Blatman, Bobrowski, Mead & Talerman, LLC Concord, MA

MASSACHUSETTS APPELLATE LAND USE DECISIONS AND HAC DECISIONS

JANUARY - DECEMBER 2015

Mark Bobrowski*

Blatman, Bobrowski, Mead & Talerman, LLC Concord, MA

Wind Turbine at Risk

Drummey v. Falmouth, 87 Mass. App. Ct. 127 (2015)

In Drummey, Plaintiff abutters alleged that they were experiencing significant distress due to the installation of a wind turbine - Wind 1 - adjacent to their property. Defendant, the Town of Falmouth, erected said turbine and another - Wind 2 - to power the municipal wastewater treatment plant without obtaining a special permit from the Falmouth ZBA. Plaintiffs contended that in doing so, Defendant violated the town zoning by-law. Wind 1 and Wind 2 are large facilities, each in excess of 1.5 megawatts.

The ZBA voted 3-1 to reverse the decision of the Building Commissioner.

At trial, Plaintiffs argued that in order for the town to construct a wind turbine, a special permit was required under the bylaw. Indeed, §240-166 of the Falmouth bylaw provided that a "petitioner may apply for a special permit to allow construction of a windmill." However, the judge opined that this section of the bylaw "does not apply in the limited circumstances where the town. . . desires to construct and operate a windmill for municipal purposes in a district where all such purposes are permitted as right." This conclusion was reached as a result of the building commissioner's determination that the construction of a windmill fell under the provision of §240-30B that addresses permitted community service and municipal uses.

On appeal, the court found that the building inspector's determination was misguided. Because the erection of windmills was specifically addressed in §240-166, it was impliedly excluded from §240-30B. The "statutory expression of one thing is an implied exclusion of other things omitted from this statute".

Additionally, the court noted that even if §240-30B did apply, §240-18 specifically states that "where an activity might be classified under more than one of the within use, the more specific classification shall govern. Thus, the court vacated the judgment of thetrial court and remanded the case.

UPDATE: Since Drummey was decided in the summer of 2015, the Falmouth ZBA has been a beehive of activity. Pending is the Town’s application for a special permit to rescue Wind 1. In a separate enforcement request, the ZBA decided that Wind 1 must cease operations until the special permit application is decided. Wind 2, meanwhile, recently dodged a bullet when the ZBA ruled that it was beyond enforcement due to laches - the abutters waited five years to bring an enforcement request. All of these matters have been appealed, so far to Barnstable Superior Court.

* Thanks to my New England Law School 3L research assistant, Justin Raphaelson, who summarized these key cases.

A Citgo Lot is Not Nonconforming

Palitz v. Zoning Board of Appeals of Tisbury, 470 Mass. 795 (2015)

In Palitz, the original owner of a subdivided lot sought a variance from the Tisbury ZBA to make the lot and its subdivision lawful under the existing subdivision control law. An Approval Not Required Plan (ANR plan) was recorded in 1994, the variance was granted in 1995, and the lot was sold.

Plaintiff acquired said lot in 2007. In 2012, Plaintiff planned to raze the existing building and replace it with one that was approximately ten feet taller and added a bedroom, third floor, and a full basement. The zoning enforcement officer refused to issue a building permit unless the variance from 1995 was amended by the ZBA. That amendment was subsequently denied by the ZBA due to the increased height and nonconforming front yard setback, which would have obscured the view of an abutter.

In the Land Court, Plaintiff argued that the property was entitled to grandfather protection under G.L. c. 40A §6, because the dwelling "predated the town's zoning bylaw and the lot was created pursuant to the existing structures exemption from the subdivision control law." Thus, plaintiff argued that neither the 1995 variance nor an amended variance were necessary to her project. The SJC disagreed.

On appeal, the SJC stated that while a preexisting nonconforming structure, such as the one at issue, runs with the land, the "introduction of a new non-conformity to a pre-existing nonconforming residential structure requires a variance." Thus, any new nonconformities that were introduced were not afforded grandfather protection. Rather, it was the 1995 variance that rendered the pre-existing nonconformities lawful. By the SJC's logic, Plaintiff was required to obtain a new or amended variance to proceed on their project.

More Mendon Fun

Showtime Entertainment, LLC v. Mendon, 472 Mass. 102 (2015)

In Showtime, the SJC was presented with a two-fold question about whether an adult entertainment business is legally permitted to sell alcohol on its premises. The questions were as follows:

*Is there a countervailing state interest sufficient to justify the town's ban on alcohol service at adult entertainment businesses?

*If the ban is so justified, is it adequately tailored?

Showtime Entertainment applied for a license to operate an adult entertainment business after an overlay district was created in which adult entertainment was allowed to operate.

Simultaneously, a town citizen group petitioned to the town to more heavily regulate permissible activities in adult entertainment districts, such as the operating hours, structure, and sale of alcohol.

