National Amusements, Inc. v. City of Boston

• Decision Date: 28 September 1990
• Citation: 29 Mass.App.Ct. 305,560 N.E.2d 138
• Parties: NATIONAL AMUSEMENTS, INC. v. CITY OF BOSTON. 1
• Court: Appeals Court of Massachusetts

Page 138

560 N.E.2d 138

29 Mass.App.Ct. 305

NATIONAL AMUSEMENTS, INC. v. CITY OF BOSTON. ¹

Appeals Court of Massachusetts,

Suffolk.

Argued June 20, 1990.

Decided Sept. 28, 1990.

John R. Devereaux, Asst. Corp. Counsel (Mary Ellen Nolan with him) for defendant.

Robert M. Bonin, (Thaddeus P. Jankowski, with him) for plaintiff.

Saul A. Schapiro, Edward F. Kelly & Margaret M. Wittig, for Boston Redevelopment Authority, amicus curiae, submitted a brief.

Before KASS, SMITH and IRELAND, JJ.

KASS, Justice.

Although all rational presumptions favor the validity of an amendment by a municipality of its zoning code, we decide that the amendment of the Boston Zoning Code presented for review arbitrarily singled out the land of the plaintiff National Amusements, Inc. ("National"), for disparate treatment from similar land in the same zoning area. Accordingly, we affirm the decision of the Land Court judge which came to the same conclusion and adjudged the zoning amendment invalid. National brought its complaint in the Land Court under G.L. c. 185, § 1(j 1/2 ), and G.L. c. 240, § 14A.

The judge made extensive findings of fact, for which there is support in the record.

The Locus

National's property consisted of a vacant 13.8 acre tract lying westerly of Veterans of Foreign Wars Parkway ("VFW Parkway") in the West Roxbury section of Boston. In former years, National had used the site for an outdoor movie theater. At the time of the rezoning under review, the locus was zoned for general business (zoning classification B-1), except for a strip around 125 feet deep along VFW Parkway, which was zoned for local business (zoning classification L-.5).

On the easterly boundary of the locus is VFW Parkway and thereafter the B-1 district extends for a considerable distance on the other (i.e., easterly) side of VFW Parkway. In that section of B-1 zone there are a small shopping center (dominated by a Heartland supermarket), office buildings, an apartment condominium, a gas station, a furniture store, an electric power transmission facility (northerly of the railroad tracks), and a nursing home.

Northerly, the locus is bounded by the road bed of the Needham branch of the Massachusetts Bay Transportation Authority commuter railroad, and north of that road bed, in an S-.3 (single residence) district, are the West Roxbury High School and several cemeteries. Northwesterly is a closed city dump site located in an I-2 zoning district (general manufacturing).

Southwesterly of the locus there lies an M-1 district (light manufacturing) in which there are a large United Liquors warehouse, a Yellow Freight Lines truck terminal, a Boston Gas warehouse distribution center, and an industrial facility designated in the record simply as Sybron.

South of the locus, in M-1 and L-.5 zones, there are located a construction company, a manufacturing company, offices for Pizzeria Uno and Look Corporation, a discount liquor store, a Chinese restaurant, an International House of Pancakes, and a garden center. Interspersed within the area are six houses, largely used for commercial purposes. Southeasterly, on the other side of VFW Parkway is the West Roxbury Veterans Administration Hospital. On so much of Gardner Street as runs east of VFW Parkway there are houses used as residences.

It will not be lost on the reader that the locus is surrounded--and for some distances--by active commercial use.

The Zoning History

Under Boston's first comprehensive zoning code, enacted by St.1924, c. 488, the locus was zoned for industrial use. Sometime prior to 1964--the record is not specific--the zoning classification pertaining to the locus changed to general business. That use classification was perpetuated in a new zoning code adopted pursuant to St.1956, c. 665. As previously noted, there was a strip of local business zone parallel to VFW Parkway.

So matters stood when in January, 1986, National began the process of applying for a building permit or permits to build a shopping center on the locus. The shopping center proposal contemplated construction of a 60,000 square-foot Super Stop & Shop, a 55,000 square-foot Channel Home Center, 31,000 square feet of satellite stores, and, of course, parking areas, loading docks, landscaping, and so forth. That use was permissible as matter of right under the B-1 and L-.5 zoning classifications. Reaction by the West Roxbury Neighborhood Council ("WRNC") was adverse, not least of all because the shopping center would compete with indigenous retail stores in West Roxbury. The Gardner Street Neighborhood Association, however, which represented residents nearest to the locus, lined up in favor of the shopping center proposal.

