Opinion
15-P-1438
08-07-2017
Philip JOHENNING & another v. TOWN OF MILTON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal a Land Court judgment upholding the facial validity of a zoning by-law amendment that allows, in specified circumstances, for the operation of landscaping businesses in residential districts by special permit. The plaintiffs claim that the amendment constitutes impermissible "spot zoning," that it violates the special permit provision of the Zoning Act, and that the town should be estopped from defending it because of a position the town took in a prior zoning appeal. We affirm.
Background. The plaintiffs are abutters to Thayer, a nursery and landscaping business operating in Milton. In March, 2013, the plaintiffs, asserting that Thayer was exceeding the scope of a special permit that it had been granted to operate a nursery in the parties' residential district, asked the Milton building commissioner to take enforcement action under G. L. c. 40A, § 7. In particular, the plaintiffs argued that Thayer's landscaping business and its alleged operation of a kiln to dry firewood were uses not permitted either as of right or by special permit in a residential zone. In response, the building commissioner prepared a report to the board of selectmen but did not impose a fine or enjoin any use of the locus. The plaintiffs then appealed to the zoning board of appeals (ZBA) pursuant to G. L. c. 40A, § 8.
Defendants Thayer Nursery Corporation; Margaret T. Oldfield, also known as Margaret T. Laing; and F. Joshua Oldfield will be referred to collectively as "Thayer."
As described infra, section III.A.7(d) of the Milton zoning bylaw allows for operation of a nursery in a residential zone by special permit. Section III.A.6 also allows for an accessory use in a residential district "on the same lot with and customarily incident ... to the uses permitted in accordance with [subsection 7], and not detrimental to a residential neighborhood."
In September, 2013, the ZBA ruled that Thayer could not use the locus "for commercial landscaping and commercial contracting purposes based upon [s]pecial [p]ermits previously issued by the [ZBA], and that [Thayer] must seek and secure a use variance for any continued use of the [locus] for commercial landscaping and commercial construction purposes[.]"
The ZBA decision relied on the Land Court's decision in Lydon v. Milton Bd. of Appeals, 20 LCR 251, 255-260 (2012). In Lydon, a case involving an unrelated nursery and landscaping business in Milton, the court held that a landscaping business could not be authorized with a special permit pursuant to section III.A.7(d) of Milton's zoning by-law, and thus such a business required a variance. See id. at 259-260.
In May, 2013, after the ZBA's decision and a resulting cease-and-desist order to Thayer, the Milton town meeting passed an amendment to the by-law that would allow the planning board to grant a special permit for a landscaping business on a residential lot or lots where a landscaping business was already in existence in July, 2012, provided that the applicant or its predecessor(s) "on that date held a special permit or use variance issued by the [ZBA] pursuant to [s]ection [III.A.7(d) ][ ] with regard to all or part of any such lot."
The amendment originally referred erroneously to sections III.A.4 and III.A.6, which do not concern uses available by special permit or variance. The town meeting later corrected the amendment so as to refer instead to section III.A.7(d), which allows the ZBA to authorize by special permit, in a residential zone, "[o]n a parcel of five acres or less a greenhouse or nursery selling only products raised on the premises [.]" Thayer's use of the locus as a nursery is based on a special permit originally issued in 1967 pursuant to this section. A 1987 amendment to that special permit allowed Thayer to use an additional lot (now part of the locus) for additional activities related to the business, and to sell firewood. Thayer argued to the ZBA that its landscaping business was allowed by the 1967 special permit as an accessory use to its primary use of the land as a nursery. See note 4, supra. The ZBA found that, at one time, Thayer's commercial landscaping business was such an accessory use, but had "been expanded in volume and intensity so as to be divorced from its previous roots as an accessory use."
In October, 2014, Thayer applied to the planning board for a special permit pursuant to the newly-adopted provision. Shortly thereafter, in early November, 2014, the plaintiffs initiated this action in the Land Court, challenging the validity of the amendment pursuant to G. L. c. 240, § 14A, and G. L. c. 185, § 1(j ½ ).
