Opinion
21-P-806
07-27-2022
JOSEPH D. COGLIANO, JR., & others v. PLANNING BOARD OF NORTON & others (and two consolidated cases).
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
This appeal arises from efforts by NextSun Energy LLC (NextSun) to site a large solar photovoltaic installation (solar installation) over a cranberry bog in the town of Norton. The appellants are a group of abutters to the installation site, who have actively opposed the installation in litigation in the Land Court. Among other things, the abutters challenge the lawfulness of certain amendments to the Norton bylaws, which amendments were adopted shortly before NextSun applied for approval of the proposed installation; the bylaw changes made it simpler for NextSun to obtain approval.
The Land Court litigation encompasses three lawsuits that have been administered together by a single Land Court judge. As relevant here, the judge issued a consolidated summary judgment order, the gist of which was (1) to dismiss all the abutters' claims regarding the validity of the bylaws, (2) that the planning board erred by denying NextSun's request for a floodplain overlay district special permit (floodplain special permit), and (3) that portions of the abutters' claims regarding NextSun's site plan, including NextSun's proposals for battery storage, survived summary judgment and would need to go to trial. Following the summary judgment order, the judge issued a final judgment as to one of the cases on February 16, 2021, and a separate and final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), as to the other two cases on March 8, 2021.
The abutters raise several issues on appeal, including that the operative bylaw amendments were invalid because (1) the Town's notices of the public hearing listed the date as a Wednesday rather than a Tuesday, and (2) the abutters were entitled to mailed individual notices of the bylaw amendments. The abutters also argue various procedural errors by the judge, including that he improperly denied their motion for further discovery, and improperly refused to allow them to intervene in one of the three actions. We affirm.
Background.
In December of 2018, NextSun began the approval process for its solar installation project by applying to the planning board for site plan approval and a floodplain special permit (collectively, the application). At the time of NextSun's application, the land in question consisted of 23.3 acres operated as a cranberry bog and owned by Fairland Farm, LLC (Fairland bog).
Prior to NextSun submitting its application, the Town had considered and adopted a series of amendments to its zoning bylaws. The proposed bylaw amendments added several provisions relevant to the permitting of solar installations -- and one provision relating specifically to solar installations on "active" cranberry bogs. The proposed bylaw amendments explicitly removed special permit requirements for "large-s[c]ale, ground-mounted solar photovoltaic" installations in certain zoning districts. The proposed bylaws also added a definition for "as-of-right siting," which clarified that an "[a]s of right siting development may proceed as an allowed use without the need for a special permit, amendment, waiver or other discretionary approval." And the amendments provided an exception to an existing provision that barred solar installations from wetlands and related areas:
"Notwithstanding the foregoing, installations which qualify as an Agricultural Solar Tariff Generation Unit . . . located on cranberry bogs that are active at the time of the submittal of the application may be allowed within areas subject to the Massachusetts Wetlands Protections Act or any other Town Wetland Bylaw. . ." (emphasis added).
As was required for proposed bylaw amendments having to do with zoning, the planning board scheduled a public hearing for December 18, 2018. The Town did not mail individual notices to the abutters regarding the bylaw amendment hearing, but rather provided general notice. The notices -- which appeared in local newspapers and at the Town clerk's office -- stated that the meeting would occur on "Wednesday December 18, 2018." December 18, 2018, however, fell on a Tuesday rather than a Wednesday. At the December 18 public hearing, the planning board voted to recommend the bylaw amendments to the board of selectmen. The bylaw amendments were approved at a subsequent Special Town Meeting.
In early 2019 the planning board considered NextSun's application pursuant to the amended bylaws, and initially, it denied both NextSun's request for site plan approval and its request for a special floodplain permit.
Town of Norton and NextSun Energy LLC.
