Opinion
14-P-890
01-22-2015
JAMES R. KINGSBURY v. PLANNING BOARD OF SOUTHWICK & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Plaintiff James R. Kingsbury appeals from summary judgment in the Housing Court in favor of the defendants, affirming the decision of the planning board of the town of Southwick (town) to issue a special permit and site plan approval for Maxi-Drug, Inc., doing business as Rite Aid (Rite Aid), to remove an existing building and construct in its place a new Rite Aid pharmacy and drug store with a drive-through window. The plaintiff's principal contention is that the planning board failed to take into account § 185-17D(4) of the town's zoning by-laws requiring "a dense planting at least 30 feet in width" when a structure is proposed to be built in a business restricted zone that abuts a residence zone. Essentially for the reasons set forth in the Housing Court judge's ruling and order, we affirm.
Prior to submitting its request for a special permit and site plan approval to the planning board, Rite Aid properly petitioned the zoning board of appeals (ZBA) of the town for a variance of the setback provisions of the zoning by-laws. Relevant to this appeal, Rite Aid requested a twenty-six-foot variance of the fifty-foot rear setback, where the plaintiff's property abuts the Rite Aid site. The ZBA allowed the requested variance, finding that the variance would cause "negligible adverse effect to the adjoining properties," particularly because "[t]here is a sharp drop-off down to a mostly wooded area, and not near to any buildings on the adjacent lots." The plaintiff did not appeal from or otherwise challenge the ZBA's decision.
When the special permit and site plan approval subsequently came before the planning board, the application disclosed, and the planning board duly noted, that Rite Aid had received setback variances from the ZBA. Clearly the ZBA, not the planning board, had the sole authority to grant the setback variances, and the planning board lacked the power to reject or to overrule the ZBA's final decision in that regard. The powers and the responsibilities of the ZBA and the planning board are distinct, each operating under its own statutory and by-law provisions. See Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167, 170-171 (1990).
The Housing Court judge concluded that the ZBA's allowance of the setback variance, effectively allowing the southeast corner of the proposed structure to be built only twenty-four feet from the property line, implicitly granted a variance of the zoning by-law subsection calling for "a dense planting at least 30 feet in width." We agree. The ZBA may excuse compliance with a by-law provision by means of a variance. G. L. c. 40A, § 10. Here, in considering whether to grant the setback variance (which was not appealed), the ZBA had before it the same site plan that was later presented to the planning board. The ZBA may be presumed to know the content of its by-laws, including the thirty-foot dense planting requirement. Its action on the setback must therefore be understood as excusing compliance with the thirty-foot planting requirement; otherwise, granting the setback variance would have been meaningless. While it may have been preferable for Rite Aid to have sought and obtained a specific variance from the thirty-foot planting requirement in addition to the setback variance, it is implicit in the grant of the latter that Rite Aid was also relieved of the former.
As the plaintiff correctly notes, among other factors, the planning board was required to consider the thirty-foot dense planting provision -- as varied by the ZBA -- before reaching its decision. See Cummings v. City Council of Gloucester, 28 Mass. App. Ct. 345, 351-352 (1990). See also Seguin v. Planning Bd. of Upton, 33 Mass. App. Ct. 374, 375-377 (1992) (zoning board of appeal's grant of frontage variance did not allow applicant to circumvent approval procedure under subdivision control law, but would be considered if planning board unreasonably withheld approval). However, it is plain from the record that the planning board did consider this provision. In addition to noting the ZBA's allowance of the setback variances, in approving the site plan, the planning board imposed the following condition: "The Landscaping buffer at the rear of the building shall be six feet (6') high Arbovitaes and the proposed six foot stockade fence installed as per the plan." The planning board, aware of the thirty-foot dense planting subsection of the by-laws, knowing that Rite Aid's plan did not conform, and also knowing that the ZBA had granted a variance, approved the site plan with an alternative buffer made of plantings and fences. The planning board's findings and conditions in this regard "do double duty as findings that the special permit applied for might be exercised in harmony with the general purpose and intent of the [site plan] by-law." Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 621 (1986).
Judgment affirmed.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 22, 2015.