Showtime's application was subsequently denied, and they filed suit in Federal District Court seeking a declaratory judgment declaring that the restrictions were unconstitutional. The court favored the town stating that they were not unconstitutional. On appeal to the Federal Court of Appeals for the First Circuit reversed, but they left the question of whether alcohol was permissible to be sold to the SJC.

In addressing the first question, the SJC opined that the town's argument that it had "sufficient evidence to believe that the presence of adult entertainment and alcohol at the same location would lead to increased crime," was adequate evidence to demonstrate a countervailing state interest. The town used studies from adjacent municipalities to accentuate its point, and because Showtime showed no affirmative evidence to counter the argument, a countervailing state interest existed.

In relation to the second question, the SJC favored Showtime, insofar as they concluded that the alcohol restriction is not narrowly tailored, but instead overbroad. The SJC cited a hypothetical situation where a live play is conducted in the adult entertainment overlay district but is not necessarily sexually oriented. If alcohol was only restricted because of the crime risk, then it would seem irrelevant in relation to the play, which possess more artistic and social significance, yet is not linked to crime. Accordingly, the SJC concluded that the town must seek other, narrower means to pursue its goal of crime prevention in the adult overlay district.

Special Permit Denial Affirmed

Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox, 87 Mass. App. Ct. 871 (2015)

Plaintiff was denied a special permit to construct a retirement community by ZBA of Lenox because the proposed location did not conform to the character of the neighborhood nor the public welfare, and posed a traffic hazard for the community.

At trial, the both the Housing Court and Land Court upheld the ZBA' s decision. The case was transferred to the latter after it was determined that the Housing Court did not have subject matter jurisdiction overthe matter.

On appeal, the court held that even though the special permit could be lawfully granted because "the applicant's evidence satisfied the statutory and regulatory criteria," the board retains discretion to deny the permit so long as it is not based on legally untenable ground or is "unreasonable, whimsical, capricious, or arbitrary."

Although the court held that the traffic issue was not a basis for upholding the ZBAs decision, three other criteria under §6.1.1 of the bylaw were relevant. Because the ZBA found that the proposed use was not in harmony with the bylaw's general intent and purpose, was not essential or desirable to the public conveniences or welfare at the proposed location, and was detrimental to adjacent uses and the character of the neighborhood, the trial court did not err in its determination to uphold the ZBA's decision.

Housing Court Jurisdiction

Skawski v. Greenfield Investors Property Development, LLC, 87 Mass. App. Ct. 903 (2015)

Plaintiff abutters brought this suit in response to the ZBA's issuance of a special permit to Defendants to develop a 135,000 square foot retail facility in the town of Greenfield. Relying on the Buccaneer decision, Defendants tempted to dismiss Plaintiffs action because they alleged that the Housing Court was required to transfer the case elsewhere. After the Housing Court judge unsuccessfully transferred the case, the motion to dismiss was denied.

On appeal, the abutters argued that the Housing Courthad concurrentjurisdiction with the Land Court and Superior Court to hear permit sessions, but the court disagreed. The court reasoned that G.L. c. 185 §3A deprives the Housing Court of jurisdiction, a statute that explicitly requires the transfer of a permit issue for large-scale development projects to either the Land Court or Superior Court. In its final acknowledgement, the court determined that the Defendant's motion to dismiss should have been granted due to the Housing Court's lack of subject matter jurisdiction.

Developer Nonperformance

Nantasket Beachfront Condominiums, LLC v. Hull Redevelopment Authority, 87 Mass. App. Ct. 455 (2015)

Plaintiff Nantasket Beachfront Condominiums and Defendant Hull Redevelopment Authority entered into a contract for purchase and development of land in Hull, where Plaintiff would construct 72 units of housing and construct a new public park. Due to neighborhood opposition, significant delays were encountered and Defendant notified Plaintiff that it was retaining liquidated damages of $857,500 in deposits that Plaintiff had made after the contract was terminated by Defendant.**

In the Superior Court, the judge found for Defendant. The court opined that because Plaintiff did not cure its default, namely, the inability to secure financing, missed extension deposit payments and in tum, the indefinite delay of the closing date, Defendant could recover liquidated damages provided under the contract. Because Plaintiff did not cure within the thirty days contemplated by the contract, they were in breach.

On appeal, Plaintiff argued that there was a conflict of interest within Defendant's board. Prior to being elected to the board, two members allegedly were in vehement opposition of the success of Plaintiff s project, and thus Plaintiff contended that this was unethical and in bad faith. However, the court noted that because Defendant is one singular contracting entity rather than a group of individuals, bad faith is limited to the authority as a whole. However, instead of bringing claims to the court, Plaintiff should have filed a complaint with the State Ethics Commission instead.

