In August 2013, the Town of Eddington’s Planning Board approved a landowner’s application for a permit to create a one- to five-acre quarry, to be accessed by a private way, on property in Eddington that Hughes was under contract to purchase. In September 2013, Hughes filed a new application seeking permission to use the property as a larger, twenty-acre quarry. At public hearing, the Planning Board voted to deny the application because the private way did not provide an appropriate access way for the proposed larger quarry. Hughes then submitted a new application that proposed a separate access road directly from Route 9. Soon after, the members of the Planning Board attended a public meeting of the Board of Selectmen and presented the recommendation for a moratorium on quarries. The Board of Selectmen voted to deny the request for a moratorium.

In December, the Board of Selectmen held a public meeting at which a member of the public urged the Selectmen to reconsider placing a moratorium on quarries as proposed by the Planning Board. Also, in late 2013, Hughes submitted its first information request to the Town, seeking correspondence along with meeting agendas and minutes pursuant to the Freedom of Access Act (FOAA). In January 2104, the Planning Board, with six members present, unanimously voted to go into executive session for “Consultation with Legal Counsel,” citing to the FOAA. Around the time of the executive session, drafts of a proposed ordinance that would establish a moratorium on quarries were prepared. In April 2014, Hughes filed a three-count complaint in the Superior Court seeking declaratory and injunctive relief, which was transferred to the Business and Consumer Docket. The court found for the town, and on appeal, Hughes argued that the court erred in determining that the Town of Eddington Planning Board and Board of Selectmen conducted a valid joint executive session, invoked for the purpose of consulting with counsel.

The court first noted that an executive session may only be held for a purpose that is enumerated in section 405 of the FOAA, such as for “consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency.” Here, the session was described by the Planning Board as being sought for the purpose of having counsel “meet with the Planning Board in Executive Session to expand on the basis for his wording in the proposed Moratorium Ordinance.” The Town did not “finally approve” any ordinance or rule in executive session, but consulted with counsel during the executive session, and publicly deliberated and voted to present a proposed moratorium to the Board of Selectmen. The Board of Selectmen then held a public hearing before submitting the proposed moratorium to the vote of the Town’s residents at a special town meeting. Only after a majority vote of the residents at the town meeting that the moratorium was actually adopted. Moreover, the FOAA contained no prohibition against municipal boards simultaneously entering into executive session to jointly consult with counsel about how to comply with the law in carrying out their respective duties. Accordingly, the court affirmed the trial court’s holding that each Board’s consultation with legal counsel in executive session complied with the conditions specified in the FOAA.

Hughes Bros., Inc. v Town of Eddington, 2016 WL 159296 (ME 1/14/2016)

The City of Los Angeles Prop D enacted City Ordinance No. 182580, which repealed the existing sections of the municipal code relating to medical marijuana, and enacted new provisions. Prop D provided that it was “unlawful to own, establish, operate, use, or permit the establishment or operation of a medical marijuana business …” in the City. However, there was a limited exception for medical marijuana businesses meeting several requirements, including the condition that the medical marijuana business must have timely registered under both the Interim Control Ordinance and the Grandfather/Lottery Ordinance. The Interim Control Ordinance prohibited dispensaries except for any dispensary established before the ordinance’s effective date (September 14, 2007) and operating in accordance with state law, if the owner or operator of the dispensary were to register with the City Clerk by filing certain identified documents within 60 days (by November 13, 2007). The Grandfather/Lottery Ordinance allowed all collectives which had been in operation on or before September 14, 2007 to register for the right to participate in a lottery, from which 100 collectives would be chosen for inspection and, if all other requirements were satisfied, registration. Other requirements included restrictions on hours of operation, limits on proximity to land zoned residential, and limits on proximity to schools, parks, religious institutions, and other medical marijuana businesses. The City prevailed on a demurrer to appellants’ first amended complaint, and on appeal the Appellants challenged the process by which Prop D was enacted.

Appellants’ principle contention was that Prop D was adopted in violation of Government Code section 65804, a section of the state Zoning Act, which imposes minimal procedural standards for city zoning hearings. The City argued that the Zoning Act requirements applied only to the enactment of ordinances by local legislative bodies and not to the enactment of ordinances by initiative or referendum (whether in a charter city or general law city). The court agreed, finding that “when zoning is enacted by initiative, landowners have the same opportunity as their opponents to present their case to the electorate.” Therefore, it held that any failure to follow the Zoning Act notice and hearing requirements for council-enacted ordinances had no effect on the validity of Prop D.