By letter dated April 16, 1986, the mayor of Boston wrote to the director of the Boston Redevelopment Authority ("BRA"), which serves as the planning arm of Boston, ² about the WRNC's concerns and instructed the director to take the most appropriate and immediate action "necessary to protect the residential and local business district from unwanted large scale commercial development." On May 2, 1986, BRA and WRNC applied to the zoning commission of Boston for a "map change" which would change the zoning classification to R-.5 (two-family residential). An immediate consequence was that the inspectional services department of Boston (ISD) declined to consider National's applications and to issue any permits. Much of this is recounted in some detail in National Amusements, Inc. v. Commissioner of the Inspectional Serv. Dept. of Boston, 26 Mass.App.Ct. 80, 523 N.E.2d 789 (1988).

Twice, on June 2, 1986, and June 25, 1986, the zoning commission rejected the proposal to "down zone" to R-.5. ³ On February 6, 1987, the zoning commission enacted an amendment which changed that part of the locus which had been in a B-1 district to an R-.8 district. The R-.8 classification permitted multi-family dwellings and authorized a higher floor area ratio than that in R-.5 zones. ⁴

The Statutory Framework

Boston has its own special zoning enabling act, St.1956, c. 665, which establishes a zoning commission authorized to adopt a zoning code. See Emerson College v. Boston, 393 Mass. 303, 306, 471 N.E.2d 336 (1984). See also Banquer Realty Co. v. Acting Bldg. Commr. of Boston, 389 Mass. 565, 570-571, 451 N.E.2d 422 (1983). Although unique in procedural and substantive detail, there is much parallelism between the Boston Enabling Act and G.L. c. 40A, the State enabling act, and, in considering the validity of zoning amendments, special permits (called conditional use permits under the Boston zoning act), and variances in Boston cases, the courts have looked to principles established in cases decided under G.L. c. 40A. See, e.g., Co-Ray Realty Co. v. Board of Zoning Adjustment of Boston, 328 Mass. 103, 109, 101 N.E.2d 888 (1951); McNeely v. Board of Appeal of Boston, 358 Mass. 94, 101, 261 N.E.2d 336 (1970); Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass.App.Ct. 274, 275-277, 473 N.E.2d 716 (1985).

Whether an amendment to the Boston Zoning Code is valid rests, therefore, on familiar principles which pertain generally in the case of zoning by-laws or ordinances. There must be a showing of some substantial relation between the zoning code amendment and the general objectives of the enabling act. Caires v. Building Commr. of Hingham, 323 Mass. 589, 593-594, 83 N.E.2d 550 (1949). Lamarre v. Commissioner of Pub. Works of Fall River, 324 Mass. 542, 545, 87 N.E.2d 211 (1949). Schertzer v. Somerville, 345 Mass. 747, 750-751, 189 N.E.2d 555 (1963). Turnpike Realty Co. v. Dedham, 362 Mass. 221, 228, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973). Paramount among those objectives is the promotion of the public welfare. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228, 202 N.E.2d 777 (1964). Every presumption, as we noted at the outset of the opinion, is to be made in favor of the zoning amendment. Caires v. Building Commr. of Hingham, supra 323 Mass. at 595, 597, 83 N.E.2d 550. Schertzer v. Somerville, supra 345 Mass. at 751, 189 N.E.2d 555. Turnpike Realty Co. v. Dedham, supra 362 Mass. at 238, 284 N.E.2d 891. If the reasonableness of a zoning regulation is fairly debatable, the judgment of the local legislative body (here the zoning commission of Boston) should be sustained and the reviewing court should not substitute its own judgment. Caires v. Building Commr. of Hingham, supra 323 Mass. at 594-595, 83 N.E.2d 550. Aronson v. Sharon, 346 Mass. 598, 602, 195 N.E.2d 341 (1964). Lanner v. Board of Appeal of Tewksbury, supra 348 Mass. at 228, 202 N.E.2d 777. Addison-Wesley Pub. Co. v. Reading, 354 Mass. 181, 185, 236 N.E.2d 188 (1968). Crall v. Leominster, 362 Mass. 95, 101, 284 N.E.2d 610 (1972). MacNeil v. Avon, 386 Mass. 339, 341, 435 N.E.2d 1043 (1982). Marshall v. Topsfield, 13 Mass.App.Ct. 425, 428-429, 433 N.E.2d 1244 (1982). Nevertheless, a zoning ordinance or by-law will be held invalid if it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals or welfare. Caires v. Building Commr. of Hingham, 323 Mass. at 593, 83 N.E.2d 550. Schertzer v. Somerville, 345 Mass. at 751, 189 N.E.2d 555. Canteen Corp. v. Pittsfield, 4 Mass.App.Ct. 289, 292-294, 346 N.E.2d 732 (1976). Despite the heavy momentum in favor of affirmation of local zoning action, the applicable principles are of judicial deference and restraint, not abdication. It is with that approach that we turn to the problem at hand.

Discussion

What is striking about the record is the absence of analysis of land use planning considerations by municipal authority before the decision to change the zoning was taken. Among the considerations to be taken into account are the physical characteristics of the land, ⁵ its location, size, and the nature of adjoining uses. Barney & Carey Co. v. Milton, 324 Mass. 440, 449, 87 N.E.2d 9 (1949). There were, before the...