Zoning Determination”), Mutch determined that the 2011 Site Plan did not comply with the Bylaw. Specifically, the 2011 Zoning Determination stated that the 2011 Site Plan did not comply with the (newly enacted) 2,500 maximum NFA requirement of the Bylaw, the 35% open space requirement, the twenty-four foot access driveway requirement (section 6.7.3 of the Bylaw), and the 10% island parking landscape requirement (section 6.7.7 of the Bylaw).

18. On December 21, 2011, Walker timely appealed the 2011 Zoning Determination to the ZBA. A hearing was held on January 11, 2012 to discuss the matter. On January 31, 2012, the ZBA issued a decision denying Walker’s appeal and upholding in part the 2011 Zoning Determination (the “2012 ZBA Decision”), a certified copy of which was filed with the Town Clerk on or about January 31, 2012. Walker appealed the 2012 ZBA Decision to the Land Court on February 17, 2012.

19. The 2012 ZBA Decision stated that “applying the 24-foot maximum access driveway requirement...to this proposed facility would be unreasonable...The Board also found that it would be unreasonable to apply the minimum open space requirement of 35% once the perimeter buffer area and play areas are included.” The 2012 Zoning Determination also stated, “[t]he lot, as proposes, would have...a FAR of .10,” which complies with the Bylaw.

20. As it related to the NFA limit of 2,500 square feet, the ZBA found that it was reasonable to apply this requirement to the 2011 Site Plan. In this regard, the 2012 ZBA Decision

stated:

Although Walker Realty relied on the state requirement for space per child as an explanation as to why it exceeds the maximum NFA, Walker Realty also stated that it is providing more space per child and amenities than required by state law...Moreover, the Board also found that applying the NFA limit to this facility significantly advances several of the Town’s planning and zoning interests.

21. On February 13, 2012, Walker submitted a third site plan (the “2012 Site Plan”) and a third request for a zoning determination to Mutch. The 2012 site plan depicted the exact same two-story structure, parking, and drive-way layout as the 2009 Site Plan (all on the Original Parcel); however, the 2012 Site Plan contained the additional Kennedy Parcel to satisfy the FAR violation of the 2009 Site Plan. The proposed structures on the 2012 Site Plan were the main day care center building consisting of 18,460 square feet, a shed consisting of 576 square feet, and a building on the Kennedy Parcel consisting of 600 square feet. The 2012 Site Plan depicted a FAR of .096, less than the maximum FAR of .10. The 2012 Site Plan complied with all dimensional requirements in the Bylaw except for the NFA requirement.

22. By letter dated May 2, 2012 (the “2012 Zoning Determination”), Mutch determined that the 2012 Site Plan does not comply with the Bylaw. Mutch determined that the 2012 Site Plan violates the parking and access provisions in the Bylaw for the same reasons as he had initially indicated in the 2009 Zoning Determination (see, supra, Fact 6). Mutch also determined that the 2012 Site Plan did not comply with Section 5.3.9 of the Bylaw relative to NFA. Mutch noted that the NFA of approximately 19,741.89 square feet, as shown on the 2012 Site Plan, would not comply with either NFA requirement of 1,000 square feet (pre-Zoning Amendment) or 2,500 square feet (post-Zoning Amendment). Mutch made no observation relative to FAR. Walker never appealed the 2012 Zoning Determination to the ZBA.

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In its Motion for Partial Summary Judgment before the court, Walker seeks declaratory relief concerning the applicability of the Bylaw, specifically the Zoning Amendment, to the Amended Project. [Note 11] Walker argues that based on the Preliminary Subdivision Application, it is entitled to either an eight year zoning freeze or a zoning process freeze pursuant to G.L. c. 40A, § 6. As such, Walker maintains that the Zoning Amendment does not apply to the Amended Project. Defendants argue that Walker is not entitled to either an eight year zoning freeze or a zoning process freeze because the Michele Circle Plan has never been endorsed by the Planning Board. Defendants then argue that Walker cannot use a zoning freeze to choose “unreasonable” restrictive dimensional regulations rather than the less stringent regulations that were adopted pursuant to the Zoning Amendment. Next, Walker argues that because it is entitled to a freeze, the effective NFA requirement in the Bylaw is 1,000 square feet, which the ZBA had already determined was an unreasonable regulation. As such, Walker states the 2012 Site Plan complies with all applicable requirements of the Bylaw because it purchased the adjoining Kennedy Parcel to remedy the .10 FAR requirement. Defendants contend that Walker cannot apply the 2009 ZBA Decision to the 2012 Site Plan. I shall address each issue in turn.