Appellants next argued Prop D was preempted by California’s Medical Marijuana Regulation and Safety Act (MMRSA), which created a state licensing scheme for medical marijuana. However, because Prop D was a municipal initiative on a wholly municipal matter, it was properly enacted without a planning commission hearing. Moreover, the MMRSA stated that nothing in its regulatory scheme “shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.” It also explicitly stated that issuance of a state medical marijuana license “shall in no way limit the ability of the City of Los Angeles to prosecute any person or entity for a violation of, or otherwise enforce, Proposition D”. Accordingly, the court affirmed the trial court’s dismissal of the Appellants’ claims, and denied leave to amend.

Safe Life Caregivers v City of Los Angeles, 2016 WL 146695 (Ca. App. 1/13/2016)

The NYS DEC will take comments through February 13, 2016 on proposed changes to the Conservation Easement Regulations – NYCRR Part 529. The purpose of the proposed new regulations is to provide standards and a procedure for DEC staff to utilize when modifying or extinguishing a conservation easement administered by the Department. The proposed new standards and procedures are as follows:

  1. a) The standards for the modification of a DEC conservation easement include:
  2. A modification of a DEC conservation easement, other than a modification to the stated purpose(s) as set forth in a DEC conservation easement, must not alter, and must be consistent with, the stated purpose(s) of the DEC conservation easement; and
  3. A modification of a DEC conservation easement must not affect the perpetual nature of the DEC conservation easement; and
  4. The modification must comply with all other existing policies, laws or regulations, including the specific requirements of the provisions of ECL section 49-0307, in effect at the time of the modification; and
  5. The proposed modification of a DEC conservation easement shall not result in any net loss of benefits to the state, as determined by the department in its sole discretion, including: consideration of any change in the level of public recreational opportunities or any change to the limitations or restrictions on the development, management or use of the property, or any other real property owned by or under the control of the grantor, for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the area where the property is located in a manner consistent with the public policy and purpose set forth in ECL section 49-0301.

(b) The standard for the modification of the purpose(s) or the extinguishment of a DEC conservation easement shall require a finding by the department that the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in the ECL section 49-0301.

Section 592.4 Procedures

The Department must comply with the following procedures for the modification or the extinguishment of a DEC conservation easement.

(a) Written notice to grantor and entities entitled to third party enforcement rights. The department must provide written notice of the proposed modification or extinguishment of a DEC conservation easement to the grantor and entities designated in the DEC conservation easement as having third party enforcement rights by certified mail, return receipt requested to the address on file with the department for the respective entities; and

(b) Public notice, comment period, non-adjudicatory hearing.

 

  1. Public Notice.
  2. For modification only of DEC conservation easement. The department must publish public notice in the ENB of the department’s intent to modify a DEC conservation easement including a general summary of the proposed modification(s) and the opportunity for the public to submit written public comments to the department. The public comment period shall begin on the date the notice of the public comment period appears in the ENB; or
  3. For modification to the purpose(s) or extinguishment of DEC conservation easement. The department must publish public notice of its intent to modify the purpose(s) or extinguish a DEC conservation easement in the State Register, the ENB and in a newspaper having a general circulation in the county where the property is located. The public notice shall include the facts supporting a finding that the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in the ECL section 49-0301 and the date of a non-adjudicatory hearing to be held at least thirty (30) calendar days after the date of the publication.
  4. Public comment period. The department must provide for a public comment period for thirty (30) calendar days to accept public comments related to the proposed modification to, or extinguishment of, a DEC conservation easement. The department may provide for the receipt of public comment through the use of meetings, exchanges of written material, or other means during the public comment period.
  5. Non-adjudicatory public hearing. For proposals which include the modification of the purpose(s) or extinguishment of a DEC conservation easement, the department must conduct a non-adjudicatory public hearing to be held during the public comment period to provide the public with an opportunity to be heard on the modification of the purpose(s) or the extinguishment of a DEC conservation easement.

(c) Commissioner’s determination only for modification to the purpose(s) or extinguishment of DEC conservation easement.