In a decision dated September 1, 2015, a Land Court judge denied the plaintiffs' motion for summary judgment and allowed the municipal defendants' cross motion, concluding that the amendment to the by-law was a valid exercise of Milton's zoning power. The plaintiffs appealed the resulting judgment. Subsequently, the amendment's erroneous cross-reference, see note 5, supra, was discovered and corrected by town meeting. Due to the error, the original judgment was vacated, and a new judgment was entered on April 5, 2017, declaring the corrected amendment valid insofar as challenged by the plaintiffs. They again appealed, and the appeals were consolidated in this court. We refer hereinafter to the corrected amendment as the "amendment."
A special permit issued to Thayer in December, 2015.
Thayer then submitted a new application for a special permit.
Discussion. 1. Spot zoning. Reviewing the grant of summary judgment de novo, see Miller v. Cotter, 448 Mass. 671, 676 (2007), we reject the plaintiffs' claim that the amendment is invalid because it constitutes impermissible spot zoning in violation of the uniformity provision of G. L. c. 40A, § 4.
a. Governing principles. "The party challenging an amendment as spot zoning has the heavy burden of showing that it conflicts with the [zoning] enabling act." Andrews v. Amherst, 68 Mass. App. Ct. 365, 369 (2007). "[T]he challenger must prove by a preponderance of the evidence that the regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare." Ibid., quoting from Van Renselaar v. Springfield, 58 Mass. App. Ct. 104, 108 (2003). "[A]s an action of the local legislative body, the zoning amendment is entitled to every presumption in its favor, and the reviewing court should not substitute its own judgment." Ibid. To be sure, "[t]he applicable principles are of judicial deference and restraint, not abdication." Ibid. And, "[i]f the reasonableness of the amendment is even ‘fairly debatable,’ it will be upheld." Ibid.
The prohibition against spot zoning is reflected in G. L. c. 40A, § 4, which states, "Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." See Canteen Corp. v. Pittsfield, 4 Mass. App. Ct. 289, 293 n.1 (1976) (spot zoning violates Zoning Act's uniformity principle). But the uniformity principle is not absolute. "Some exceptions to uniformity are sanctioned by [t]he Zoning Act and involve generally a limited tolerance for nonconforming uses ... and provision for special permits and variances ..." (emphasis supplied). SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 108 (1984) (citing G. L. c. 40A, §§ 6, 9, 10 ).
What is forbidden is not simply the singling out of one parcel for differential treatment, but doing so where the "surrounding land ... is indistinguishable, thereby ‘producing, without rational planning objectives, zoning classifications that fail to treat like properties in a uniform manner’ " (emphasis supplied). Andrews, 68 Mass. App. Ct. at 369, quoting from W. R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559, 570 (2002).
No doubt "the amending power may not be invoked solely to confer an economic benefit upon the owner of a comparatively small area within an essentially residential district" (emphasis supplied). Beal v. Building Commr. of Springfield, 353 Mass. 640, 642 (1968). But where an amendment promotes the public welfare, it is not invalid merely because it may also confer such a benefit. See Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228, 229-230 (1964) ; Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 361 (1973). See also Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38, 40-43 (1975), and cases cited (rezoning locus to permit expansion of town's only industry and largest employer, which otherwise would move to another community, promoted public welfare and was not impermissible spot zoning). And if the amendment promotes the public welfare, "the actual reason for the enactment, not to mention the motivation of the sponsors of the action, is not relevant." Andrews, supra at 368.
At oral argument the plaintiffs cited National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 (1990), as the case most clearly establishing that a zoning provision is spot zoning if it seeks to protect small businesses. What National Amusements held improper was rezoning a particular parcel to prevent its owner from competing with existing small businesses. Id. at 311, 312. No such consideration is present here.
b. Application of governing principles. Even if the plaintiffs were correct that the generally-worded amendment at issue here applies only to Thayer, they have not shown that it is arbitrary and fails to promote the public welfare. First, the amendment's requirement that landscaping businesses permitted under it must have been in operation in July, 2012, is reasonable and nonarbitrary. The amendment is written to permit the continued operation—under controlled, special-permit conditions—of businesses that had been operating under what, prior to the 2012 Lydon decision, was thought to be a valid permitting process. Contrary to the plaintiffs' claim that the amendment "destroys the predictable character of the [t]own's residential districts," the amendment requires that the activities authorized by any special permit be limited to the types and levels of activity being conducted by special permit or variance holders in 2012.
