Posted by: Patricia Salkin | January 9, 2009

MA Land Court Finds Lowe’s Principal Use is Retail Store and Sales and Not Lumber Yard and That the Planning Board Lacks Authority to Unconditionally Deny Site Plan Application

Lowe’s submitted three site plan applications to the planning board for purposes of building a retail establishment consisting of a 168,554 square foot structure (a 136,358 square foot building and a 32,196 square foot attached garden center). The three parcels involved in the proposed development are located in a Highway Business District where retail stores and sales uses are allowed subject to site plan approval, but a lumber yard is a prohibited use.  Lowe’s described its proposed use as “retail use (home improvement)” in the special permit and site plan applications it submitted. The planning board denied all of the requested permits, citing in the site plan denial, among other things, that a bulk merchandise retail use and/or lumber yard is not allowed in the Highway Business District. Lowe’s appealed the denials to the Land Court and to the zoning board but did not apply to the building inspector for a building permit. The zoning board reversed the planning board’s denial of the site plan applications.


The Massachusetts Land Court held that “When site plan approval is a prerequisite to building permit approval, a planning board’s decision regarding site plan approval is not appealable to a zoning board of appeals prior to the submission of a building permit application…” and that therefore the zoning board lacked jurisdiction to hear the appeal.  As a result, the zoning board’s decision was reversed.


With respect to the issue of whether a Lowe’s is a permitted use as of right, the Court found that since 75% of Lowe’s customers are not commercial sales customers, and since Lowe’s is openly and primarily engaged in the business of “displaying and selling goods or merchandise within a building to the general public or to business establishments which goods or merchandise are not intended for resale…” a Lowe’s retail establishment’s principle use is more appropriately defined as a retail store and sales than a lumber yard.


Lastly, the Court concluded that the planning board lacks authority to unconditionally deny site plan applications.  The planning board only has authority to impose reasonable conditions upon them, since the use is permitted as-of-right. Since the planning board in this instance has not reviewed the site plan applications within the framework of as as-of-right use, the Court remanded the matter to the planning board.  


Lowes Home Centers, Inc. v. Town of Auburn Planning Board, 2008 WL 5115069(Mass. Land Ct. 12/5/2008).


The opinion is not currently available on-line

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