NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1024 22-P-1026
RICHARD SCOTT & others 1
vs.
PLANNING BOARD OF LAKEVILLE & others 2 (and a companion case 3).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Rhino Capital Advisors, LLC (Rhino),
obtained a special permit and site plan approval (the permits)
from the town of Lakeville's planning board (board) for
construction of a 402,500 square foot warehouse and 130 loading
docks to operate twenty-four hours a day, seven days a week, on
property that formerly housed the Lakeville State Hospital (the
project). The site is located partially in a business zoning
district and partly in a residential zoning district; neither
allows warehouses. Two residential neighbor groups appealed
1 Janet Scott, Susan Aukstikalnis, and Norman Bossio. 2 Derek Maksy and Rhino Capital Advisors, LLC. 3 John Jenkins, Heather Bodwell, John Ayers, Ryan Eaton,
Stephanie Eaton, and Andrew Virostek vs. Planning Board of Lakeville, Tyler Murphy, and Rhino Capital Advisors, LLC. from the board's decision to the Land Court and, following a
view, a judge granted summary judgment to the neighbor groups
and annulled the permits. 4 Rhino appeals contending that the
project qualifies for the permits because the property at issue
is within the town's "Development Opportunities Overlay
District" (DO District). However, the town failed to amend the
zoning map to show the DO District, and did not otherwise
delineate the boundaries of the DO District or designate
specific parcels to be included. With this in mind and based on
the plain language of the DO District, we reject Rhino's theory
that the DO District applies to all of the property in the town.
Accordingly, we affirm the judgments.
Background. Because both parties parse the wording of the
DO District section of the bylaw and seek to apply different
rules of construction, we set forth the provisions in some
detail. The DO District was adopted at a town meeting on June
4, 2012, adding section 7.9 to the town's zoning bylaw (bylaw).
On the same evening, and immediately prior to adopting the DO
District, the town voted to accept the provisions of G. L.
c. 43D and approved the filing of an application with the
4 The two appeals of the board's decision were considered together in the Land Court, and Rhino's appeals of those decisions were heard together in this court.
2 "Interagency Permitting Board" for designation of the Lakeville
State Hospital site as a priority development site. 5
Pursuant to Section 7.9.1 of the bylaw,
"The purpose of the Development Opportunity (DO) District is to authorize the innovative use of certain portions of a defined overlay district for activities appropriate to large land areas by the issuance of a special permit with safeguards and conditions to prevent detrimental effects and impact upon neighboring properties, natural resources and upon the Town of Lakeville as a whole. The intent of the DO District is to provide opportunities for economic development expansion in a planned multi-use district while protecting the natural resources of the Town. The Development Opportunities District is an overlay district superimposed over those underlying districts as shown on the zoning map of the Town of Lakeville." (emphasis added).
Section 7.9.3.2 provides that no DO District "special permit
shall be granted unless the total land area, including streets
of the subject property consists of twenty-five or more acres."
Uses allowed by special permit in the DO District include
manufacturing and industrial, high technology, warehouses,
wholesale distribution centers, public service facilities,
transportation terminal, office and medical buildings, schools,
retail sales facilities, theaters, restaurants and other places
of public assembly.
5 In addition to expedited permitting, under c. 43D, priority development sites are eligible for priority consideration for community development action grants, public works economic development grants, quasi-public financing and training programs, brownfields remediation assistance, enhanced marketing, and technical assistance from the regional planning council. See G. L. c. 43D, § 12.
3 It is undisputed that the DO District is not shown on the
zoning map and that the zoning map was not amended to show the
boundaries of the DO District. Indeed, there is no reference to
the DO District on the zoning map. The board concluded that the
DO District "is a designated overlay district in the Lakeville
Zoning Bylaw that applies to land within the Town consisting of
a total land area, including streets, of twenty-five or more
acres." The judge concluded however, that although the town
properly enacted the DO District, it "is not effective with
respect to any particular land unless and until a zoning map
amendment, or other zoning enactment designating land to be
included in the district, is adopted." Accordingly, he annulled
the permits.