As for the contract claims, the court maintained that Plaintiff nonperformance was unexcused. Plaintiff claimed that Defendants were in material breach for not memorializing the vote for a formal amendment to the contract, but the court found that this breach was not material. Moreover, in regard to the extension deposit payments, the court found that Plaintiff was given ample notice of their default, which required them to make payments that they failed to make. Finally, in relation to the liquidated damages, the amount owed was found to be fair because at the time of contracting, theactual damages flowing from a breach were hard to ascertain, and because the total sum of liquidated damages represented a "reasonable forecast of damages expected to occur in the event of breach."

Fuel Storage License

Cumberland Farms, Inc. v. City Council of Marlborough, 88 Mass. App. Ct. 528

In Cumberland, plaintiff pursued a special permit and a fuel storage license in order to open a gasoline station and convenience store in the town of Marlborough. The special permit was issued by constructive grant, but the fuel storage license application denied without explanation. Thus, plaintiff filed injunctive action in Superior Court, which affirmed the council’s decision to deny the application.

Plaintiff contended on appeal that the Superior Court judge erroneously applied the arbitrary and capricious standard review that led to the denial of the fuel storage license. However, the court of appeals judge noted that the council’s proceedings were not adjudicatory in nature, but discretionary. The council expressed concerns about oil leaks, accidents, and the effects on neighbors, which were recorded in a transcript as opinions, not factual findings. Consequently, the decision of the council was merely a discretionary action, meriting review only for an arbitrary and capricious decision, which requires only that there be a rational basis for the decision. As a result, the court of appeals judge rejected plaintiff’s argument that the arbitrary and capricious standard was improperly applied, and found for the defendant.

Drug and Alcohol Recovery Facilities

Safe Haven Sober Houses, LLC v. Turner, Mass. App. Ct. (unpublished decision 2015)

This case is illustrative of the wave of drug and alcohol rehabilitation facilities sweeping across Massachusetts and the conflicts that result in local permitting. According to Governor Baker’s Opioid Addiction Working Group:

Opioid addiction is an epidemic that has spread across this state and throughout the nation. A recent report found that nearly 4 in 10 (39%) of residents in the Commonwealth know someone who has misused prescription painkillers in the past five years. When prescription opioids become unavailable, some turn to heroin. Addiction has torn apart far too many of our families and has killed far too many of our loved ones.

The Turner case involved allegations that the City Councilor engaged in disparate treatment in the permitting of the sober house. More often, the claim is failure to make a reasonable accommodation. In such cases, the issues are whether:

1. The requested accommodation would require a fundamental alteration of a legitimate Town policy; and

2. The requested accommodation would impose undue financial or administrative burdens on the Town government.

The burden is on the municipality.

See the end of this section for a model by-law for the processing of requests for reasonableaccommodations.

RECENT CHAPTER 40B AND HOUSING APPEALS COMMITTEE CASES

First Successful Abutter Appeal under Chapter 40B

Reynolds v. Zoning Board of Appeals of Stow, 88 Mass. App. Ct. 339 (2015)

In Reynolds, an abutter to a proposed Stow Chapter 40B elderly housing project brought an action against the ZBA of Stow challenging the grant of a comprehensive permit to build an extension to an existing project. The abutter contended that it was unreasonable for the board to waive certain waste water disposal limitations contained in a more stringent Town zoning bylaw.

Stow Elderly Housing Corporation (SEHC), the applicants for the permit, planned to subdivide a two acre lot (partially located in the town’s groundwater resource protection district and adjacent to the abutter) to construct a three-story building containing thirty seven one-bedroom units of elderly housing, a function hall, and administrative offices (located on the second lot of thesubdivision). Several zoning waivers were granted by the board, and the ZBAA imposed a condition that required SEHC to obtain a permit to connect the building to a public water supply approved in accordance with Massachusetts DEP regulations.

Because there was no public water supply nearby, SEHC planned to service the building with a private, on-site sewage disposal system located in the Town’s water resource protection district (WRPD). Under the WRPD, on-site sewage disposal systems cannot exceed 110 gallons per day (gpd) per 10,000 square feet of lot area. The project would generate 700 gpd per 10,000 square feet of land area. The state does not have a comparable standard for wastewater disposal unless the system is located in a nitrogen sensitive area. Here, the proposed system was not. The ZBA waived the local requirement after testimony from SEHC’s consultant that Title V would suffice.

On appeal, the Superior Court judge found that “it is more likely than not” that SEHC’s wastewater system would cause nitrogen levels to exceed 10 parts per million at the well serving the closest abutter.

However, the Superior Court applied the state’s standards rather than the town standards, which were less The Judge concluded that the comprehensive permit was properly granted because the sewage disposal system will meet applicable state regulations, which do not require proof that adjacent wells will not have elevated nitrogen levels as a result (whereas the Stow bylaw does require proof).

On appeal, the Appeals Court, after finding standing, framed the question as “whether ... presuming the system meets other applicable state standards, it was reasonable for the board to waive the local, more restrictive, provisions of the by-law.”