  1. For any proposed modification to the purpose(s) or the extinguishment of a DEC conservation easement, the Commissioner must make a written determination that the conservation easement can no longer substantially accomplish its original purposes. The proposed modificaton to the purpose(s) or extinguishment of a DEC conservation easement following closure of the public comment period, shall consider the following reasons in support of the determination: (1) why the DEC conservation easement can no longer substantially accomplish its original purpose(s) or any of the purposes set forth in ECL section 49-0301, and determine if it should therefore be extinguished or modified; (2) if modified, the proposed modification to the purpose(s) set forth in the DEC conservation easement will comply with the requirements of section 592.3 of this Part and be consistent with the policies and objectives set forth in ECL section 49-0301; and (3) if a DEC conservation easement is modified or extinguished pursuant to this Part, it shall be set forth in an instrument which complies with the requirements of ECL section 49-0305.
  2. The Commissioner must publish the determination and a summary of the determination in the ENB. The recording of a deed or other conveyance document in the county clerk’s office where the DEC conservation easement is located must be filed no earlier than one hundred twenty (120) calendar days after the notice of the Commissioner’s determination appears in the ENB.

Comments may be sent to:

Jim Sessions, Forester

Division of Lands and Forests

625 Broadway

Albany, NY 12233-4250

ConservationEasements@dec.ny.gov

 

For more information see: http://www.dec.ny.gov/regulations/2359.html

Timothy and Susan Kristjanson filed an application with the BZA requesting a conditional use permit to operate a kennel for dogs and cats on their 9.775–acre property, which was zoned as an Agricultural District. The application was denied by a zoning official for the BZA on the ground a kennel is a conditional use under the Union Township Zoning Regulation. Although the Kristjansons did not appeal the denial of their application, the BZA held a hearing on the application. Plaintiffs-appellants, Thomas and Melissa Queen, appealed the decision of the Fayette County Court of Common Pleas affirming the decision of defendant-appellee, the Union Township Board of Zoning Appeals (BZA), granting an application for a conditional use permit.

Appellants first argued the BZA erred in believing it had no authority to deny the Kristjansons’ application for a conditional use permit. However, the Zoning Resolution provided that the BZA “may grant conditional approval for use of the land,” and thus plainly stated that the granting of a conditional use permit is discretionary and not mandatory. Appellants next argued the common pleas court erred in affirming the BZA’s decision because the BZA “failed to make any findings, oral or written, that it considered all the requirements for conditional uses set forth in the zoning resolution.” Here, Section 9.03 of the Zoning Resolution, which governed standards for conditional uses, did not require the BZA to make specific or express findings as a prerequisite to granting a conditional use permit. Moreover, in its decision affirming the grant of the conditional use permit, the common pleas court found that the BZA’s findings pursuant to Section 9.03 were “implicit in its decision to grant the conditional use permit with supplemental conditions.”

Lastly, appellants argued that the BZA’s decision to grant the conditional use permit was not supported by the preponderance of reliable, probative, and substantial evidence because the BZA failed to consider and address the six factors in Section 9.03. The court found that there was ample evidence in the transcript and the minutes of the June 17, 2014 hearing, to show the BZA considered: Mrs. Kristjanson’s testimony with regard to her proposal for a kennel, the concerns raised by the area residents about the kennel, and evidence relating to the applicable factors listed in Section 9.03. Even though the BZA did not explicitly address each of the factors listed in Section 9.03, it clearly considered and addressed them in its general discussion of the merits of the application and in prescribing specific additional conditions on the conditional use permit granted to the Kristjansons. Accordingly, the court found that the common pleas court did not err in affirming the decision of the BZA to grant the Kristjansons’ application for a conditional use permit.

Queen v Union Townships Board of Zoning Appeals, 2016 WL 228268 (OH App. 1/19/2016)

EMAC, L.L.C. filed an action for declaratory judgment, damages and attorney’s fees against the County of Hanover and the Board of Supervisors of the County of Hanover. EMAC alleged impermissible discrimination in the Board’s denial of an extension of a conditional use permit (CUP) allowing placement of signs to advertise mall that had not yet been developed. The County and the Board (collectively “defendants”) filed a demurrer and motion to dismiss, the circuit court granted the defendants’ demurrer and motion to dismiss, and EMAC appealed.

