Hanna v. Town of Framingham, No. 02-P-1330 (Mass. App. 12/10/2003)

• Decision Date: 10 December 2003
• Docket Number: No. 02-P-1330.,02-P-1330.
• Citation: 60 Mass. App. Ct. 420
• Parties: TIMOTHY K. HANNA vs . TOWN OF FRAMINGHAM & another. 1
• Court: Appeals Court of Massachusetts

Page 1

TIMOTHY K. HANNA vs. TOWN OF FRAMINGHAM & another.¹

No. 02-P-1330.

Appeals Court of Massachusetts.

December 10, 2003.

February 11, 2004.

Present: Greenberg, Grasso, & Green, JJ.

Zoning, Appeal, Parties, Person aggrieved, Contract zoning, Spot zoning, Zoning district. Practice, Civil, Standing, Zoning appeal, Parties.

Civil action commenced in the Land Court Department on November 2, 2000.

The case was heard by Karyn F. Scheier, J., on a motion for summary judgment.

Michael A. Laurano for the plaintiff.

Martin R. Healy for Boston Properties, Inc.

Christopher J. Petrini for town of Framingham.

GREEN, J.

Acting on the defendants' joint motion for summary judgment, a judge of the Land Court ordered entry of a judgment declaring valid an amendment to the Framingham zoning map which placed certain land (the locus), owned by the Massachusetts Turnpike Authority (authority) and fronting on Route 9, within a light manufacturing district.² In cross appeals, (i) the plaintiff challenges the map amendment as illegal "contract zoning" and "spot zoning;"³ and (ii) the defendants challenge the plaintiff's standing to bring his complaint under G. L. c. 240, § 14A. We affirm the judgment.

Background. In 1998, the defendant Boston Properties, Inc., entered into an agreement with the authority to develop a portion of the locus for office, retail, and hotel use. At the time of that agreement, the locus was not within any zoning district and was not subject to the provisions of the Framingham zoning by-law.⁴ The area surrounding the locus was zoned for light manufacturing use. A proposed article to amend the zoning map to include the locus within a light manufacturing district was placed before the Framingham town meeting on May 11, 1999, but was referred back to its sponsors without a vote, based on concerns expressed by some members of the town meeting and by the chair of the planning board. Following discussions with various town boards and committees on the subject of traffic mitigation along the Route 9 corridor, and the town's need to preserve open space, Boston Properties executed a development covenant in favor of the town under which it agreed (contingent on passage of an amendment placing the locus in a light manufacturing district) to perform and fund various traffic mitigation measures along Route 9, and to contribute $350,000 to the town to help fund the purchase of open space. The 2000 annual town meeting approved a warrant article amending the zoning map to place the locus in a light manufacturing zone. We describe additional facts below as pertinent to our discussion of the issues.

Standing. Because the plaintiff's standing is an essential prerequisite to judicial review, see Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680, 681 n.2 (2002), we consider the parties' competing claims on that subject first.⁵

General Laws c. 240, § 14A, authorizes

"[t]he owner of a freehold estate in possession in land [to] bring a petition in the land court against a city or town wherein such land is situated . . . for determination of the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A . . . which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land . . . or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement, or development of such land . . . ."

A landowner may bring an action under § 14A for determination of the validity of a zoning enactment regulating land owned by another, if the use of such other land pursuant to the zoning amendment "directly and adversely affects the permitted use of his land." Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct. 989, 990 (1985), citing Harrison v. Braintree, 355 Mass. 651, 654-655 (1969).

The record describes three parcels in which the plaintiff holds an interest. Mindful that G. L. c. 240, § 14A, is to be given a "broad construction," Harrison v. Braintree, supra at 654, we conclude for the reasons below that the record is sufficient to support the plaintiff's standing, at least for purposes of summary judgment, based on his interest in the parcel located at 1832 Worcester Road.⁶