I. Eight Year Zoning Freeze/Zoning Process Freeze:

The 2012 Complaint giving rise to this Decision brought two counts, (1) pursuant to G.L. c. 240, § 14A, relative to the reasonableness of certain zoning regulations as applied to the Amended Project (i.e. Dover Amendment issues), and (2) an appeal of the 2012 ZBA Decision pursuant to G.L. c. 40A, § 17. Both counts related to the 2011 Site Plan. The factual allegations in the Complaint do not mention either the Isaac Davis Circle Plan or the Michele Circle Plan. The 2012 Complaint does not include a count relative to a zoning freeze or a zoning process freeze for any land owned or controlled by Walker. As such, this court does not have jurisdiction pursuant to this Summary Judgment motion to make any ruling on the issue of a zoning freeze or a zoning process freeze. The parties, however, have briefed this issue in full. In the interest of judicial economy, this court will opine on the validity of any alleged zoning freeze or zoning process freeze as it relates to the disposition of this case.

A. Eight Year Zoning Freeze:

Walker contends that the Zoning Amendment does not apply to the Amended Project as a result of its filing of the Preliminary Subdivision Application followed by its timely filing of the definitive Michele Circle Plan, which was approved by the Planning Board. Defendants maintain that there can be no zoning freeze in place because the Michele Circle Plan was never endorsed, and as a result the Subdivision Approval has expired. G.L. c. 40A, § 6, states in relevant part:

If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or by-law [Note 12], the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval...

G.L. c. 40A, § 6

relieves a developer who has submitted a subdivision plan to a local planning board from compliance with future changes to zoning bylaws by (1) freezing the applicable bylaws governing the land shown on the subdivision plan as of the time when the plan is first submitted to the planning board and while the plan is being processed under the subdivision control law (the process freeze); and (2) freezing those same zoning bylaws for eight years from the date of the endorsement of final approval of a definitive plan.” Bernstein v. Planning Bd. of Stockbridge, 76 Mass. App. Ct. 759 , 765 (2010), quoting Kitras v. Zoning Administrator of Aquinnah, 453 Mass. 245 , 252 (2009).

The zoning freeze provision of G.L. c. 40A, § 6 “ties the duration of a process freeze and the triggering of an eight-year freeze to the subdivision approval process.” Bernstein, supra, at 765. If a land owner cannot obtain a certificate from the town clerk and if there is no endorsement of a subdivision plan, the eight-year zoning freeze is not triggered. Kitras, supra, at 255.

[I]t is the planning board’s endorsement...that, by triggering the eight-year zoning freeze, terminates the process freeze that had been in effect since the first submission of the subdivision plan. Absent the planning board’s endorsement...there is no way to identify, with precision, when the eight-year zoning freeze commences and terminates.” Kitras, supra, at 254.

Walker admits that neither the Isaac Davis Circle Plan nor the Michele Circle Plan were endorsed by the Planning Board and the Town Clerk did not issue a certificate of constructive approval for either plan. As stated in Kitras, if a subdivision plan is not endorsed, the eight year zoning freeze is not triggered. Based on these undisputed facts in the case at bar, it appears that Walker is not entitled to an eight-year zoning freeze relative to the Zoning Amendment as applied to the Michele Circle Plan.

B. Zoning Process Freeze:

Walker also alleges that it is entitled to a zoning process freeze. The final endorsement of a subdivision plan by a planning board terminates the zoning process freeze. See Kitras, supra, at 254. As stated, supra, no subdivision plan in the case at bar has been endorsed. Relevant to a process freeze, G.L. c. 40A, § 6 provides that land shown on a preliminary or definitive subdivision plan shall be governed by the zoning bylaws in effect, “while such plan or plans are being processed under the subdivision control law.” Walker argues that the zoning process freeze is still in effect because the time for obtaining an endorsement of the Michele Circle Plan has been extended by operation of the Permit Extension Act. As such, according to Walker, the Planning Board is still “processing” the Michele Circle Plan. Defendants argue that the zoning process freeze expired when the Subdivision Approval expired on June 24, 2011, because, as required by its terms, the Michele Circle Plan was never endorsed by that date.

Section (b)(1) of the Permit Extension Act states, “[n]otwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of [four] years, in addition to the lawful term of the approval.” (emphasis supplied). The Massachusetts Department of Housing and Urban Development has published a “FAQ Sheet” relative to the Permit Extension Act, which is posted on its website and which was submitted into the summary judgment record by both parties. Although not binding on this court, the FAQ Sheet is certainly a starting point for interpreting the Permit Extension Act. One series of questions and answers is as follows:

Q: DOES THE ACT APPLY TO A PERMIT THAT EXPIRED DURING THE QUALIFYING PERIOD?

