SCIT, Inc. v. Planning Bd. of Braintree

• Decision Date: 21 December 1984
• Citation: 19 Mass.App.Ct. 101,472 N.E.2d 269
• Parties: SCIT, INC. v. PLANNING BOARD OF BRAINTREE et al. 1
• Court: Appeals Court of Massachusetts

Page 269

472 N.E.2d 269

19 Mass.App.Ct. 101

SCIT, INC. v. PLANNING BOARD OF BRAINTREE et al. ¹

Appeals Court of Massachusetts,

Norfolk.

Argued Sept. 10, 1984.

Decided Dec. 21, 1984.

Robert T. Smart, Jr., Holyoke, for defendants.

Charles C. Ames, Boston, for plaintiff.

Before GREANEY, C.J., and CUTTER and WARNER, JJ.

GREANEY, Chief Justice.

Although many issues have been argued, we need only decide one question in this case: whether the Braintree zoning by-law may make, consistent with G.L. c. 40A, the Zoning Act, ² all uses in a business district conditional on the issuance of a discretionary special permit.

SCIT, between 1960 and 1981, was the primary developer of approximately ninety-one acres of land in a business district located at the junction of routes 3, 37, and 128 in Braintree. On seventy-one acres of its land, SCIT developed the South Shore Plaza, a shopping and business complex containing 1,300,000 square feet of mixed commercial and retail space. On the remaining twenty acres of so-called "fringe land" SCIT constructed commercial buildings and maintained parking. ³

SCIT has always intended to develop an office building on the "fringe land." (An office building is a permitted use in the district subject to certain dimensional and other requirements which are not in controversy.) Despite the permitted nature of the use, SCIT was required by § 135-604 of the Braintree zoning by-law to apply for a special permit for the construction of its office building. In January, 1980, SCIT applied to the planning board for the required special permit to construct an 80,000 square foot office building on the "fringe land." SCIT's application for the special permit was accompanied by a "written traffic analysis performed by a recognized traffic consultant" as required by art. II, § 3, of the planning board's regulations. The town's police chief approved the application (he being the municipal officer directly concerned with traffic) and the board unanimously granted the permit. The Superior Court upheld the board's action against a challenge by area residents. SCIT, however, never commenced construction under the permit.

In December, 1981, SCIT sold all the developed land to Corporate Property Investors, retaining two parcels on the "fringe land": the parcel containing the telephone company building and a parcel containing 4.39 acres of vacant land. SCIT decided to move the site of its proposed office building to the 4.39 acre parcel, relocate the building from one side of a service road to another, and expand the size of the building from 80,000 square feet to 92,700 square feet. ⁴ On August 23, 1982, SCIT applied anew to the planning board, pursuant to § 135-604 of the by-law, for a special permit. SCIT submitted detailed plans with its application which included a new traffic impact report prepared by a qualified traffic engineer. After a public hearing on January 18, 1983, the board voted (two to one) to deny SCIT's application for a special permit. The only reason stated in the board's decision was that "the proposed project has failed to obtain a positive recommendation from the Police Department." On that point, the decision referred to two letters from the police chief which indicated that the chief's opposition to the project was based on his opinion that traffic capacity of the roadways adjoining the locus had been reached. ⁵

SCIT appealed the board's decision by filing a complaint in the Superior Court pursuant to G.L. c. 40A, § 17. After an evidentiary hearing, held in accordance with the de novo procedure described in Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436 (1972), a judge of the Superior Court annulled the board's decision and ordered the issuance of the special permit. The judge concluded, on the facts he found, that the board was "without authority to deny SCIT a special permit except upon grounds expressly stated in the [b]y-law" and that the board had acted arbitrarily in denying the special permit "solely on the ground that the Braintree [p]olice [d]epartment recommended against the application because of its concern about traffic." The board and town have appealed from the judgment, which orders issuance of the special permit.