In May 2019, NextSun initiated the first of the Land Court cases by appealing the planning board's initial denial under G. L. c. 40A, § 17 and G. L. c. 240, § 14A (NextSun action). In June of 2019, the abutters moved to intervene in the NextSun action. The abutters argued that although they and the defendant municipal parties both sought to uphold the planning board's decision, the municipal parties would not adequately represent the abutters' interests.
The intervention issue was not resolved at the time, however, because upon a joint motion by NextSun and the planning board, the judge remanded the matter so that the planning board could consider an amended site plan submitted by NextSun. On remand, the planning board approved NextSun's application as to the site plan, but again denied NextSun's application for a floodplain special permit (remand decision). NextSun thereafter amended its Land Court complaint, to appeal the remand decision.
Meanwhile, in June 2019, the abutters filed a second lawsuit (the original abutter action). The abutters' complaint alleged, among other things, that the bylaw amendments were invalid as "spot zoning" and because the Town had not given proper notice of the planning board hearing (i.e., mailed notice) to the abutters. In November 2019 the abutters filed a third lawsuit, which appealed the portion of the planning board's remand decision that approved NextSun's amended site plan (the abutter remand action).
In May 2020, NextSun and the municipal parties moved for summary judgment in all three cases. The abutters thereafter filed successive rule 56 (f) motions seeking further discovery regarding, among other things, NextSun's role in drafting the bylaw amendments, the number of active cranberry bogs in the Town, and battery storage. The judge denied each rule 56 (f) motion, although the parties did stipulate that for purposes of summary judgment the judge could infer that the Fairland bog was the only active cranberry bog in Norton at the time of the bylaw amendments.
In February 2021, the judge issued a thoughtful decision partially granting summary judgment to NextSun and the municipal parties. Relevant here, the judge reasoned that the Town gave proper statutory notice of the bylaw amendments, because the "error in describing the day of the hearing as falling on a Wednesday rather than a Tuesday is just ... a trivial procedural defect that was not prejudicial." The judge also concluded that general rather than individual notice satisfied the bylaws under the circumstances. The judge further ruled that the planning board had erred in denying the floodplain special permit. In effect, the judge's decision dismissed all claims in the original abutter action, but granted only partial summary judgment in the NextSun action and the abutter remand action.
Joseph D. Cogliano, Jr., & others vs. Town of Norton & others; NextSun Energy LLC vs. Planning Bd. of Norton & another.
Shortly after the summary judgment decision, the judge denied the abutters' pending motion to intervene in the NextSun action. The judge's order, however, directed that the abutters "be parties to negotiations regarding remand of flood plain special permit and conditions to be imposed." Based upon his summary judgment order, the judge also issued a separate and final judgment under rule 54 (b), reasoning that "[t]his will allow the issuance of the floodplain special permit . . ., while at the same time allowing the [abutters] to appeal the judgment . . . so that all the questions decided in [the summary judgment decision] can be addressed at once." This appeal followed.
Discussion.
1. Notice requirements.
The abutters argue that the Town failed to provide proper notice of the planning board hearing on the bylaw amendments, as required by G. L. c. 40A, § 5 and the Norton bylaws, because (1) the notice incorrectly stated that December 18, 2018 was a Wednesday rather than a Tuesday, and (2) the Town did not mail individual notices to the abutters. We disagree.
a. Statutory notice.
As the notice provisions of G. L. c. 40A, § 5 and the Town bylaws are materially different, we begin with the requirements of c. 40A. That statute specifically requires a planning board hearing, but does not require individual notice to abutters. G. L. c. 40A, § 5. Rather, "[n]otice of the time and place of such public hearing . . . shall be published in a newspaper of general circulation in the city or town." G. L. c. 40A, § 5. Here, publication notice was given and the date of the meeting was accurately listed in the notice -- December 18, 2018.