Although the amendment does not, on its face, single out any particular parcel for special treatment, but instead establishes criteria for applying for a special permit that multiple landowners could satisfy, the plaintiffs argue (and the defendants deny) that only Thayer meets these criteria. We need not reach that issue, because, as discussed, a showing that the amendment applied only to Thayer would not suffice to invalidate it. Thus it is also unnecessary to reach the plaintiffs' claim of inadmissibility of the defendants' affidavits concerning the amendment's applicability to other businesses. Although the judge denied the plaintiffs' motions to strike, she expressly did not rely on this evidence in concluding that the amendment was valid.
A greater level of a particular activity may be permitted if "there is a reliable showing that [such] greater level would be consistent with the purposes of [the amendment] and cause no adverse effects on abutters or nearby residents.... If necessary to achieve the purposes of [the amendment], a level of activity less than the level in 2012 may be required." Section III.N.2. of the by-law.
The amendment appears to be a permissible legislative response to a judicial decision. We agree with the motion judge that Milton's attempt "to legitimize uses in existence and thought to have been legally allowed prior to [Lydon ]" was well within the general objects of the Zoning Act.
Nor does the amendment arbitrarily distinguish between properties that are similarly situated. The Thayer property, for example, where nursery and landscaping businesses were operated in 2012 so as to meet the threshold criteria to apply for a special permit under the amendment, is unlike the plaintiffs' property, which does not meet those criteria.
Moreover, we agree with the judge that it was reasonable for the town to determine that "allowing longstanding local landscaping businesses to continue operating in Milton is in accordance with the public welfare." The court in Lanner, 348 Mass. at 229, explained that "[s]mall business areas with food stores and shops are often a convenience and sometimes a necessity in or near a large residential area.... Municipal planning for this purpose cannot be said to be incompatible with the promotion of the public welfare." Similarly, Milton's town meeting has determined, as evidenced by the two-thirds vote required to pass zoning amendments, that preexisting landscaping businesses provide a service to the community. Whether there was a public necessity for permitting such businesses in residential districts "was a matter for the legislative determination of the town meeting, the members of which could exercise judgment in the light of their special knowledge of conditions in the town." Pierce v. Wellesley, 336 Mass. 517, 522 (1957). Additionally, the amendment's special permit process allows the planning board to impose conditions on landscaping businesses to protect neighbors from possible adverse impacts, and an initial permit issued under the amendment is valid for only three years or less, with the possibility of renewal for five-year terms.
In short, the plaintiffs have not shown that the use allowed by the amendment does not promote the public welfare. And, "[o]nce it is established that the purpose of the amendment is to promote the public welfare, the desirability or the necessity of using a particular locus, as compared with other sites, to accomplish the purpose is a matter to be decided by the local legislative body." Lanner, 348 Mass. at 229. "It is no objection to a legislative solution of a public problem that it will incidentally lead to private profit or advantage." Id. at 229-230.
c. Absence of a well-considered plan. We also reject the plaintiffs' argument that the amendment constitutes impermissible spot zoning because it was not adopted "in accordance with a well-considered plan for the public welfare." Board of Appeals of Hanover, 363 Mass. at 362. See Sullivan v. Acton, 38 Mass. App. Ct. 113, 115 (1995). We note as an initial matter that neither of these decisions held that a town must follow any particular planning process, or conduct any particular studies, in order to defeat a claim of spot zoning. The overarching test remains whether the amendment promotes a proper purpose. See Andrews, 68 Mass. App. Ct. at 373 n.13.
As to the plaintiffs' specific challenges to the process followed here, first, we reject their claim that the process was flawed because the planning board's chairman worked with Thayer on the drafting of the amendment. We see nothing inherently wrong with public officials working with interested parties to ensure that proposed legislation is drafted so as to be workable and accomplish its public interest goals. The plaintiffs also claim that the chairman, in working with Thayer, violated the open meeting law, G. L. c. 30A, §§ 18 - 25, and a provision of the State ethics laws, G. L. c. 268A, § 23(b )(3 ). But each of those statutes sets forth procedures for invalidating official action if tainted by adjudicated violations. See G. L. c. 30A, § 23(c )(3 ), (f ) ; G. L. c. 268A, §§ 9(a ), 15(a ), 21(a ). The plaintiffs did not invoke those procedures here.