A: Yes, the Act revives and extends any permit or approval that was valid during the qualifying period of August 15, 2008 through August 15, 2012. For instance, a permit that expired on July 1, 2009 is now revived and set to expire on July 1, 2013.

Q: WHAT IF I SUBMITTED AN APPLICATION FOR A PERMIT DURING THE QUALIFYING PERIOD, BUT IT WAS NOT ISSUED UNTIL AFTER THE PERIOD HAD PASSED.

A: The permit does not qualify for extension. The Act only extends permits that were issued or already in effect at any point (e.g., even for one day) during the qualifying period.

The parties dispute whether the Subdivision Approval is an “approval” within the purview of the Permit Extension Act. Defendants maintain that the Subdivision Approval cannot be an “approval” because it was not endorsed by the Planning Board. As such, the Subdivision Approval was never “in effect or existence,” thus the Permit Extension Act does not apply. Essentially, Defendants analogize the Subdivision Approval to a mere application for a permit.

Walker claims that the Subdivision Approval is an “approval” within the meaning of the Permit Extension Act, and therefore pursuant to said act, the Subdivision Approval would be extended through the tolling period. According to Walker, the expiration date would be June 24, 2015, four years from the date the Subdivision Approval was initially set to expire.

An “approval” is defined by the Permit Extension Act as:

[E]xcept as otherwise provided in subsection (b), any permit, certificate, order, excluding enforcement orders, license, certification, determination, exemption, variance, waiver, building permit, or other approval or determination of rights from any municipal, regional or state governmental entity, including any agency, department, commission, or other instrumentality of the municipal, regional or state governmental entity, concerning the use or development of real property, including certificates, licenses, certifications, determinations, exemptions, variances, waivers, building permits, or other approvals or determination of rights issued or made under chapter 21, chapter 21A excepting section 16, chapter 21D, sections 61 to 62H, inclusive, of chapter 30, chapters 30A, 40, 40A to 40C, inclusive, 40R, 41, 43D, section 21 of chapter 81, chapter 91, chapter 131, chapter 131A, chapter 143, sections 4 and 5 of chapter 249, or chapter 258, of the General Laws or chapter 665 of the acts of 1956, or any local by-law or ordinance.

This court agrees with Walker that the Subdivision Approval is an “approval” within the meaning of the Permit Extension Act. In support of their position, Defendants point out that a subdivision plan cannot be recorded or a building permit could not be issued until the plan is endorsed. Although endorsement is a pre-requisite to recording and obtaining a building permit, this function is ministerial in nature. “A planning board’s function in deciding whether to give the endorsement is ‘generally routine [in] nature.’” Long v. Board of Appeals, 32 Mass. App. Ct. 232 , 234 (1992), quoting Smalley v. Planning Bd. of Harwich, 10 Mass. at 603-604. In the case at bar, the Michele Circle Plan had been approved by the Planning Board, albeit with conditions. Section 4 of the Subdivision Approval, entitled “Appeals,” is further evidence that the Subdivision Approval was in effect and existence. Section 4 of the Subdivision Approval required that any appeal must be taken within twenty days from the date the Subdivision Approval was filed with the town clerk. It would seem that the Subdivision Approval became effective and in existence after the twenty day appeal period had run, subsequent to filing the Subdivision Approval with the Town Clerk. See Kitras, supra, at 254 (approval of subdivision plan “became final when the twenty-day appeal period expired”). [Note 13] If an appeal had been taken at the time of endorsement, it almost certainly would have been dismissed as untimely. It is also quite clear that the Subdivision Approval is not merely an application for a permit. In the instant case, the Planning Board held its hearing, determined that the Michele Circle Plan complied with the Rules and Regulations Governing the Subdivision of Land in the Town of Acton, voted to approve the Michele Circle Plan, and filed the Subdivision Approval with the town clerk, approving the Michele Circle Plan. It cannot be said that these procedures amount to only an application. Based on the foregoing, it appears that the Subdivision Approval is an “approval” as contemplated by the Permit Extension Act. Any expiration dates governing the Subdivision Approval are tolled and the Subdivision Approval could not have expired on June 24, 2011 by operation of the Permit Extension Act. Therefore, Walker is still within the accepted time period to comply with the various conditions of the Subdivision Approval and to finally obtain endorsement by the Planning Board. Accordingly, it appears that the Planning Board is still “processing” the Michele Circle Plan and Walker is currently still entitled to a zoning process freeze. [Note 14]