We are not persuaded that the zoning bylaw must be invalidated because the published notice also identified December 18 as a Wednesday, rather than a Tuesday. Importantly, the statute itself declares that any defect in "the form of any notice" shall not result in invalidating a zoning bylaw, unless "such defect is found to be misleading." G. L. c. 40A, § 5. The abutters suggest that the notice qualifies as "misleading" because town residents could have arrived on a Wednesday, a day later than the actual public hearing, but this ignores that a reader would be alerted to the inconsistency by simply looking at a calendar, and could then seek further clarification from the Town. The abutters provide no evidence that any person was actually misled. We agree with the motion judge that the error in this case was not sufficiently consequential to result in invalidating the bylaw.
b. Notice under the bylaws.
The Norton bylaws contain their own provision as to notice of hearings on zoning bylaw amendments, as follows:
"Notices of such hearing shall be mailed to all property owners . . . included within or abutting land subject to amendment . . . General notice will serve where the proposed amendment is of universal or wide application in the Town."
The abutters argue that the bylaws express a "prefer[ence]" for mailed rather than general notice, and that here they were entitled to individual notice as "property owners . . . abutting land subject to amendment," in particular due to the provision of the bylaw amendments discussing solar installations on active cranberry bogs. The crux of the abutters' argument is that this bylaw amendment was not of "universal or wide application," because the parties stipulated that "at the time of the [bylaw amendments] through the date of the hearing, there were no other active cranberry bogs in the Town, except for [the Fairland bog]."
We are not persuaded that the general notice provided here violated the bylaw. As the Town points out, the bulk of the proposed amendments plainly had "wide application" to the town -- they defined "as of right siting," and removed special permit requirements across multiple zoning districts. Town residents impacted included every property owner in the town, so individual notice was not required.
Our conclusion is not altered because one portion of the bylaw amendments -- relating to "active" cranberry bogs --arguably has more narrow application. First of all, the abutters' position, that as a result of this one provision only they were entitled to mailed notice, is hardly an obvious reading of the notice bylaw. As a matter of plain language, the "proposed amendment," in toto, had "universal or wide application," so general notice would suffice. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012) (bylaws interpreted in accordance with ordinary rules of statutory construction). The abutters' position at most exposes a potential ambiguity in the notice bylaw, and it raises an issue (whether individual notice is required) on which we would ordinarily defer to the board's construction of its own bylaws. Perry v. Zoning Bd. of Appeals of Hull, 100 Mass.App.Ct. 19, 23 (2021) (board's reasonable interpretation of its bylaws entitled to deference).
The judge also denied the abutters' motion for further discovery under Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), which the abutters filed after NextSun and the municipal parties had filed for summary judgment. He also denied the abutters' motion to intervene in one of the cases.
But in any event, here the language of the proposed bylaw amendment is not restricted to specified parcels of land, but rather to "cranberry bogs that are active at the time of submittal of the application" (emphasis added). This language contemplates that the number of active cranberry bogs in the town may fluctuate over time. Although (for purposes of summary judgment) the Fairlands bog was the only active cranberry bog at the time of the bylaw amendments, that might not be the case at the time of future applications. Therefore, the bylaw provision was applicable not only to the Fairland bog, but to any property in Town that might be an active cranberry bog in the future. General notice was appropriate.
2. Motion to intervene.
The abutters next argue that the judge erred by denying their motion to intervene in the NextSun action. We disagree.
We review a decision on a motion to intervene as of right de novo. Beacon Residential Mgt., LP v. R.P., 477 Mass. 749, 753 (2017). "A judge should allow intervention as of right when (1) the applicant claims an interest in the subject of the action, and (2) he is situated so that his ability to protect this interest may be impaired as a practical matter by the disposition of the action, and (3) his interest is not adequately represented by the existing parties." Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203, 205 (1991). See Mass. R. Civ. P. 24 (a) (2), 365 Mass. 769 (1974) .
Here, the abutters' arguments fail on the second prong --intervention in the NextSun action was not required in order for them to protect their interests as a practical matter. The only specific harm that the abutters claimed due to the denial of intervention in the NextSun action was the absence of standing to appeal "the portion of the . . . separate and final judgment in which the [floodplain special permit] decision was annulled." This argument has no practical importance, however, because the abutters have raised this same issue and challenge the issuance of the floodplain special permit in the third lawsuit, the abutter remand action. See Roxse Homes Ltd. Partnership v. Roxse Homes, Inc., 399 Mass. 401, 409 (1987) (motion to intervene properly denied when preliminary injunction adequately protected interests).