EMAC first argued that the circuit court erred when it sustained the demurrer and motion to dismiss based upon the grounds that EMAC did not allege that the existing zoning ordinance was unreasonable without a CUP permitting a destination commerce sign on its property. Here, EMAC’s amended complaint alleged that the Board discriminated against it by rejecting its application for an extension of CUP–2–12 for the southern sign while granting Northlake’s extension request of CUP–2–12 for the northern sign. The court noted that an impermissibly discriminatory decision is unreasonable regardless of whether the existing zoning ordinance is reasonable as applied to an applicant’s land. Therefore, if a landowner alleges that a zoning decision impermissibly discriminated against it, it has implicitly alleged that the decision was unreasonable. Accordingly, the court erred in finding that EMAC was required to allege that the existing zoning ordinance was unreasonable as applied to its land in order to state a cause of action, and in granting defendants’ demurrer and motion to dismiss on that basis.

As an alternative basis for its decision to grant defendants’ demurrer, the circuit court stated that the amended complaint and exhibits demonstrated that the decision to deny EMAC’s extension request was supported by a rational basis and was fairly debatable. The court found that when viewed in the light most favorable to the plaintiff, Northlake and EMAC were not similarly situated parties. While Northlake, the owner of the land designated for the northern sign, was listed as an applicant on the application for CUP–2–12 and it gave County representatives permission to enter its land to inspect upon request, neither EMAC, the owner of the land designated for the southern sign at the time of the application for CUP–2–12, nor its attorney-in-fact or tenant was an applicant, and EMAC gave no such permission. Thus, Northlake was seeking an extension for a valid portion of CUP–2–12, while EMAC was seeking an extension for a void ab initio portion of CUP–2–12. Additionally, Northlake had an agreement with the outlet mall developer concerning the operation of the northern sign on its property, and there was no controversy concerning whether extension of that CUP is consistent with the public interest of developing the outlet mall and constructing the sign.

For these reasons, the court found that is was rational, fairly debatable and consistent with the public interest to allow the CUP for the sign on EMAC’s property to lapse so that the Board could evaluate the appropriate placement of the southern sign consistent with the public interest. It therefore affirmed the circuit court’s holding.

EMAC, LLC v County of Hanover, 2016 WL 164132 (VA 1/14/2016)

Petitioner Mary Sue DiFebo argued that the Superior Court erred by dismissing her amended petition seeking review of a Board of Adjustment decision that granted a variance application for two land plots located near DiFebo’s home to be subdivided into four flag lots. The Superior Court dismissed, finding DiFebo had not named the owners of the two properties that were the subject of the Board’s proceeding within the thirty-day statute of limitations. As an alternative reason for dismissal, the Superior Court found that DiFebo had not met the requirements for relation back under Superior Court Civil Rule 15(c)(3).

DiFebo first argued that the Superior Court erred because it held that her amendment to add the indispensible property owners could not relate back to her timely initial filing unless it was filed within the statute of limitations under the relevant statute which, she argued, applied the old version of Rule 15(c). The court found that the Superior Court failed to take account of a 1993 amendment to Rule 15(c); importantly, Rule 15(c)(3) allows for the relation back of an amendment as long as the rule’s requirements are satisfied “within the period provided by … these Rules for service of the summons and complaint.” Thus, DiFedo’s petition should not have been dismissed on this ground.

One of the conditions for relation back to apply was that DiFebo was required to show that, within the period of time for service, the property owners “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against them.” However, the court noted that Delaware courts generally decline to find a mistake when the plaintiff cannot demonstrate an intent to include the unnamed party before the limitations period expired, but will find a mistake if the plaintiff intended to sue certain parties but was misled as to the identity of those parties. Here, the only excuse for not naming these parties was that DiFedo’s attorney did not research who the owners of the properties were. Accordingly, because the Superior Court correctly determined that DiFebo did not satisfy all of Rule 15(c)(3)’s relation back requirements, the court affirmed the Superior Court’s judgment dismissing DiFebo’s amended petition.

Difebo v. Board of Adjustment of New Castle County, 2016 WL 297490 (DE 1/25/2016)

In 2009, Robert Snyder sued the City of Waltham, Massachusetts, and several of its officials alleging that their vindictive application of a local zoning board’s authority violated state law as well as the United States and Massachusetts Constitutions. In 2014 the court previously ruled, on interlocutory appeal, that two individual defendants were immune to suit under 42 U.S.C. §1983 because Snyder’s Equal Protection claim—the “only preserved federal claim” in the case—failed because Snyder did not show that the defendants had treated him differently than any other similarly-situated individual.