C. Freeze of More Liberal or More Restrictive Zoning Provisions

Defendants contend that even if a zoning freeze or a zoning process freeze is in place, Walker cannot utilize such a freeze to take advantage of “more restrictive” zoning provisions. Specifically, Walker argues that the 1,000 square foot NFA applies to the Amended Project, which is “more restrictive” than the 2,500 square foot NFA provided for in the Zoning Amendment. Walker contends that Defendants have no legal basis for this position. Walker also states that because the 2009 ZBA Decision concluded that the 1,000 square foot NFA is unreasonable and cannot be imposed on the Project, the 2,500 square foot NFA is actually more restrictive, as applied to Walker.

“[T]he intent of the [zoning freeze] statute was to protect landowners and developers from ‘the practice in some communities of adopting onerous amendments to the zoning by-law after submission of a preliminary plan which is opposed by segments within the community.’” Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 639 (2000). By enacting the zoning freeze statute, the legislature intended to protect developers. See id. Developers “can invoke a zoning freeze with inconsistent subdivision filings, or with plans filed with no intent other than to invoke the freeze.” Heritage Park Dev. Corp. v. Town of Southbridge, 424 Mass. 71 , 76 (1997), citing Long v. Bd. of Appeals of Falmouth, 32 Mass. App. Ct. 232 , 233 (1992) . “The statutory zoning freeze provides landowners with protection from amendments to zoning laws that would unpredictably and unfairly burden the development of their land.” Id.

As the Supreme Judicial Court (the “SJC”) has articulated in the above cited cases, the zoning freeze statutory scheme was enacted to protect developers. Courts have held that a landowner’s purpose for filing and seeking a zoning freeze is irrelevant for the purpose of determining whether a freeze has been triggered. See e.g., Long, supra, at 233. It is therefore irrelevant that the effect of the zoning freeze or zoning process freeze in the case at bar resulted in what Defendants describe as “more restrictive” zoning requirements. Once a zoning freeze or zoning process freeze attaches, the inquiry ends there without any regard for a land owner’s motivation. The zoning freeze tool provides a developer protections and discretion from any amendment to a local zoning ordinance or bylaw.

Based on the foregoing, it appears that the 1,000 square foot NFA requirement in the Bylaw applies to the Original Parcel (i.e. the land shown on the Isaac Davis Circle Plan and the Michele Circle Plan), provided that the Michele Circle Plan is endorsed by the Planning Board before June 24, 2015. At this juncture, this court offers no opinion regarding the reasonableness of the 1,000 square foot NFA requirement in the pre-Zoning Amendment version of the Bylaw.

II. Application of the Site Plans to the ZBA Decisions:

As a preliminary matter, this court feels compelled to once again raise a jurisdictional issue relative to the 2012 Complaint. As discussed, supra, the 2012 Complaint seeks (1) a Dover Amendment declaration regarding the reasonableness of Section 5.3.9 of the Bylaw as applied to the Amended Project, and (2) a finding, pursuant to G.L. c. 40A, § 17, that the Planning Board exceeded its authority in the 2012 ZBA Decision. Walker argues in this Motion for Partial Summary Judgment, however, that the 2009 ZBA Decision should remain in effect because, according to Walker, the 2012 Site Plan proposed the same child care building, parking, access, and design as proposed in the 2009 Site Plan.

The 2012 Complaint does not bring any count seeking relief from the 2009 ZBA Decision. The 2009 ZBA Decision is part of an entirely different case between the parties, which is not a part of this Summary Judgment motion. Moreover, this court has no jurisdiction to make any ruling relative to the 2012 Site Plan. Walker sought and received a zoning enforcement request from Mutch relative to the 2012 Site Plan, and Mutch determined that the 2012 Site Plan did not comply with the Bylaw. Unlike the 2009 Zoning Determination and the 2011 Zoning Determination, Walker never appealed the 2012 Zoning Determination to the ZBA, pursuant to G.L. c. 40A, §§ 8,15. Pursuant to G.L. c. 40A, § 15, Walker had thirty days to appeal the 2012 Zoning Determination, but failed to do so. Without properly exhausting its administrative remedies, Walker cannot appeal the 2012 Zoning Determination relative to the 2012 Site Plan to this court. As such, it appears that this court has no jurisdiction to make any ruling relative to the 2012 Site Plan.

