In the recent Land Court decision in Rossen v. Long, 20 MISC 000395 (MDV) (Mass. Land Ct. Jan. 24, 2022), the Land Court dismissed abutters’ spot zoning claim and held that the abutters lacked standing to appeal the Framingham Planning Board’s (the “Board”) approval of a site plan for a marijuana cultivation and product manufacturing facility.

As more municipalities amend their bylaw to allow for the cultivation of marijuana, the Rossen decision provides some guidance in defeating a claim for spot zoning and also serves as a reminder of the importance of retaining competent experts in a zoning appeal to either rebut or substantiate an injury relative to a municipal board’s approval of an application.

In late 2018, the City of Framingham amended its bylaw to permit the construction and operation of marijuana cultivation and product-manufacturing facilities in the City’s R-4 Zoning District, provided that such facilities received site-plan approval from the Board (the “2018 Amendment”). Subsequent to the 2018 Amendment, the Board approved a site plan filed by the defendant, Commonwealth Farm 1761, Inc. (the “Applicant”), approving the Applicant’s site plan to construct and operate a marijuana cultivation and product manufacturing facility (the “Farm”) on a 112-acre parcel located in the R-4 Zoning District. The Plaintiffs, owners of abutting properties, filed suit (1) advancing a claim against the Board seeking a declaration that the 2018 Amendment was unlawful as an exercise of “spot zoning;” and (2) appealing the Board’s site plan approval decision under G.L. c 40A, § 17. The Land Court dismissed the Plaintiffs’ spot zoning claim and held that the Plaintiffs lacked standing to challenge the Board’s approval of the site plan.

Plaintiffs’ Spot Zoning Challenge

The City of Framingham’s R-4 Zoning District, the City’s largest zoning district, contains the City’s least dense and largest lots. The bylaw allowed single-family homes, greenhouses, and other horticultural uses, as of right, in the R-4 Zoning District. However, prior to the 2018 Amendment, the bylaw did not allow any manufacturing or industrial uses as of right in the R-4 Zoning District. The 2018 Amendment expanded the allowed uses by adding a footnote to the bylaw’s Table of Uses allowing for marijuana cultivation and product manufacturing in the R-4 Zoning District.

The Plaintiffs challenged the 2018 Amendment on the basis of spot zoning. Spot zoning occurs when there is “the singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.” Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 108-109 (2003). Such selective zoning violates the uniformity requirements of G.L. c 40A, § 7, and “constitutes a denial of equal protection under the law guaranteed by the State and Federal Constitutions.” Id.

The Plaintiffs advanced an argument that the 2018 Amendment was adopted solely to benefit the Farm, relying only upon minutes of a City Council’s hearing on the proposed amendment. In rejecting the Plaintiffs’ argument, the Court found that, contrary to the Plaintiffs’ contention, the minutes in fact describe the amendment as benefiting farming and farmers, but no one farm in particular. The Plaintiffs further argued that the Farm is the only property in the R-4 Zoning District that meets the requirements of the 2018 Amendment, but the Defendants identified four other parcels in the District that meet the minimum acreage requirements of the 2018 Amendment. Therefore, the Court held that the Plaintiffs’ spot-zoning challenge failed as a matter of law.

The Plaintiffs lacked standing to appeal the Board’s site plan approval

To challenge a board’s decision under G.L. c. 40A, § 17, a plaintiff must show that they have been “aggrieved” by the decision. G.L. c. 40A, § 17. Section 17 presumes that an abutter to the property that is the subject of the challenged decision is “aggrieved” and an abutter retains that presumption unless or until the defendant rebuts the abutter’s standing.

There are several ways that a defendant may rebut an abutter’s standing under Section 17. In Rossen, the Applicant employed three such methods: (1) it argued that three of the ten harms that the Plaintiffs anticipate from the proposed Farm are not interests that the Zoning Act is intended to protect; (2) several of the alleged harms are not sufficiently particular to the Plaintiffs; and (3) the proposed Farm will not lead to the harms that the Plaintiffs fear. In an appeal under G.L. c. 40A, § 17, if the Defendant’s evidence rebuts an abutter’s claim of an injury, the Court will then analyze whether the abutter has provided credible evidence of that claim. Rossen at 12. It is important to note that in undertaking such analysis, the Court is not determining whether any of the evidence is true, but rather the Court undertakes a gatekeeping function and considers only the quality and quantity of the evidence proffered by the parties. Id.

After disposing of the unprotected interests alleged by the Plaintiffs, the Court held that the Plaintiffs lacked standing based upon their six other claims: that the Farm will (1) result in construction of objectionable solar- or wind-power facilities; (2) harm the area’s water supply; (3) produce odors; (4) cause noise pollution; (5) increase traffic; and (6) damage the character of the neighborhood. The Court held that the Plaintiffs failed to proffer credible evidence to support such claims.

As more municipalities amend their bylaw to allow for the cultivation of marijuana, the Rossen decision provides some guidance in defeating a claim for spot zoning and also serves as a reminder of the importance of retaining competent experts in a zoning appeal to either rebut or substantiate an injury relative to a municipal board’s approval of an application.

A copy of the Land Court Decision can be found at this link.