1. The Braintree zoning by-law, adopted in 1981, is, in general, based upon a traditional Euclidean classification scheme. ⁶ Section 135-301 of the by-law divides the town into seven use districts, ranging in restrictiveness from residential to business and industrial. ⁷ Article VI of the by-law, and its various sections, spell out the uses permitted as of right in each district and provide, in some districts, for conditionally permitted uses which will be "subject to approval by the special permit granting authority" (the planning board). ⁸

In business districts, governed by § 135-605 of the by-law, numerous uses including offices are set out as permitted as of right, ⁹ with only filling stations or garages requiring approval by the zoning board of appeals as the permit granting authority. Arching over all uses in a business district, however, are the separate provisions of § 135-604 of the by-law which provide that "[a]ll proposed development in ... [b]usiness districts shall be by special permit submitted to the special permit granting authority for approval." ¹⁰ The word "development" is broadly defined by § 135-102 of the by-law to include, "Any man-made change to improve or unimprove real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations." There is no doubt that the effect of § 135-604 is to make every use in a business district subject to the grant of a special permit by the planning board (and apparently in the case of a filling station or a garage permit approval from both the planning board and the zoning board of appeals). The board and town concede that this is indeed the effect of § 135-604, and admit that the provision was purposely adopted to authorize the considerable discretion conferred by established Massachusetts case law on special permit granting authorities to grant or deny special permits. ¹¹ The board and town further concede, as we think they must, that § 135-604 cannot be construed as calling simply for site plan approval. ¹² Finally, it is apparent that the only source of standards to guide the planning board in its decision whether to grant or deny a special permit under § 135-604 (besides area, height, density, and parking provisions of the variety common to most by-laws) are those described in the purposes clause of the by-law. ¹³

2. The problem is not difficult to frame. The Zoning Act, G.L. c. 40A, has, with precision, set out limits on the exercise of zoning power by the municipality. In this case, Braintree has attempted to use the power delegated by the Zoning Act in a fashion which creates a logical inconsistency between §§ 135-605 and 135-604 of the by-law. The former provision identifies and authorizes specific uses as of right in a business district (with only filling stations and garages reserved for approval by permit), while the latter provision purports to make all uses in the same district dependent on the grant of a special permit. We see no reasonable way to reconcile the two provisions. Therefore, we ask: which should prevail? We conclude that the regulation of uses within a business district contemplated by § 135-604 is unlawful because the provision conflicts with the uniformity and special permit provisions of the Zoning Act.

Section 4 of c. 40 A provides that "[a]ny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." The basic assumption underlying the division of a municipality into zoning districts is that, in general, each land use will have a predictable character and that the uses of land can be sorted out into compatible groupings. See Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128, 132, 31 N.E.2d 436 (1941). Based upon this assumption, certain uses are permitted as of right within each district, without the need for a landowner or developer first to seek permission which depends upon the discretion of local zoning authorities. The uniformity requirement is based upon principles of equal treatment: all land in similar circumstances should be treated alike, so that "if anyone can go ahead with a certain development [in a district], then so can everybody else." 1 Williams, American Land Planning Law § 16.06 (1974).

These principles underpin § 4 of c. 40 A, and have long constituted a limitation on municipal zoning power. ¹⁴ As was said on the subject in Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass. 433, 439, 86 N.E.2d 906 (1949): "A zoning ordinance is intended to apply uniformly to all property located in a particular district ... and the properties of all the owners in that district [must be] subjected to the same restrictions for the common benefit of all."

Some exceptions to uniformity are sanctioned by the Zoning Act and involve generally a limited tolerance for nonconforming uses (§ 6 of c. 40 A) and provision for special permits and variances (§§ 9 and 10 of c. 40 A, respectively). These exceptions aside, § 4 does not contemplate, once a district is established and uses within it authorized as of right, conferral on local zoning boards of a roving and virtually unlimited power to discriminate as to uses between landowners similarly situated. Section 135-604 attempts to do precisely that in direct contravention of § 4 of the Zoning Act. What was said by Justice Qua in Smith v. Board of Appeals of Fall River, 319 Mass. 341, 344, 65 N.E.2d 547 (1946), with respect to a by-law's violation of an earlier (but similar) version of the uniformity requirement, applies with equal force to § 135-604 and demonstrates...