Even if this court had jurisdiction to make any findings relative to the 2012 Site Plan, Walker would not be entitled to the relief it seeks. Walker seeks a declaration that the 2009 ZBA Decision remains in effect and should be applied to the 2012 Site Plan because the layout of the child care facility and all access and parking designs are identical to the 2009 Site Plan. In this regard, Walker seeks a finding from this court that the ZBA is bound by its findings in the 2009 ZBA Decision that “the four parking and driveway regulations... Sections 6.7.1, 6.7.7, 6.7.3, and 6.7.4 [Note 15] - would be unreasonable as applied to the proposed facility...” and that “the NFA limit of 1,000 s.f. would be unreasonable as applied to the proposed facility. It would effectively prohibit any child care at the Property, and is unduly restrictive where the Property is almost 2 ½ acres.”

The 2009 Site Plan (the subject of the 2009 ZBA Decision) and the 2012 Site Plan are materially different. The 2012 Site Plan consists of 4.69 acres whereas the 2009 Site Plan, which gave rise to the 2009 ZBA Decision, contained only 2.4 acres. Walker seeks to apply the 2009 ZBA Decision, which concluded that the FAR was the only issue holding back the Project, to the 2012 Site Plan, which remedied the FAR issue by adding the Kennedy Parcel. Walker fails to recognize, however, that the 2009 ZBA Decision found that sections 6.7.1, 6.7.7, 6.7.3, and 6.7.4 of the Bylaw would be unreasonable based on the 2009 Site Plan - not the 2012 Site Plan. The 2009 ZBA Decision was premised on the smaller, Original Parcel. Now that Walker intends to use the Combined Parcel for the Amended Project, the circumstances and the Amended Project itself have changed dramatically. As such, the ZBA cannot be bound by the 2009 ZBA Decision relative to the 2012 Site Plan.

Second, and more importantly, Walker is confusing apples and oranges with its Motion for Partial Summary Judgment. Walker is attempting to take the most beneficial aspects of the 2009 ZBA Decision and the 2012 ZBA Decision and apply them to the 2012 Site Plan without regard to the relevant land giving rise to the respective ZBA decisions. Walker cannot proceed in this manner. As such, it appears that Walker is left with three options in its quest to proceed with the Project or the Amended Project.

First, Walker may proceed in litigating the 2009 ZBA Decision. The 2009 ZBA Decision only related to the Original Parcel, not the Combined Parcel. Furthermore, the Zoning Amendment does not apply to the land shown on the Michele Circle Plan (i.e. the Original Parcel) because the Zoning Amendment was filed after the Preliminary Subdivision Application was filed. If Walker intended to proceed in this regard, the central issue for this court to determine would be whether the .10 FAR requirement is a reasonable regulation as applied to the Project. This issue has not been argued, and this court offers no opinion at this juncture.

Second, Walker could proceed in litigating the 2012 ZBA Decision relative to the 2011 Site Plan. Walker must realize, however, that the Original Parcel was the only land depicted on the Michele Circle Plan. As a result, the Original Parcel is the only land that is subject to the zoning process freeze. See Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 642 (2000). Both the 2011 Site Plan and the 2012 ZBA Decision consider the Kennedy Parcel as part of the Amended Project. The Kennedy Parcel is not subject to the zoning freeze, and therefore, the 2011 Site Plan is not subject to the zoning freeze. The 2012 ZBA Decision determined that the only issue with the 2011 Site Plan was its non-compliance with the 2,500 square foot NFA requirement, which the ZBA determined to be a reasonable regulation. As stated, supra, the zoning process freeze does not apply to the 2011 Site Plan, therefore the 2,500 square foot NFA requirement applies to the 2011 Site Plan and the Amended Project. If Walker were to further pursue its litigation of the 2012 ZBA Decision, then this court would have to determine whether the 2,500 square foot NFA requirement is a reasonable regulation as applied to the Amended Project. This issue has not been argued.

Third, Walker may accept the 2012 Site Plan as interpreted by the 2012 Zoning Determination, or Walker may start from scratch and propose another amended version of the Project. In this regard Walker must keep in mind that any version of the Project that incorporates the Kennedy Parcel as part of the project locus will not be subject to the zoning freeze. Walker could therefore submit a new site plan to Mutch (or the acting zoning enforcement officer) for a zoning determination and proceed from there. [Note 16]

Based on the foregoing discussion, I DENY Walker’s Motion for Partial Summary Judgment. The parties shall attend a status conference on August 13, 2013, at 10:00 A.M. to discuss how to proceed in this case. Judgment shall issue after all remaining issues have been resolved.