Discussion. 1. Standing. The judge concluded that almost
all of the parties in the two neighbor groups have standing
either because they are parties in interests and Rhino did not
refute their standing, or because they affirmatively
demonstrated their standing. 6 On appeal, none of the parties
makes an argument as to standing and we discern no reason to
disturb the judge's detailed findings and conclusion on that
issue. See Davenport v. Planning Bd. of Dennis, 76 Mass. App.
6 The judge concluded that John Jenkins, who lives over four miles from the site, did not have standing and Rhino's motion for summary judgment as to him was allowed. Jenkins does not challenge this determination on appeal.
4 Ct. 221, 224 n.10 (2010). See also 81 Spooner Rd., LLC v.
Zoning Bd. of Appeals of Brookline, 78 Mass. App. Ct. 233, 242
n. 22 (2010) (that one plaintiff was aggrieved person is
"sufficient to permit an appeal from the board's decision").
2. Interpretation of the DO District. "We review
interpretations of zoning bylaws de novo and according to
traditional rules of statutory construction." Pinecroft Dev.,
Inc. v. Zoning Bd. of Appeals of West Boylston, 101 Mass App.
Ct. 122, 128 (2022). While we generally defer to a local
board's reasonable interpretation of its own zoning bylaw, an
"incorrect interpretation of a statute . . . is not entitled to
deference." Shirley Wayside Ltd. Partnership v. Board of
Appeals of Shirley, 461 Mass. 469, 475 (2012). Similarly, we
give no deference to unreasonable interpretations of a bylaw.
See Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct.
19, 23 (2021).
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1024 22-P-1026
RICHARD SCOTT & others 1
vs.
PLANNING BOARD OF LAKEVILLE & others 2 (and a companion case 3).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Rhino Capital Advisors, LLC (Rhino),
obtained a special permit and site plan approval (the permits)
from the town of Lakeville's planning board (board) for
construction of a 402,500 square foot warehouse and 130 loading
docks to operate twenty-four hours a day, seven days a week, on
property that formerly housed the Lakeville State Hospital (the
project). The site is located partially in a business zoning
district and partly in a residential zoning district; neither
allows warehouses. Two residential neighbor groups appealed
1 Janet Scott, Susan Aukstikalnis, and Norman Bossio. 2 Derek Maksy and Rhino Capital Advisors, LLC. 3 John Jenkins, Heather Bodwell, John Ayers, Ryan Eaton,
Stephanie Eaton, and Andrew Virostek vs. Planning Board of Lakeville, Tyler Murphy, and Rhino Capital Advisors, LLC. from the board's decision to the Land Court and, following a
view, a judge granted summary judgment to the neighbor groups
and annulled the permits. 4 Rhino appeals contending that the
project qualifies for the permits because the property at issue
is within the town's "Development Opportunities Overlay
District" (DO District). However, the town failed to amend the
zoning map to show the DO District, and did not otherwise
delineate the boundaries of the DO District or designate
specific parcels to be included. With this in mind and based on
the plain language of the DO District, we reject Rhino's theory
that the DO District applies to all of the property in the town.
Accordingly, we affirm the judgments.
Background. Because both parties parse the wording of the
DO District section of the bylaw and seek to apply different
rules of construction, we set forth the provisions in some
detail. The DO District was adopted at a town meeting on June
4, 2012, adding section 7.9 to the town's zoning bylaw (bylaw).
On the same evening, and immediately prior to adopting the DO
District, the town voted to accept the provisions of G. L.
c. 43D and approved the filing of an application with the
4 The two appeals of the board's decision were considered together in the Land Court, and Rhino's appeals of those decisions were heard together in this court.