As to the §1983 claims, the complaint contained no allegation that the municipal officials retaliated against Snyder because he supplied information to a state tribunal. Even though the complaint mentioned that a state tribunal requested information from Snyder, and denied Collura benefits, it did not allege that Collura knew what information he supplied to the tribunal. Moreover, the claim also expressly alleged that the retaliatory campaign began before the state agency even requested any information. As to the Eighth Amendment claim, while the complaint mentioned a “notice” of a “$300” fine for each day a zoning violation was not abated, it failed to offer any facts suggesting how such a fine was excessive, or was either paid or still threatened. Additionally, in response to the motion to dismiss and motions for summary judgment, Snyder omitted any mention of these theories. Accordingly, the court found that the point at which Snyder needed to reveal those theories passed well before he announced the theories that he attempted to pursue in this case.

Likewise, Snyder alleged in his earlier complaint that the defendants “conspired to retaliate against Snyder and deny him equal protection of the laws,” and that they were engaged in a “civil conspiracy to commit tortious conduct.” Because of this Snyder waived the opportunity to assert the second type of conspiracy based on the defendants’ allegedly unique ability to exert a “peculiar power of coercion” when acting in unison.

Lastly, Snyder asserted a claim under the Massachusetts Civil Rights Act. Like the federal claims, Snyder raised no such theories in opposing the motion to dismiss, nor did he otherwise raise them in response to the original motion for summary judgment until after discovery closed. For these reasons, the court affirmed the entry of summary judgment on all of Snyder’s claims and the denial of his motion for leave to amend.

Snyder v. Collura, 2016 WL 325091 (1st Cir. CA 1/27/2016)

In an action to permanently enjoin alleged violations of the Zoning Resolution of the City of New York, the defendant Robert Cunningham appealed from an order of the Supreme Court, Kings County, which, granted the motion of nonparty Stuart A. Klein and his law firm to be relieved as the plaintiffs’ counsel. Additionally, Cunningham also appealed from an order of the same court, which denied his motion to dismiss the complaint for lack of standing and lack of personal jurisdiction.

The court noted that to establish standing to maintain a private common-law action to enjoin zoning violations, a private plaintiff must establish that due to the defendant’s activities, he or she will sustain special damages that are “different in kind and degree from the community generally” and that the asserted interests fall “within the zone of interest to be protected’ by the statute or ordinance at issue”. Here, the court found that the record indicated the plaintiffs’ property was in close proximity to the defendants’ property and that the plaintiffs’ interests were within the zone of interest to be protected by the zoning ordinances alleged to be violated. Because Cunningham failed to rebut this evidence, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint pursuant to CPLR 3211(a)(3).

Similarly, the court found that the state Supreme Court properly denied the appellant’s motion pursuant to dismiss the complaint for lack of personal jurisdiction, since the appellant failed to submit a sworn denial of receipt of process to rebut the presumption of proper service. The court therefore affirmed the determination of the trial court to dismiss Cunningham’s motions.

Gershon v Cunningham, 2016 WL 229867 (NYAD 2 Dept. 1/20/2016)

Petitioner owned commercial property located in the business district of the Village of Southampton, which consisted of several retail shops occupied by various tenants. In 1982, the Code of the Village of Southampton was amended to prohibit retail stores from operating in units that were less than 800 square feet. In 2008, the Village’s Building Inspector discovered that one of the petitioner’s tenants was operating a retail shop in a 100 square foot unit and notified the petitioner that the unit violated the zoning code. The petitioner appealed the Building Inspector’s determination to the Village’s Zoning Board of Appeals, arguing that the nonconforming unit was a lawful, preexisting use. The petitioner supported this contention with an appraisal report that was performed in connection with its mortgage application in 1999 and a certificate of occupancy that had been issued prior to the closing, which listed a 100 square foot unit as occupied in 1999. However, neither the appraisal report nor the certificate of occupancy included a floor plan that showed the layout of the seven shops that existed in 1999. The Building Inspector responded with documents from the Building Department, which included the 1999 certificate of occupancy and surveys from 1999 and 1981 showing the floor plan and layout of the seven stores on the property. Because these surveys did not include the 100 square foot unit at issue, the ZBA affirmed the Building Inspector’s determination.

