KCI Management, Inc. v. Board of Appeal

764 N.E.2d 377, 54 Mass. App. Ct. 254, 2002 Mass. App. LEXIS 370
CourtMassachusetts Appeals Court
DecidedMarch 20, 2002
DocketNo. 99-P-504
StatusPublished
Cited by10 cases

This text of 764 N.E.2d 377 (KCI Management, Inc. v. Board of Appeal) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KCI Management, Inc. v. Board of Appeal, 764 N.E.2d 377, 54 Mass. App. Ct. 254, 2002 Mass. App. LEXIS 370 (Mass. Ct. App. 2002).

Opinion

Duffly, J.

Boston’s board of appeal (board) has appealed from a judgment declaring invalid portions of a regulatory regime establishing a greenbelt overlay district. Because the governing greenbelt regulations permissibly impose conditions, through site plan review, on uses that otherwise are permitted as of right in the underlying district, we conclude that the overlay scheme is valid. As applied by the board, however, the regula[255]*255tians are invalid because the board failed to impose reasonable terms and conditions on the proposed use, thereby prohibiting uses allowed as of right. We also decide that the appeal of KCI Management, Inc. (KCI), was timely filed.

The underlying action was brought in the Superior Court by KCI, when KCI was denied building and conditional use permits to construct twenty-three single-family homes on a 7.22-acre parcel it owns in the Hyde Park section of Boston. A portion of this parcel lies within a Greenbelt Protection Overlay District (GPOD), as that term is defined by art. 29 of the Boston Zoning Code (code).1 Article 29 designates Turtle Pond Parkway (and other greenbelt roadways in Boston) and adjacent land falling within 500 feet of the centerline of the roadway as being within a GPOD.2 The board denied the permits on the basis that KCI “did not advance sufficient reasons to satisfy the [bjoard that all the conditions under which the [b]card may grant a[] [cjonditional [ujse [permit] under ... the [cjode have been met.” KCI [256]*256argued and the Superior Court judge agreed that, because the property in question is located in a district in which single-family houses are allowed as of right, art. 29, § 29-6 (as inserted on June 1, 1987), of the code impermissibly converts this allowed use into one that is subject to the discretion of the board because it requires an applicant for a building permit, first to obtain a conditional use permit.

Background. On November 8, 1996, KCI applied to Boston’s inspectional services department for building permits to construct twenty-three single family homes as part of a residential development to be located on land that previously had been used as a gravel pit. The application was denied on the ground that, as the property is located within a GPOD, arts. 6 and 29 of the code apply and require KCI to obtain a conditional use permit as a precondition to obtaining a building permit. KCI appealed from the denial of its building permit application to the board. KCI also applied to the board for a conditional use permit.3 After a hearing, the board voted to deny both KCI’s appeal and its conditional use permit application.

On April 28, 1997, KCI filed its complaint alleging that the board’s decision had exceeded its authority, and was arbitrary and capricious, because KCI had met all of the applicable conditions entitling it to the permits applied for. The complaint also sought a declaration that the GPOD regulatory scheme violates the uniformity requirement of Boston’s Zoning Enabling Act by transforming uses of right into conditional uses.4 The enabling act appears in St. 1956, c. 665; the uniformity requirement is in § 2 of the enabling act. The board disagreed. It also ruled that KCI was time-barred from challenging the validity of the GPOD by-laws. On KCI’s motion for summary judgment, the judge entered partial summary judgment in favor of KCI, ruling that KCI’s claim was not barred by the applicable limitations period, [257]*257and declaring that § 29-6 of art. 29 was invalid under principles enunciated in SCIT v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107 (1984), in that the requirement that landowners within a GPOD obtain a conditional use permit for any use violated the uniformity requirement of § 2 of the enabling act. We first address the claim that KCI’s complaint is time-barred.

Statute of limitations. KCI brought its appeal pursuant to § 11 of the enabling act.5 The parties agree that if § 11 applies, KCI’s appeal is timely. The board, however, argues that any challenge to the validity of a zoning regulation enacted by the Boston zoning commission must be brought pursuant to § 10A of the enabling act, requiring an appeal to be filed within thirty days following the effective date of “a decision of the zoning commission approving a zoning map amendment or a zoning regulation or amendment thereof.”6 Any claim of defect in art. 29, § 29-6, the board argues, must have been made not later than July 1, 1987, thirty days after the date the ordinance creating the GPOD was approved.

When a landowner’s request for a permit under the code is denied, it is “aggrieved by a decision of [the] board of appeal,” and properly must bring its appeal pursuant to § 11 of the enabling act, as KCI did here. The reasons for this were explained in Lopes v. Peabody, 417 Mass. 299, 302 n.7, 303 (1994). Although the issue in that case was standing, the court went on to state the principle applicable here, that “a purchaser of land subject to [a] restriction at the time of his purchase has [258]*258. . . every right to challenge the continued application of the restriction. We see no reason to permit challenges to the validity of a zoning enactment only by those landowners who owned land when the zoning provisions first affected it. A rule that a purchaser of real estate takes subject to all existing zoning provisions without any right to challenge any of them would threaten the free transferability of real estate, ignore the possible effect of changed circumstances, and tend to press owners to bring actions challenging any zoning provision of doubtful validity before selling their property. Moreover, such a rule would in time lead to a crazy-quilt pattern of the enforceability of a zoning law intended to have uniform applicability.” Id. at 303 (citation omitted). See Palazzolo v. Rhode Island, 533 U.S. 606, 627-628 (2001). KCI acquired its land in 1995. As the challenge here is to the validity of the regulations as applied to it, the limitations cannot begin to run before the challenged application has occurred. The judge correctly concluded that KCI’s challenge to the regulations was timely filed pursuant to § 11 of the enabling act.

We turn now to the substantive issue: whether the by-laws that together comprise the GPOD zoning scheme violate the uniformity requirement of § 2 of the enabling act.

The GPOD regulatory scheme. KCI’s parcel is located in the “S-5” subdistrict of an “S” residential district, which allows single-family homes to be constructed as a matter of right. See art. 3, § 3-1, and art 8, § 8-7, of the code. In addition to this traditional Euclidian7 classification scheme that divides the city of Boston into residential, business, industrial, and other uniform zoning districts, the code also authorizes “special purpose overlay districts.” Article 3, § 3-1 A. As we have noted, a part of KCI’s land lies within such an overlay district, namely the GPOD, established by art. 29 of the code. The stated purposes of the GPOD are:

“to preserve and protect the amenities of the city of [259]

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Bluebook (online)
764 N.E.2d 377, 54 Mass. App. Ct. 254, 2002 Mass. App. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kci-management-inc-v-board-of-appeal-massappct-2002.