2 "Interagency Permitting Board" for designation of the Lakeville
State Hospital site as a priority development site. 5
Pursuant to Section 7.9.1 of the bylaw,
"The purpose of the Development Opportunity (DO) District is to authorize the innovative use of certain portions of a defined overlay district for activities appropriate to large land areas by the issuance of a special permit with safeguards and conditions to prevent detrimental effects and impact upon neighboring properties, natural resources and upon the Town of Lakeville as a whole. The intent of the DO District is to provide opportunities for economic development expansion in a planned multi-use district while protecting the natural resources of the Town. The Development Opportunities District is an overlay district superimposed over those underlying districts as shown on the zoning map of the Town of Lakeville." (emphasis added).
Section 7.9.3.2 provides that no DO District "special permit
shall be granted unless the total land area, including streets
of the subject property consists of twenty-five or more acres."
Uses allowed by special permit in the DO District include
manufacturing and industrial, high technology, warehouses,
wholesale distribution centers, public service facilities,
transportation terminal, office and medical buildings, schools,
retail sales facilities, theaters, restaurants and other places
of public assembly.
5 In addition to expedited permitting, under c. 43D, priority development sites are eligible for priority consideration for community development action grants, public works economic development grants, quasi-public financing and training programs, brownfields remediation assistance, enhanced marketing, and technical assistance from the regional planning council. See G. L. c. 43D, § 12.
3 It is undisputed that the DO District is not shown on the
zoning map and that the zoning map was not amended to show the
boundaries of the DO District. Indeed, there is no reference to
the DO District on the zoning map. The board concluded that the
DO District "is a designated overlay district in the Lakeville
Zoning Bylaw that applies to land within the Town consisting of
a total land area, including streets, of twenty-five or more
acres." The judge concluded however, that although the town
properly enacted the DO District, it "is not effective with
respect to any particular land unless and until a zoning map
amendment, or other zoning enactment designating land to be
included in the district, is adopted." Accordingly, he annulled
the permits.
Discussion. 1. Standing. The judge concluded that almost
all of the parties in the two neighbor groups have standing
either because they are parties in interests and Rhino did not
refute their standing, or because they affirmatively
demonstrated their standing. 6 On appeal, none of the parties
makes an argument as to standing and we discern no reason to
disturb the judge's detailed findings and conclusion on that
issue. See Davenport v. Planning Bd. of Dennis, 76 Mass. App.
6 The judge concluded that John Jenkins, who lives over four miles from the site, did not have standing and Rhino's motion for summary judgment as to him was allowed. Jenkins does not challenge this determination on appeal.
4 Ct. 221, 224 n.10 (2010). See also 81 Spooner Rd., LLC v.
Zoning Bd. of Appeals of Brookline, 78 Mass. App. Ct. 233, 242
n. 22 (2010) (that one plaintiff was aggrieved person is
"sufficient to permit an appeal from the board's decision").
2. Interpretation of the DO District. "We review
interpretations of zoning bylaws de novo and according to
traditional rules of statutory construction." Pinecroft Dev.,
Inc. v. Zoning Bd. of Appeals of West Boylston, 101 Mass App.
Ct. 122, 128 (2022). While we generally defer to a local
board's reasonable interpretation of its own zoning bylaw, an
"incorrect interpretation of a statute . . . is not entitled to
deference." Shirley Wayside Ltd. Partnership v. Board of
Appeals of Shirley, 461 Mass. 469, 475 (2012). Similarly, we
give no deference to unreasonable interpretations of a bylaw.
See Perry v. Zoning Bd. of Appeals of Hull, 100 Mass. App. Ct.
19, 23 (2021). "An interpretation of a bylaw provision is
unreasonable if it is inconsistent with that provision's purpose
or the bylaw as a whole." Pinecroft Dev., Inc., supra.