On appeal the court found that the record was still devoid of any evidence demonstrating that the subject 100 square foot unit existed and was being used as retail space in or before 1982 when the zoning code was amended to prohibit such use. While the certificate of occupancy gave the petitioner the right to use the seven stores depicted on the 1999 survey, the unit at issue was not portrayed on that survey, so the court determined the certificate did not authorize its use. Accordingly, the court held that it was not arbitrary and capricious or irrational for the ZBA to conclude that the petitioner’s use of the subject unit was not the continuation of a legal, nonconforming use.

East End Holdings, LLC v Village of Southampton Zoning Board of Appeals, 2016 WL 229660 (NYAD 2 Dept. 1/20/2016)

Plaintiff Cumberland Farms, Inc. owned a commercially-zoned property on Route 6 in Wellfleet, currently occupied by a Cumberland Farms convenience store, a liquor store that leases its retail space from Cumberland, an abandoned single-family residence, and a garage that had been leased for vacant storage space. Cumberland proposed to redevelop the property by demolishing the existing retail structures and the abandoned residence, constructing a new building to house both the Cumberland convenience store and the liquor store tenant, adding a canopied fuel pump island in front of the new building with two gasoline pumps and one diesel pump, re-configuring the entrance and exit drives to make them easier and safer to use, and re-landscaping the site to improve its appearance and install additional tree and shrub buffering from its neighbors. The Zoning Board denied the two related special permit requests: to authorize the filling station use, and to add another principal use (the filling station) on the property. The ZBA based on its ruling that it lacked jurisdiction over those applications because Cumberland had not first obtained a Formula Business Special Permit from the Wellfleet Planning Board pursuant to Bylaw, § 6.30. Additionally the ZBA found that the redevelopment did not provide adequate parking, would increase traffic congestion along Route 6, and would negatively affect property values.

The court first discussed that Cumberland’s Wellfleet store was a Formula Business within the bylaw definition because its exterior signage identified it as “one of twenty five or more other businesses worldwide.” However, because both its merchandise and the way that merchandise was “arrayed” are similar to convenience stores generally, and not unique to Cumberland, it would not otherwise fall within the definition. The Town contended that its Formula Business bylaw was consistent with its authority under the Zoning Act because the bylaw regulated “aesthetics which are a public interest that justifies the exercise of municipal zoning power.” However, the Formula Business bylaw was invalid because its requirements did not apply to a non-Formula Business doing the same things, in the same location, in the same way. Since there was no evidence that Formula Businesses generated greater or different adverse impacts than those businesses that did not come within that definition, it was invalid: both on its face and as applied.

At trial Cumberland retained McMahon Associates, a traffic engineering firm, to submit a traffic impact study “to determine the development’s effect on road traffic-carrying capacity, road physical environment, and traffic and pedestrian safety.” Gary McNaughton, vice president of McMahon Associates, who oversaw Cumberland’s traffic impact studies and testified about them. In its decision, the Zoning Board rejected McMahon’s traffic study in large part because it was not conducted during the summer and relied on seasonally-adjusted October data. However, Mr. Michaud testified on cross examination that relying on seasonally-adjusted data is an accepted industry practice and should not be the sole basis for rejecting a traffic study. Moreover, when McMahon conducted a summertime manual traffic count in July 2012 after the Zoning Board issued its decision, it showed there was no material disparity between the results obtained from the seasonally adjusted October data and the July data. Accordingly, the Zoning Board’s traffic-related reasons for denying Cumberland’s special permits were unsupported by the evidence or any rational view of the evidence, and therefore arbitrary and capricious.

The Zoning Board also found that the six proposed parking spaces shown alongside the fueling pumps could not be considered valid parking spaces because they were “passageways”. However, the court found while the areas between each fuel pump resembled passageways, they functioned much differently because they were not intended or used to provide unimpeded or continuous passage. These areas could therefore be properly designated as parking spaces on Cumberland’s proposed plan. Finally, no evidence was found to support any contentions that the filling station would lower property values or increase negative light or noise effects. Consequently, the court vacated and remanded the Zoning Board’s denial of Cumberland’s application for two special permits.

Cumberland Farms, Inc. v. Jacob, 2015 WL 5824402 (MA Land Ct 10/6/2015)

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