Durand v. IDC BELLINGHAM, LLC.
| Decision Date | 07 April 2003 |
| Parties | MAURICE DURAND & others vs. IDC BELLINGHAM, LLC, & others (and a companion case). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. W.P. Colin Smith, Jr. (Bartholomew P. Molloy with him) for the IDC Bellingham, LLC, & another
Kenneth L. Kimmell (Elizabeth M. Heller with him) for the plaintiffs.
The following submitted briefs for amici curiae:
Thomas J. Urbelis for Massachusetts City Solicitors and Town Counsel Association.
Martin R. Healy, Adam N. Weisenberg, Gordon H. Piper, R. Jeffrey Lyman, & Michael K. Murray for Massachusetts Chapter of the National Association of Industrial and Office Properties.
Carl K. King for Massachusetts Chapter of the American Planning Association.
On May 28, 1997, residents attending the town of Bellingham's (town's) open town meeting voted to rezone a parcel of land located in the town. Three and one-half years later, several residents living near the parcel brought suit challenging the rezoning. The question before the court is whether the town meeting vote was invalid because the prospective owner of the parcel, IDC Bellingham, LLC (IDC), had offered to give the town $8 million if the rezoning was approved and a power plant was built and operated on the site.
1. Background. The essential facts of this case are undisputed. In 1993, the town began to examine ways to increase its property tax base. An economic development task force was appointed by the town's board of selectmen (board) to study the issue. The task force prepared a report recommending that development of industrial land in the town be a priority. The report identified a parcel on the corner of Depot Street and Box Pond Road (locus), which abutted land that was already zoned for industrial use, as a candidate for rezoning from agricultural and suburban use to industrial use. Subsequently, at the town's May, 1995, town meeting, a zoning article proposing the rezoning of the locus and an adjacent parcel for industrial use fell eight votes short of the required two-thirds majority.
In 1997, IDC, which owned a power plant in the town, began discussions with town officials about the possibility of rezoning the locus so that a second plant might ultimately be built on it. These discussions included the subject of what public benefits and financial inducements IDC might offer the town with regard to the proposed plant. The town administrator told IDC officials that the town was facing an $8 million shortfall in its plans to construct a much needed new high school. Shortly thereafter, the president of IDC publicly announced that IDC would make an $8 million gift to the town if IDC (1) decided to build the plant; (2) obtained the financing and permits necessary to build the plant; and (3) operated the plant successfully for one year. The offer was made to generate support for the plant and became common knowledge in the town.
While the genesis of the offer was the need for a new high school, IDC made it clear that the town could use the money for any municipal purpose. The town's high school building committee, the town's finance committee, the town's master plan steering committee, and certain town officials voiced strong support for the plant and the zoning change required for its construction on the locus. Some committee members engaged in a campaign to get voters to the town meeting at which the rezoning was to be considered.
On May 28, 1997, the town held its open town meeting and a zoning article calling for the rezoning of the locus was introduced.4 IDC made a presentation of its proposed use of the locus for a second power plant and reiterated its offer of an $8 million gift to the town if the plant was built and became operational. The planning board and finance committee both recommended passage of the zoning article. There was some discussion of the zoning aspects of the proposal, as well as discussion regarding the offered gift. Residents for and against the proposal to build a plant on the site spoke, and IDC responded to their comments. The zoning article passed by more than the necessary two-thirds vote of the town meeting.
Between May, 1997, and January, 2001, IDC spent approximately $7 million to develop the locus for a power plant.5 At some point in the summer of 1998, the board learned that IDC was proposing to increase the size of the plant beyond what it had presented to the town meeting in 1997. Consequently, the board wrote a letter to the energy facilities siting board withdrawing its support for the plant.6 Shortly thereafter, representatives of IDC and the board met to negotiate a compromise. The outcome of those negotiations was an agreement by IDC to reduce the size of the plant and, in April, 1999, the execution of an "Agreement for Water/Wastewater Services" between IDC and the town. The agreement provided in part that:
IDC submitted a request for five special permits to the town's zoning board of appeals on May 5, 2000, and the special permits were granted on January 2, 2001. On January 23, 2001, the plaintiffs, eight landowners located near the locus, filed suit in the Land Court against IDC, the town, the town zoning board of appeals, and the owner of the property. The plaintiffs' amended complaints make three claims. Count I contends that the grant of the five special permits was arbitrary, capricious, lacking in substantial evidence, and ultra vires. (This count was not acted on in the trial court and is not before us.) Counts II and III seek declaratory judgment, under different statutory provisions,7 that the rezoning of the locus on May 28, 1997, was void because it constituted illegal "contract" or "spot" zoning and because the text of the enacted zoning amendment differed substantially from the text of the proposed amendment. The defendants filed an answer alleging several affirmative defenses, including statute of limitations and laches.
The defendants moved for summary judgment on counts II and III of the amended complaints, arguing that the zoning amendment constituted neither "contract" nor "spot" zoning and reasserting their affirmative defense of laches.8 Before the Land Court, the plaintiffs abandoned their claim that the amendment was void because it differed substantially from the proposed amendment and conceded that the zoning amendment did not constitute spot zoning, which is prohibited by G. L. c. 40A, § 4.9 The judge denied summary judgment to the defendants and, on his own motion, granted summary judgment to the plaintiffs.
In his decision, the judge discussed whether "contract zoning" existed as a "separate ground for invalidating a zoning ordinance." Assuming that it did, the judge found that "contract zoning" had not occurred here, at least within the meaning he ascribed to that term. He then found that "there would be little doubt that the 1997 rezoning was valid" if the $8 million gift offer had not been made, and proceeded to discuss its implications. He viewed the offer of the gift as an "extraneous consideration," because it was not defended as being in mitigation of the impacts of the project, and therefore concluded that it was "offensive to public policy." He ultimately concluded that the fact that the offer was made was sufficient, without the necessity of finding that voting town meeting members were influenced by it, to nullify the rezoning vote, citing Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 434 (1962) (). The defendants appealed and this court transferred the cases on its own motion. Because we conclude that the voluntary offer of public benefits beyond what might be necessary to mitigate the development of a parcel of land does not, standing alone, invalidate a legislative act of the town meeting, we reverse.10
2. Discussion. Prior to the passage of art. 89 of the Amendments to the Massachusetts Constitution (the "Home Rule Amendment") in 1966, the power of a municipality to enact or amend zoning bylaws was a power derived exclusively from the "supreme" power of the Legislature in zoning matters, and a municipality had only such authority as the Legislature saw fit to delegate specifically to it. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 356-357 (1973). The Home Rule Amendment granted cities and towns "independent municipal powers which they did not previously inherently possess" to adopt, amend, or repeal local ordinances or bylaws "for the protection of the public health, safety and general welfare." Id. at 358, 359. The zoning power was one of the "independent municipal powers" granted to cities and towns by the Home Rule Amendment, enabling them to enact zoning ordinances or bylaws as an exercise of their "independent police powers" to control "land usages in an orderly, efficient, and safe manner to promote the public welfare," id. at 359, as long as their enactments were "not inconsistent with the Constitution or laws enacted by the Legislature," id. at 358.
The enactment of a zoning bylaw by the voters at town meeting is not only the exercise of an independent police power; it is also a legislative act, see Sylvania Elec. Prods. Inc. v. Newton, supra at 433, quoting Church v. Islip, 8 N.Y.2d 254, 259 (1960), carrying a strong presumption of validity. It will not normally be undone unless the plaintiff can demonstrate "by a preponderance of the evidence that the zoning regulation is...
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