We note that "[t]he construction of a statute which leads
to a determination that a piece of legislation is ineffective
will not be adopted if the statutory language 'is fairly
susceptible to a construction that would lead to a logical and
sensible result.'" KCI Mgt., Inc . v. Board of Appeal of
Boston, 54 Mass. App. Ct. 254, 259-260 (2002), quoting Adamowicz
5 v. Ipswich, 395 Mass. 757, 760 (1985). Here, the town's
adoption of the DO District was effective to create the DO
District, but the town did not take the necessary steps to
define the limits of the DO District on the zoning map or
otherwise assign any specific property to it. See Cerel v.
Natick, 2 Mass. App. Ct. 822 (1974) (where town adopted planned
cluster development district without amending zoning map, town
"simply intended to create a new type of district to which land
could subsequently be assigned by amendment of the zoning map
. . . pursuant to a separate vote of the town meeting").
Notwithstanding, Rhino contends that the bylaw is ambiguous
because the clause in the purpose section of the DO District
provisions, "superimposed over those underlying districts as
shown on the zoning map," could be interpreted either to mean
that the DO District is superimposed over all of the underlying
districts shown on the zoning map or, as the judge found, over
only the underlying districts shown on the zoning map as
included in the DO District. "When ascertaining ambiguity, 'we
do not read words in isolation and out of context'" (citation
omitted). Matter of Leo Kahn Revocable Trust, 102 Mass. App.
Ct. 38, 42 (2022). "It is axiomatic that we are to 'look to the
language of the entire [bylaw], not just [textual snippets], and
attempt to interpret all of its terms harmoniously to effectuate
the intent of the [town meeting]'" (quotation omitted).
6 Commonwealth v. Graziano, 96 Mass. App. Ct. 601, 605 (2019),
quoting Commonwealth v. Mogelenski, 466 Mass. 627, 641 (2013).
Rhino contends that reading the provisions of the DO
District together compels the conclusion that the DO District
was intended to "create a townwide overlay district superimposed
over all underlying districts shown on the Zoning Map." Rhino
asserts that the only criterion is a "dimensional requirement"
that the lot consist of at least twenty-five acres. We
conclude, to the contrary, that when the bylaw's "language is
read in context of the remainder of [the DO District] -- its
meaning is reasonably plain:" the limits of the DO District
were to be reflected on the zoning map. Commonwealth v. Kiago,
101 Mass. App. Ct. 717, 736 (2022).
Several aspects of the DO District's purpose clause support
our conclusion that the extent of the DO District would be
defined and that the areas of the town that would be part of the
DO District would be designated on the zoning map. 7 For example,
the first sentence of the purpose clause provides that specified
DO District uses would be allowed in "certain portions of a
7 We note that in addition to the purpose clause, one of the criteria for granting a special permit in the DO District is that "the activities are consistent with the comprehensive plans of the Planning Board for the general development of the Town of Lakeville as a whole as well as for the DO District." This is yet another instance in the bylaw where the DO District is described as something other than the entire town.
7 defined overlay district" (emphasis added). Calling it a
"defined overlay district" is inconsistent with the suggestion
that the town intended that the DO District would overlay the
entire town and is consistent with the intention that the extent
of the overlay district would be delineated or precisely stated.
And, even if we were to accept that "certain portions" refers to
the twenty-five acres parcel requirement, there is a glaring
absence of anything in the bylaw that defines the extent of the
DO District, and nothing that even suggests that it was intended
to apply to all of the land in the town.
The purpose clause also refers to the DO District as a
"planned multi-use district" (emphasis added). Again, the use
of the terms "defined" and "planned" belie any suggestion that
the town intended to create a roaming district wherever in the
town twenty-five acres could be cobbled together.
Finally, the purpose clause provides that the DO District
"is an overlay district superimposed over those underlying
districts as shown on the zoning map of the Town of Lakeville"
(emphasis added). While Rhino suggests that the judge placed
too much emphasis on the terms "those" and "as shown," at
bottom, Rhino wants us to substitute "all" for "those" and
delete "as" from "as shown." Ambiguity is not created because a
party wishes different words were used. See Suffolk Constr. Co.
v. Lanco Scaffolding Co., 47 Mass App. Ct. 726, 729 (1999)
8 (ambiguity not created because parties assign different
interpretations to language). We decline to rewrite the bylaw.