Second, we reject, as did the motion judge, the plaintiffs' argument that there was insufficient public process regarding the amendment for it to be viewed as well considered. The amendment began as a citizens' petition that was the subject of three public hearings before the planning board, was substantially redrafted with the involvement of the board's chairman, and was discussed at a fourth public hearing, at which the planning board recommended its approval. The issue was discussed at two public meetings of the town's warrant committee, which recommended adoption of the redraft, and the town meeting did so by a two-thirds vote.
Finally, the plaintiffs, pointing to a prior zoning amendment enacted after Lydon that, they assert, allowed only the particular landowner involved in that case to continue operating a landscaping business, argue that the amendment at issue here is further evidence of an improperly ad hoc, piecemeal approach to zoning. Their argument, raised for the first time in the their reply brief, need not be considered. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985).
In any event, the validity of that prior amendment is not before us. As to the amendment at issue here, indulging every reasonable presumption in its favor, see Andrews, 68 Mass. App. Ct. at 369, the town could reasonably have adopted it, with its facially more general applicability, only after experience demonstrated that that the prior amendment, to the extent tailored to the property at issue in Lydon, addressed only one instance of what was a wider problem.
2. The special permit provision. The plaintiffs argue that the amendment violates G. L. c. 40A, § 9, which authorizes zoning by-laws to allow uses by special permit. "Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law...." G. L. c. 40A, § 9. The plaintiffs argue that the amendment violates this latter provision because the use it permits is not in harmony with the general purpose and intent of the by-law.
Passing over the question whether this provision provides a basis for facial invalidation of a by-law, the plaintiffs' argument ignores that the amendment itself requires the planning board, before issuing any special permit, to find that "the landscaping business use will not cause any substantial detriment to the neighborhood or to the intent of the [by-law]." Section III.N.8. Similarly, section IX.C of the by-law requires that a special permit applicant must show "to the satisfaction of the [b]oard involved" that "the desired relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of this bylaw." These requirements ensure that special permits issued under the amendment are "in harmony with the general purpose and intent of the ordinance or by-law." G. L. c. 40A, § 9.
The provision by its terms appears to regulate only the issuance of particular special permits, not the content of a by-law that, as a general matter, authorizes the issuance of such permits. The plaintiffs have not cited, nor have we found, any case in which the provision has been used to invalidate a special-permitting section of a zoning by-law itself.
The validity of any special permit that has been or may be issued to Thayer is not before us.
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3. Judicial estoppel. Finally, the plaintiffs assert that judicial estoppel bars the municipal defendants from arguing that the amendment is in the public interest. The plaintiffs point to the municipal defendants' argument in a prior Superior Court action that the public interest favored enforcement of a cease and desist order (based on the ZBA's 2013 decision) requiring Thayer to stop using the locus as a landscaping business. We disagree.
For judicial estoppel to apply, the party's position must be "directly inconsistent" with or "mutually exclusive" of the position it took in the earlier proceeding. Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640-641 (2005). Here, the Land Court judge ruled that the municipal defendants had not asserted directly inconsistent positions, because, in both cases, the town was defending its by-law in its then-existing form.
"[T]here may arise certain instances where the party's prior position was asserted in good faith, and where the circumstances provide a legitimate reason—other than sheer tactical gain—for the subsequent change in that party's position." Id. at 642. Here, if there was any change of position, it was based upon the legitimate circumstance that in between the first litigation and the second, the law at issue had changed. The "public interest" is not an immutable concept; it depends, at least in substantial part, on elected representatives' legislative enactments as they may be amended from time to time to adapt to changing circumstances. There is nothing inconsistent about the town defending its cease-and-desist order against Thayer based on the public interest as reflected in the then-existing zoning by-law, and then later defending the amendment to the by-law once the town meeting had determined that such an amendment was in the public interest. This is particularly so where the adverse impacts that the town previously argued were caused by Thayer's then-existing use (including traffic, noise, dust, odors, and vibrations) are now subject to the town's control under the amendment's special permitting process.
"Application of the equitable principle of judicial estoppel to a particular case is a matter of discretion." Id. at 640. Reviewing the judge's decision not to apply judicial estoppel here, we see no abuse of discretion.
Conclusion. The appeal from the September 1, 2015, judgment is dismissed as moot. The April 5, 2017, judgment is affirmed.
So ordered.
Dismissed in part; affirmed in part.