From time to time, cities and towns must dispose of obsolete municipal buildings, usually by sale or redevelopment. A recent Land Court case out of Swampscott is instructive as to how municipalities should not go about this task.
In McLeod v. Town of Swampscott, the Land Court scrutinized the rezoning of a vacant school property from a single-family residential district to a “planned development district.” The two-acre property sits atop a hill overlooking the Atlantic Ocean, among single-family homes. The original schoolhouse was built in 1893 and has historical significance.
After considerable study, the town decided to sell the property to a private developer in a manner that would maximize the sales price and future tax revenues. The town singled out the property for rezoning, allowing the developer to build by right 41 residential units up to 60 feet high, without special permits or historical, age or affordability restrictions. The developer planned to demolish the entire building, including the historic schoolhouse, to make room for a multifamily project.
The abutters took umbrage, concerned about traffic impacts on their thickly-settled neighborhood with steep and narrow hillside roads. They filed suit in Land Court, arguing that the town’s rezoning was impermissible “spot” zoning in violation of the Massachusetts Zoning Act. The Zoning Act requires that zoning districts be “uniform within the district for each class or kind of structures or uses permitted.”
Court Rules Impermissible Spot Zoning
The Land Court agreed with the abutters. The court cited the seminal 1943 case Whittemore v. Building Inspector of Falmouth, where the Supreme Judicial Court ruled that “a singling out of one lot for different treatment from that accorded to similar surrounding land,” solely for the economic benefit of a single property owner, is impermissible spot zoning. The Land Court noted, however, that lots can be singled out for less restrictive treatment to promote the public welfare.
The town of Swampscott insisted that its rezoning advanced the public welfare, because the rezoning would diversify local housing options, creating smaller dwelling units for Swampscott’s “empty-nesters” seeking to downsize. The court was unimpressed, noting that the rezoning lacked an elder housing component. Swampscott had in fact rejected such a component, in favor of augmenting the property’s sale price and tax revenues. Alternatively, the town argued that increasing the town’s revenues, by itself, advanced the public welfare and legitimized the zoning change. The court disagreed.
The court acknowledged that zoning bylaws are presumed to be valid, but cautioned that judicial deference and restraint are not an abdication. According to the court, if the rezoning had required the developer to preserve the historic schoolhouse or to set aside dwellings for lower-income or elderly buyers, the rezoning may have passed muster. However, zoning changes designed solely to maximize the town’s economic return, without land use objectives tied to the public welfare, are invalid. For these reasons, the court ruled for the abutters, and ordered that the zoning change be stricken from the Swampscott zoning bylaw.
Although it decided against the town, the court offered guidance on avoiding future spot zoning challenges. Swampscott can return to the drawing board and draft a zoning change with historical preservation requirements and set-asides for elderly or low-income housing. It can also add a special permit requirement with easily satisfied conditions. Such changes should make the rezoning more palatable to the courts, but the resulting multifamily development, no matter how much it promotes the public welfare, will probably remain objectionable to the neighbors.
Christopher R. Vaccaro, Esq., is a partner at Looney & Grossman LLP in Boston. His email address is cvaccaro@lgllp.com.