Rather, read in conjunction with the rest of the purpose clause,
the intent of the DO District was to create a defined, planned,
multi-use district that would be shown on the local zoning map.
There is no ambiguity.
Our conclusion is further buttressed by examination of the
other overlay districts contained in the bylaw's section 7.0,
entitled "special regulations." Only the flood plain overlay
district and the water resource protection district apply to the
entire town. Although the flood plain district is not shown on
the zoning map, its provisions specifically provide that "[t]he
Floodplain District is established as an overlay district to all
other districts" (emphasis added). Similarly, the water
resource protection district (section 7.2), establishes
regulations that "apply throughout the Town." In sharp
contrast, the planned special purpose district is designated as
bounded by several specific streets, and is shown on the zoning
map. 8 The mixed use development district portion of the bylaw
8 In addition to delineating the boundaries of the planned special purpose ("PSP") district, the bylaw provides that "[t]he PSP district is an overlay district superimposed over the underlying district. This section shall only apply to the following uses on parcels of greater than twenty-five acres." "The purpose of the Planned Special Purpose District is to encourage and to authorize the mixed use development of large land areas by means of an association of a variety of building
9 specifically sets forth the precise parcels on Assessors' Maps
that are included in the district, and is shown on the zoning
map as consisting of a very small portion of the town. The
smart growth overlay districts "are overlay districts consisting
of the land, respectively shown on the Zoning Map" and a second
map "on file with the Town Clerk," and also specifically defines
the districts with word descriptions. It is clear that when the
town has chosen to facilitate development by special zoning, it
has defined the areas to be included. In the absence of
explicit language, it would be inconsistent with the zoning
bylaw as a whole to assume that the DO District applies to all
of the land in Lakeville.
It is apparent that the board believed that
"[r]edevelopment of the site will meet a socially and
economically desirable need by removing a blighted/abandoned
development and creating economic development, job creation,
. . . expanding the commercial tax base, . . ." and abating,
types and uses which are subordinate and mutually related to an identified authorized principal activity, with conditions and safeguards to prevent detrimental effects and impacts upon neighboring land uses and upon the Town of Lakeville generally." Permitted uses include cranberry culture and related uses, hotel and motel facilities, medical facilities, municipal facilities, museum, library or data storage facilities, office buildings, recreational facilities, and scientific research facilities related to other principal uses. Yet, despite that less burdensome uses are allowed as compared to the DO district, the actual area approved by the town meeting for inclusion in the PSP district is a small fraction of the town's total land mass.
10 remediating, and removing "existing hazardous materials on-site
including structurally failing asbestos containing buildings and
an uncapped unlined solid waste disposal area." While this may
be true and the redevelopment of the site may achieve laudable
goals and perhaps overlap with some of the goals of the DO
District, the town has not designated the site as covered by the
DO District, and we do not give deference to an unreasonable
interpretation of the bylaw. 9,10,11
Judgments affirmed.
By the Court (Blake, Massing & Hand, JJ. 12),
Clerk
Entered: November 29, 2023.
9 Rhino tries to connect the adoption of c. 43D and approving the filing of an application for designation of the locus as a priority development site and the adoption of the DO District. They argue it is apparent from the town's adoption of both articles that the town intended that the locus "would immediately become an eligible parcel in a townwide overlay district." We reject the argument; the specific designation of the locus as a priority development site has no bearing on whether the town intended the DO District to apply town wide. 10 Because of the result we reach we need not consider whether
the special permit and site plan approval were properly annulled because the DO District creates a "floating zone." 11 The plaintiffs' request for attorney's fees and costs is
denied. 12 The panelists are listed in order of seniority.