The facts herein are summarized from the summary judgment record. We construe all facts in the light most favorable to the abutters, as the nonmoving parties. HeIfman v. Northeastern Univ., 485 Mass. 308, 314 (2020).
The NextSun action, in which the abutters attempted to intervene, concerned the planning board's original decision to deny NextSun's site plan and floodplain special permit. By the time the judge denied the motion to intervene, the abutters had already filed the abutter remand action, which also challenged the approval of NextSun's site plan. After the judge issued his summary judgment decision, the abutters amended their complaint in the abutter remand action to challenge the issuance of the floodplain special permit. Once the validity of the floodplain special permit is finally resolved in the abutter remand litigation, the abutters can pursue their arguments with respect to the floodplain special permit before this court, if necessary. See Prudential Ins. Co. v. Board of Appeals of Westwood, 18 Mass.App.Ct. 632, 635 (1984) (recognizing interveners could file another action following approval of site plan).
The planning board required NextSun to apply for a floodplain special permit, which NextSun did under objection. The parties continued to litigate whether such a floodplain special permit was necessary, until the issue was resolved at summary judgment.
The abutters subsequently amended their complaint in the abutter remand action to challenge the planning board's issuance of the floodplain special permit.
3. Other issues.
Finally, we also discern no merit in the abutters' arguments that the judge erred in applying (1) rule 56 (f), and (2) rule 54 (b).
As to rule 56 (f), the abutters' motion was required, among other things, to "set forth a plausible basis for believing that specified facts . . . probably exist; and it should indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion." Alphas Co. v. Kilduff, 72 Mass.App.Ct. 104, 110 (2008). Here, the abutters' rule 56 (f) motion (and accompanying affidavit) dated July 9, 2020 stated only that further discovery was required to "more fully discover disputed material facts in the areas of notice, the use of storage batteries, NextSun's role in drafting the bylaw, Planning Board documents concerning the absence of Kevin O'Neil at the August 6th, 2019 Planning Board Public Hearing." The motion does not, however, identify what those disputed material facts would be or what relevance they might have to the pending summary judgment motions. The judge did not abuse his discretion by denying the motion. Caira v. Zurich Am. Ins. Co., 91 Mass.App.Ct. 374, 384 (2017).
Similarly, as to rule 54 (b), a judge may enter a separate and final judgment "upon an express determination that there is no just reason for delay." Mass. R. Civ. P. 54 (b). "The determination of the presence or absence of a just reason for delay ... is left to the sound discretion of the trial judge and is subject to reversal only for an abuse of that discretion." Long v. Wickett, 50 Mass.App.Ct. 380, 386 (2000). Here, the abutters expressed their intention to appeal the judge's dismissal of the original abutter action. The judge reasoned that issuing the separate and final judgment "will allow the issuance of the floodplain special permit as requested by NextSun and the Town, while at the same time allowing the [abutters] to appeal the judgment and include it in their appeal of the judgment in [the original abutter action] so that all the questions decided in the court's [summary judgment decision] can be addressed at once." Particularly since the judge's consolidated summary judgment order had resulted in an appealable final judgment in one of the three actions -- the original abutter action -- the judge reasonably concluded that all issues resolved by the multi-case summary judgment decision should be addressed in one appeal. There was no abuse of discretion.
Judgments dated February 16, 2021, and March 8, 2021, and order dated February 24, 2021, denying motion to intervene, affirmed.
Massing, Singh & Englander, JJ.
We note that the abutters also raised a claim in the Land Court that the bylaw amendments constituted "spot zoning." The judge rejected that argument, and the abutters have not challenged this ruling on appeal.