Beale v. Planning Bd. of Rockland

• Decision Date: 07 November 1996
• Citation: 423 Mass. 690,671 N.E.2d 1233
• Parties: Raymond E. BEALE, Jr., trustee, 1 & another 2 v. PLANNING BOARD OF ROCKLAND & another. 3
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1233

671 N.E.2d 1233

423 Mass. 690

Raymond E. BEALE, Jr., trustee, ¹ & another² v. PLANNING BOARD OF ROCKLAND & another. ³

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 4, 1996.

Decided Nov. 7, 1996.

Michael C. Gilleran, Boston (Henry S. Levin, Quincy, with him) for plaintiffs.

June S. Riddle, Lunenburg, for defendants.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

GREANEY, Justice.

We granted the plaintiffs' application for direct appellate review on this appeal from a judgment of the Land Court. The judgment (entered after a de novo evidentiary hearing, see G.L. c. 41, § 81BB [1994 ed.] ), upheld a decision of the planning board of Rockland (planning board) denying an application for approval of a definitive subdivision plan that would extend an existing road in the town of Rockland into the town of Hingham to provide access for a proposed retail shopping center there. The land that is the subject of the plan straddles the town line dividing Hingham and Rockland. Almost the entire parcel, and all of the portion that is proposed to be used for the retail shopping center, lies in Hingham. The planning board concluded that, as to the land in Rockland, retail shopping center use would violate the use requirements of the applicable zoning district under the Rockland zoning by-law. The judge decided that the planning board had acted within its authority in disapproving the application on this basis. We agree with the judge and affirm the judgment.

The following facts are taken from the judge's decision with the addition of a few uncontested facts from the record. The plaintiff at the trial, Raymond E. Beale, Jr. (Beale), ⁴ owns a fifty-six acre parcel of undeveloped land. Most of the land lies in Hingham; a small portion of the land, at its southern corner, lies in Rockland. The Rockland portion includes a strip about 400 feet long, which runs roughly eastward from the border between Hingham and Rockland to an existing cul-de-sac at the end of Commerce Road. Commerce Road, a private way, is part of an approved subdivision and connects at its eastern end with Hingham Street, a public way.

Beale hopes to construct a 457,000 square foot retail shopping center on the portion of the land in Hingham; that portion lies in an "Industrial Park" zoning district. Beale asserts that the Hingham zoning by-law allows the shopping center use planned for that parcel. The 400-foot strip of land in Rockland would be used for an access road connecting the Hingham land to Commerce Road in Rockland, thereby providing access to the retail shopping center from Hingham Street in Rockland. The Rockland strip is in an "Industrial Park I-2" district. The Rockland zoning by-law does not allow retail sales generally in the I-2 district, although "wholesale and retail distribution centers" are permitted, and some retail businesses currently operate in Rockland within that I-2 district.

In the fall of 1991, Beale filed a preliminary subdivision plan with the planning board and the board of health, seeking approval for the extension of Commerce Road along the strip of land in Rockland to the Hingham town line. Both boards disapproved the plan in December, 1991.

Beale thereafter filed a definitive subdivision plan with the two Rockland boards, again seeking approval to extend Commerce Road. This application stated Beale's intention to continue the proposed road through Hingham so as to create a through road called "Commerce Road Extension." This through road would start at Commerce Road in Rockland and run westward across the strip of land in Rockland for which subdivision approval was sought to the town border of Hingham and Rockland. From there, it would continue in Hingham through the southern part of the land and then run northwesterly across land owned by South Shore Industrial Park Corporation to a cul-de-sac at the easterly end of Commerce Road in Hingham, a road which is connected (by way of Industrial Park Road) to Derby Street, a public way. Beale's application invited the planning board to make its approval of the definitive plan conditional upon the Hingham planning board's approval of the Hingham portion of Commerce Road Extension.

The definitive subdivision plan was rejected by the board of health (on June 30, 1992) and the planning board (on August 13, 1992). The planning board gave five reasons for denying the plan, one of which was that "[t]he proposed use of Commerce Road Extension (a private way) to provide access to a retail shopping center in the Town of Hingham violates the zoning regulations for Industrial-2 districts under [the applicable provision] of the Rockland Zoning By-Law wherein retail uses are prohibited."

