Rando v. Town of North Attleborough

• Decision Date: 16 April 1998
• Docket Number: No. 96-P-660,96-P-660
• Citation: 692 N.E.2d 544,44 Mass.App.Ct. 603
• Parties: Anthony RANDO & another 1 v. TOWN OF NORTH ATTLEBOROUGH; Alfred Carpionato, intervener.
• Court: Appeals Court of Massachusetts

Page 544

692 N.E.2d 544

44 Mass.App.Ct. 603

Anthony RANDO & another ¹ v. TOWN OF NORTH ATTLEBOROUGH; Alfred Carpionato, intervener.

No. 96-P-660.

Appeals Court of Massachusetts,

Suffolk.

Argued Oct. 9, 1997.

Decided April 16, 1998.

Robert S. Sinsheimer, Boston, for plaintiffs.

Daniel R. Seigenberg, Walpole, for intervener.

Robert C. Bliss, North Attleboro, for Town of North Attleborough, submitted a brief.

Before PERRETTA, DREBEN and PORADA, JJ.

PERRETTA, Judge.

Article 51 of the town meeting warrant, an amendment to the zoning by-law, was enacted by the defendant town of North Attleborough (town) after approval by the required two-thirds vote at the representative town meeting held October 23, 1993. The amendment changed approximately thirty-seven acres of land from a residential to a commercial zoning district. It was approved by the Attorney General, and notice of that approval was posted by the town clerk conformably with G.L. c. 40, § 32. See G.L. c. 40A, § 5. The plaintiffs then brought this action in the Land Court pursuant to G.L. c. 40A, § 4, and G.L. c. 231A, § 1. The trial judge found that the adoption of the amendment was a valid exercise of local zoning power and dismissed the plaintiffs' complaint. As below, the plaintiffs' principal arguments on appeal are that the amendment constitutes "spot" or "contract" zoning in violation of the Massachusetts Constitution and G.L. c. 40A, and that the town failed to follow its own "master plan" established pursuant to G.L. c. 41, § 81D. We affirm the judgment.

1. The facts. We relate the facts as found by the trial judge. ² The plaintiffs reside at 31 Newport Avenue, Attleboro. Their property contains about eleven acres, all situated in Attleboro, and abuts the line dividing North Attleborough and Attleboro. Alfred Carpionato, the defendant-intervener, is a developer who owns approximately eighty-two contiguous acres of land in North Attleborough. This land abuts the Attleboro line as well as part of the plaintiffs' property.

On August 13, 1993, Carpionato, acting pursuant to G.L. c. 40A, § 5, filed a warrant article with the North Attleborough selectmen seeking to include on the October town meeting agenda a rezoning of approximately thirty-seven acres of land (locus) from an R-30 residential district to a C-60 commercial zoning district. ³ The plaintiffs' property does not abut the locus but is adjacent to a parcel of fourteen and one-half acres owned by Carpionato that will remain in the R-30 district. The locus is situated on the easterly side of Route 1, contiguous to land zoned C-60. A small mall, known as "Fashion Crossing," is located directly north of the locus, and a Walmart store is directly to the south. Also, there is a Bradlees store directly across Route 1 from the locus, and the Emerald Square Mall is diagonally across Route 1 from the locus.

Carpionato plans to develop the locus into a 260,000 square foot shopping mall and multiscreen movie complex. Under the town's 1974 zoning regulations, a 600-foot wide commercial strip fronting both sides of Route 1 was established within the R-30 residential district. Consequently, as rezoned, the locus effectively increases the width of the existing commercial strip along Route 1.

Prior to the October town meeting, Carpionato voluntarily made various proposals to State and town authorities which, as alleged, were intended to mitigate the potential impact of his planned commercial development. Those proposals included the creation of a fourteen and one-half acre "no build" buffer zone in an area to remain zoned as R-30, thereby shielding neighbors to the east, including the plaintiffs, from the C-60 district; provision for traffic improvements; the establishment of a "mitigation fund" for the town in the amount of $260,000; ⁴ the payment in mitigation of an amount between $400,000 and $450,000 to the Massachusetts Highway Department for roadway improvements; and an agreement not to seek a tax abatement on any of the rezoned land for a period of five years. Carpionato signed a "restrictive covenant," a "deed restriction," and a "mitigation covenant" memorializing some of these proposals. These signed documents were to be recorded at the registry of deeds after Article 51 was approved, without amendment, at the town meeting and by the Attorney General.

Additional facts will be related in conjunction with the resolution of the plaintiffs' claims of "spot" and "contract" zoning, each of which required the trial judge to determine "whether there has been shown any substantial relation between the amendment and the furtherance of any of the general objects of the [zoning] enabling act." Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228, 202 N.E.2d 777 (1964). See Johnson v. Edgartown, 425 Mass. 117, 121, 680 N.E.2d 37 (1997).

