Zoning decision upheld in court

By Nick Grabbe
Staff Writer

Published on March 09, 2007

The Massachusetts Appeals Court has validated Town Meeting's right to regulate development in Amherst through zoning, after an expensive five-year legal battle.

The court upheld the 2002 rezoning of flood-prone land in North Amherst to prevent development there. It overturned a 2005 lower-court ruling that favored the landowners.

The case could still be appealed to the Supreme Judicial Court. But on Monday, officials in Amherst were clearly pleased.

"This is a historic recognition by the courts that Town Meeting has the ultimate authority on land use decisions," said Anne Awad, chairwoman of the Select Board.

"It will go into case law and help other towns and property owners understand what is and is not available."

Awad was the only board member to support the rezoning at Town Meeting in 2002, and was influential in securing the 109-45 vote in favor. Select Board member Rob Kusner, then a Town Meeting member, was also an active supporter of the rezoning.

The appeals court deferred to Town Meeting in extending the limits of the flood-prone zoning.

"Controlling development on land subject to flooding and maintaining adequate flood storage area are reasons rationally related to land use regulation," states Justice Gordon Doerfer in the decision.

The 20 acres in question are between Meadow Street and the west side of Route 116. The land is owned by Leigh Andrews and Donald LaVerdiere, who hoped to develop it in accordance with its light-industrial zoning.

But Mark Power filed a petition article asking Town Meeting to change the zoning to Flood-Prone Conservancy. He said that development would threaten the viability of nearby farms, and showed Town Meeting photographs of flooding during a hurricane in 1999.

Members of the Planning Board and Select Board warned Town Meeting that the town would probably face a lawsuit if it rezoned the land. Andrews and LaVerdiere did sue in Massachusetts Land Court, and Amherst spent about $100,000 defending the rezoning.

But after a six-day trial in 2005, Justice Charles W. Trombley Jr. ruled in favor of the landowners. Their attorneys proved that Town Meeting engaged in "spot zoning" and "improperly singled out (the land) for more restrictive zoning treatment than its surrounding area without a rational basis."

Although some residents argued against spending more money on an appeal, then-Town Manager Barry Del Castilho decided to press the case, after consulting with the Select Board. The town spent at least $20,000 more on the appeal, Awad said.

Doerfer decreed that Town Meeting's action was valid.

"As there is sufficient evidence to show that flooding was a legitimate concern, we will not second-guess the town on its judgment as to the extent of predicted flooding and the resulting need for revision of the (zoning) line," he wrote.

"Although reasonable minds may differ, the revision has not been shown to be substantially unrelated to the public health, safety or general welfare, nor arbitrary or unreasonable," he wrote. "Rather, the enactment of the amendment constituted a valid exercise of the town's zoning police power."

Awad said Monday one reason she fought a proposal two years ago that would have abolished Town Meeting is that she believes it should have a role in land use planning. She's faced challenges over the past five years from residents who thought the rezoning put the town in jeopardy and caused it to spend too much money, she said.

"It seemed clear that it was the right position to take at the time," she said.

The ruling also represents a vindication of attorney Alan Seewald, who lost his position as town counsel last year over an unrelated case. He defended the town before the appeals court.

"This was a question of the authority and autonomy of Town Meeting as a legislative body," he said Monday. "We have re-established the fact that Town Meeting is a legislative body and its acts are entitled to the deference all legislative acts are entitled to."

Attorney Michael Pill, of Shutesbury, who represented the landowners in Land Court, said the ruling has "serious statewide implications."

He said he is recommending that their current Boston attorneys file a petition with the Supreme Judicial Court for further review.

"If this decision stands, it means that zoning can be used to prevent development of a single piece of land," Pill said Monday. "I think the appeals court made a mistake. It presents a serious threat to private property rights."