Over a year later (in September, 1993), the Hingham planning board approved, with conditions, the Hingham portion of Commerce Road Extension. One of the conditions was that no occupancy permit would be issued in Hingham until the road was connected, by way of Commerce Road in Rockland, to Hingham Street in Rockland.

Beale appealed from the decision of the Rockland planning board to the Land Court. After trial, the judge rejected four of the reasons given by the planning board for its action. (These reasons are no longer in issue.) The judge decided, however, that the planning board acted properly when it disapproved the subdivision plan for the access parcel in Rockland because the proposed use of that land would violate the use requirements of the Rockland zoning by-law. In reaching this conclusion, the judge determined that: (1) retail use of the type proposed for the Hingham land was prohibited in the "Industrial Park I-2" zone in Rockland, within which the access land was located; (2) access for a prohibited use is also prohibited, so that use of the parcel in Rockland for access to a retail shopping center in Hingham would violate the use requirements of the Rockland zoning by-law; and (3) the board had the authority, under the subdivision control law, G.L. c. 41, §§ 81K-81GG (1994 ed.), to disapprove Beale's plan because of this zoning violation, even in the absence of any express provision in the planning board's subdivision rules and regulations requiring compliance with the zoning by-law. We agree with the judge's determinations.

1. The judge correctly interpreted the Rockland zoning by-law as prohibiting retail uses in the I-2 zone, based upon the absence of such uses from the list of permitted uses in the zone and the express allowance of such uses in Rockland's business zoning districts. As the judge noted, large retail outlets, such as those identified by Beale as potential tenants for the shopping center, ⁵ would not meet the definition of a "retail distribution center," which is an allowable use in the I-2 district. ⁶

2. The judge also correctly ruled that, if the Rockland land is used for the purpose intended here, that is to provide access to a retail site of the type planned by Beale, the land itself would be in retail use, in violation of the use requirements of the Rockland zoning by-law. Use of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that would themselves be barred if they had been located in the first zoning district. In such a situation, the access is considered to be in the same use as the parcel to which the access leads. See Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375, 381, 221 N.E.2d 396 (1966) (access road to apartment house not permitted in single-residence district); Harrison v. Building Inspector of Braintree, 350 Mass. 559, 561, 215 N.E.2d 773 (1966) (access roadway to industrial district violated zoning requirements governing surrounding residential district); Brookline v. Co-Ray Realty Co., 326 Mass. 206, 211 -212, 93 N.E.2d 581 (1950) (lot in single-family zone may not be used for walkway to apartment building on another lot); Building Inspector of Dennis v. Harney, 2 Mass.App.Ct. 584, 585-586, 317 N.E.2d 81 (1974) (roadway to commercially zoned property is not a permitted use in a residential zone).

Beale argues that a distinction should be made between a case involving an access way across residential land, and the present case, in which an access road to serve retail uses would run across land in an industrial zone. Such a distinction is not warranted because the same rule governs both cases. See Dupont v. Dracut, 41 Mass.App.Ct. 293, 295-296, 670 N.E.2d 183 (1996) (town may prohibit use of part of lot located in a business zone for access to, and parking for, housing project on rest of lot that is zoned for multifamily use in neighboring community). This conclusion stems from the basic principle that "ordinarily, a municipality ought to be accorded the right to carry out the policies underlying its zoning ordinance or by-law with respect to the actual uses made of land within its borders." Burlington Sand & Gravel, Inc. v. Harvard, 26 Mass.App.Ct. 436, 439, 528 N.E.2d 889 (1988).

3. Having decided that the proposed use of the land in Rockland would violate the use requirements of the Rockland zoning by-law, the judge concluded that the planning board had the authority to disapprove the plan on the basis of the zoning violation, even though the planning board's rules and regulations did not contain a specific provision requiring compliance with the zoning by-law. Beale challenges this conclusion, arguing that the language of G.L. c. 41, § 81U (1994 ed.), allows a planning board to disapprove a plan only when that plan fails to comply with the board's own rules and regulations or with the recommendations of the health board or officer. ⁷ Section 81U, however, must be read in conjunction with other provisions of the subdivision control law, most notably § 81M, which states the purposes of the law. Section 81M provides in part that, "the powers of a planning board ... shall be exercised with due...