2. Spot zoning. Spot zoning occurs when there is a "singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot." Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 249, 46 N.E.2d 1016 (1943). See Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 361-362, 294 N.E.2d 393 (1973). Such zoning "constitutes a denial of equal protection under the law guaranteed by the State and Federal Constitutions," id. at 362 n. 15, 294 N.E.2d 393, and violates the "uniformity" requirement of c. 40A, § 4. ⁵ See Canteen Corp. v. Pittsfield, 4 Mass.App.Ct. 289, 293, 346 N.E.2d 732 (1976). See also Bobrowski, Massachusetts Land Use and Planning Law § 3.4.3 (1993).

Although Carpionato clearly benefits from the zoning amendment, the general public also received considerable benefits. See Lanner v. Board of Appeal of Tewksbury, 348 Mass. at 228-229, 202 N.E.2d 777; Raymond v. Building Inspector of Brimfield, 3 Mass.App.Ct. 38, 42 nn. 3 & 4, 322 N.E.2d 197 (1975). The trial judge found that the town previously had rezoned sixty acres of commercial land to residential use and that the present amendment compensates for the loss of those sixty commercial acres. Further, it serves to increase the town's tax base and will likely increase the availability of retail services and employment opportunities. Citing Martin v. Rockland, 1 Mass.App.Ct. 167, 169, 294 N.E.2d 469 (1973), and Sullivan v. Acton, 38 Mass.App.Ct. 113, 117, 645 N.E.2d 700 (1995), for the respective propositions that "commercial development is a proper public goal that is appropriately achieved through zoning" and that it is proper to "concentrat[e] future development in a particular area," the trial judge concluded: "[The] locus, a parcel of vacant land adjacent to a commercial district on a main thoroughfare connecting two major metropolitan areas, can reasonably be viewed as an 'obvious area' for the expansion of an existing commercial zone." We agree. See Cohen v. Lynn, 333 Mass. 699, 704, 132 N.E.2d 664 (1956); Raymond v. Building Inspector of Brimfield, 3 Mass.App.Ct. at 42, 322 N.E.2d 197.

3. Contract zoning. " 'Illegal contract zoning is said to involve the process by which a local government enters into an agreement with a developer whereby the government extracts a performance or promise from the developer in exchange for its agreement to rezone the property'... [and] ... 'is disapproved of largely on the basis of the principle that a municipality may not contract away its police power to regulate on behalf of the general welfare.' " Bobrowski, supra at § 3.4.4, quoting from 1A Rathkopf, Zoning and Planning §§ 29A-25 and 29A-27 (4th ed.1982). The plaintiffs argue that the zoning amendment is invalid because the town illegally bargained away its police powers in exchange for Carpionato's various proposals, as memorialized in the "restrictive covenant," "deed restriction," and "mitigation covenant," all of which were subject to an escrow agreement until the amendment was approved, without change, by the town and the Attorney General.

A remarkably similar argument was presented in Sylvania Elec. Prod. Inc. v. Newton, 344 Mass. 428, 183 N.E.2d 118 (1962), where the prospective developer of a tract of land, Sylvania, sought a zoning amendment changing the classification of the land from residential to limited manufacturing. After discussions with zoning officials, Sylvania voluntarily agreed to impose on the tract various conditions and use restrictions in addition to those already made applicable under the zoning ordinance to land within a limited manufacturing district. Those additional conditions and restrictions were as follows. Sylvania, which held an option to purchase the tract in issue, agreed to cede three acres of the parcel to the Oak Hill Park Association. Those three acres were to be retained in the residential district for a period of thirty years. Sylvania's agreement was to be set out in a deed to be attached to a proposed option agreement by which Sylvania would give the city a thirty-year option to purchase, for $300, a thirty-acre strip of land which was adjacent to land belonging to the Metropolitan District Commission. Sylvania also proposed other restrictions, including creation of a "buffer zone" upon which no buildings could be erected, limitation of the floor area of the planned buildings, and establishment of a pattern of traffic in connection with the construction of the premises. After the board of alderman enacted the zoning amendment, Sylvania recorded the option agreement and attached deed form. Id. at 431-432, 183 N.E.2d 118.

We set out the essentials of the court's reasoning in upholding the validity of the zoning amendment.

"[A]lthough no condition was imposed by the aldermen in their vote, the conclusion is inescapable that the option proposal was a significant inducement of the zoning amendment and the amendment induced the giving of the option.

"It is said that there was a purported, invalid exercise of the zoning...