To support his opposition to the defendants' summary judgment motion, the plaintiff submitted an affidavit of a traffic engineer, asserting that the plaintiff's property at 1832 Worcester Road "will be significantly negatively impacted" by development of the locus as proposed by the defendant Boston Properties. Concerns over increased traffic are within the scope of the zoning laws, and accordingly may be used to support standing. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 722 (1996); Nickerson v. Zoning Bd. of Appeals of Raynham, supra at 682 n.3 (2002); Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 376-377 (1988). Unlike an appeal from an administrative zoning decision under G. L. c. 40A, § 17, a plaintiff challenging the validity of a zoning enactment under G. L. c. 240, § 14A, need not demonstrate that he will suffer an injury that is special and different from that experienced by the general community. See Van Renselaar v. Springfield, 58 Mass. App. Ct. 104, 107 (2003).⁷ But see Durand v. IDC Bellingham, Inc., 440 Mass. 45, 61 (2003) (Spina, J., concurring). On the summary judgment record, the plaintiff has presented sufficient evidence to create a triable issue of fact on his claim that he will suffer an adverse effect on his ability to use the property at 1832 Worcester Road as a result of the map amendment.⁸

The defendants also contend that, because the town in 1992 took the 1832 Worcester Road property for unpaid taxes and the plaintiff's title remains unredeemed, the plaintiff is not the "owner of a freehold estate in possession in land" and is consequently without standing under § 14A.

Under G. L. c. 60, § 54, title to land taken for unpaid taxes vests in the town as of the date of the taking, upon the town's filing of an instrument of tax taking in the applicable registry of deeds within sixty days of the date of the taking. Such title is thereafter "held as security for the repayment of said taxes with all intervening costs, terms imposed for redemption and charges, with interest thereon." Ibid.

The town's title under an instrument of tax taking is, however, subject to redemption by any person having an interest in the land, as provided in G. L. c. 60, § 62, at any time prior to entry of a decree of foreclosure. Though the town may enter into possession of the property under such a tax title, and may thereafter collect any rents (net of operating expenses) generated by the property until redemption, see G. L. c. 60, § 53, the town in the present case has not taken possession of the property, and has not obtained a decree under G. L. c. 60, §§ 65-69, foreclosing the plaintiff's right of redemption.

The plaintiff argues that the town's interest under an instrument of tax title is, prior to entry of a decree of foreclosure, analogous to the interest of the holder of a mortgage in Massachusetts.⁹ Cf. Dolliver v. St. Joseph Fire & Marine Ins. Co., 128 Mass. 315, 316 (1880) ("as to all the world except the mortgagee, a mortgagor is the owner of the mortgaged lands, at least till the mortgagee has entered for possession"). The analogy is not perfect. For example, unlike a mortgagee a town becomes liable upon acquisition of a tax title for certain expenses, such as condominium common area charges, pursuant to G. L. c. 60, § 77. See Milford v. Boyd, 434 Mass. 754, 759 (2001). Furthermore, the town's lien securing payment of real estate taxes arises automatically, and thus exists prior to (and independent of) the town's acquisition of its record tax title under the instrument of taking. See G. L. c. 60, § 37. However, prior to foreclosure of the right of redemption, taxes continue to accrue against the assessed owner. See G. L. c. 60, § 61. The town generally is exempt from liability for injury to third parties even if it takes possession of land held under a tax title. See G. L. c. 60, § 53, para. 3.¹⁰ Moreover, "[t]he purpose of the [tax title and foreclosure] provisions [of G. L. c. 60] is not to provide municipalities with a method of acquiring property for municipal purposes . . . the only legitimate interest of a town in seeking to foreclose rights of redemption is the collection of the taxes due on the property, together with other costs and interest." Lynnfield v. Owners Unknown, 397 Mass. 470, 474 (1986). On balance, we conclude that the plaintiff, holding an unforeclosed right of redemption in the fee interest in land taken for unpaid taxes, and still in possession of such land, qualifies as an "owner of a freehold estate in possession in land" within the meaning of G. L. c. 240, § 14A.

Validity of map amendment. The parties' briefs, filed before issuance of Durand v. IDC Bellingham, supra, devote considerable discussion to the question whether the provisions of the development covenant constitute "extraneous consideration" given to induce the vote of the 2000 town meeting adopting the map amendment. Durand renders that discussion largely inapposite; instead, we consider whether the map amendment "violates State law or constitutional provisions, is arbitrary or unreasonable, or is substantially unrelated to the public health, safety, or general welfare." Id. at 57.¹¹ In so doing, we afford considerable deference to the determination by the legislative body (in this case the town meeting): "[i]f the reasonableness of a zoning bylaw is even `fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained.'" Id. at 51, quoting from Crall v. Leominster, 362 Mass. 95, 101 (1972). We undertake no inquiry into the possible motives of the legislative body....