Mark W. Corner, a partner in the Litigation Department at the Boston office of Riemer & Braunstein LLP, served as counsel to Castle Hill and Pilot Construction in the proceedings of the Land Court and the Appeals Court. His trial and appellate practice focuses on zoning, land use and other real estate related issues, as well as complex business disputes and insurance defense and coverage issues. He is a graduate of Bowdoin College and Boston College Law School, and is a former chairman of the Zoning Board of Appeals of the Town of Wayland. Corner would like to acknowledge his colleague, Robert C. Buckley, who represented Castle Hill in the Planning Board proceedings.
It is a well settled proposition of land use law that site plan review is a valuable tool in the regulatory process, providing municipal planning boards and zoning boards with oversight over uses permitted as a matter of right under local zoning by-laws or ordinances. It is equally well settled that in the regulatory process, municipal land use authorities are authorized to impose reasonable conditions on projects subject to permitting, including under the site plan review process. There may, of course, be a substantial difference of opinion between a landowner and a municipality as to what constitutes a “reasonable” condition imposed on a use permitted as a matter of right undergoing site plan review.
The right of property owners to rely upon uses permitted as of right in their developmental planning and the limits on the authority of a municipality to impose conditions on such development in the context of site plan review met on a collision course in Castle Hill Apartments Limited Partnership v. Planning Board of Holyoke. The Appeals Court acknowledged the limits of the authority of a municipality to impose such conditions, recognizing that such authority, without limits, is tantamount to the authority to deny such permitted use.
Castle Hill Apartments Limited Partnership (“Castle Hill”) is the owner of real property located at 83 Mountain Park Road in Holyoke, Hampden County, Massachusetts, consisting of 17.4 acres (the “property”). On or about Nov. 16, 2001, Castle Hill, as owner of the property, and Pilot Construction Inc. as general contractor, submitted plans to the City of Holyoke Planning Board for five multifamily structures, containing a total of 125 residential units, on the property (the “project”).
The project, comprising “multifamily dwellings,” is a use permitted as a matter of right in the RM-20 zoning district in which the property is located, since it comprises multifamily dwellings with a density of less than 20 units per acre. The project and associated structures, as proposed in Castle Hill’s application, complied in all respects with the dimensional zoning requirements applicable to the RM-20 zoning district, including setbacks, height and lot coverage. Castle Hill is also the owner of 56 existing townhouse-style rental units located on the property, each having two means of access and egress to grade, which were designed and built circa the 1960s and 1970s. The proposed units in the new structure were designed as “garden-style” apartments, with access and egress from each unit to common areas within the building, and without direct access to grade.
Under the ordinance in effect at the time when Castle Hill applied for a building permit, as well as under the ordinance as amended as of Feb. 19, 2002, an applicant for a building permit for new construction of a multifamily structure or development required a special permit from the Planning Board, as well as site plan approval by the Planning Board for a multifamily development consisting of more than one building lot. The Planning Board conducted public hearings in connection with Castle Hill’s application for the project over eight sessions, running from Jan. 10, 2002 until July 9, 2002, at which point the Planning Board closed the public hearing and the record on Castle Hill’s application.
Castle Hill’s application was subject to vehement opposition from abutters and other community members. Opponents of the project referred to the design of the proposed buildings as “barracks” style. Additionally, the mayor of Holyoke wrote the following to the city’s planning director about the project:
Anyone willing to support such a project does not have the best interests of the city at heart and cannot have my support and confidence. Therefore, I regretfully have to ask for letters of resignation from any board member and the planning director who are inclined to favor this fatally flawed project and not bring the full power of local zoning as well as Massachusetts General Law. [Emphasis added.]
During the course of the public hearing process, in response to concerns raised by the community and the Planning Board, Castle Hill reduced the number of units proposed for the project from 125 to 123.
On Oct. 3, 2002, the Planning Board voted unanimously, at a public meeting, to “approve” the plans submitted by Castle Hill. The Planning Board issued a Statement of Findings, dated Oct. 4, 2002, as well as a “Notice of Decision — Site Plan Review Approval with Conditions,” which was filed with the Holyoke city clerk on Oct. 4, 2002. In its Statement of Findings, the Planning Board expressly found as follows:
- “The completed site plan application package submitted by the [plaintiffs] meets the requirements of the Site Plan Review Ordinance, Section 10.0, and is sufficient for board review.”
- Castle Hill complied with the requirement that it submit to the Planning Board a “narrative giving details of the project. In addition to this narrative, we have asked for and received additional information.”
- Castle Hill is “in compliance with the use and dimensional provisions of the Holyoke Zoning Ordinance, the General Laws of Massachusetts and applicable rules and regulations of state and federal agencies.”
- Castle Hill is in compliance with the criteria “in regard to landscape and open space.”
- The Planning Board identified no problems with the project with regard to utilities, drainage, circulation, services, infrastructure demands or outdoor storage.
Such approval was hardly an endorsement of the project by the Planning Board. Despite having determined that the project had satisfied the objective requirements set forth in the site plan review provisions of the ordinance, and despite its unanimous vote to “approve” the project, the Planning Board went on to observe that the project’s
building design is not compatible with the existing development with regard to architecture, building materials and entranceways. The proposed units are of “barracks” style design (two entranceways per building) using vinyl siding and facade brick, yet the existing buildings use clapboard and brick with separate front and rear entranceways for each unit. For these reasons, the proposal is not compatible with the existing development, and does not comply with Section 10.1.7.3 of the Holyoke zoning ordinance.
The Planning Board purportedly conditioned its “approval” subject to, inter alia, the following condition subsequent (“Condition 8”):
8. Prior to the issuance of the building permit, the applicant shall submit to the board for its approval, an amended design that shall address the following:
(a) The building design shall be in harmony with the existing structures.
(b) The design shall incorporate the use of brick and clapboard construction materials consistent with the existing structures.
(c) The proposed structures shall vary in size, style and detail consistent with the existing structures on the parcel.
(d) Each unit must include a front and rear means of access/egress, specific to the existing dwelling units on the parcel.
(e) The color of each unit shall be consistent with the color scheme of the existing development.
In effect, the Planning Board’s “approval” of the project was expressly conditioned upon Castle Hill submitting, for the subsequent approval of the Planning Board, an entirely new plan, which would require the wholesale redesign of the “approved” plan. Indeed, the design changes associated with such a revised plan complying with the Planning Board’s condition that each unit “include a front and rear means of access/egress” would result in the project being converted from a “garden-style” (or, more pejoratively, “barracks” style) design to “townhouse”-style. As a consequence of converting the project from garden- to townhouse-style within the footprint approved by the Planning Board, the number of units on the property would be reduced from the 123 units appearing on the “approved” site plan to 40 to 60 units ― substantially fewer than the 348 units (including the 56 existing units on the property owned by Castle Hill) permitted on the 17.4-acre parcel at the permitted density of 20 units per acre.
In a classic case of being unable to “please all of the people all of the time,” two appeals were generated from the Planning Board’s decision. Castle Hill appealed to the Land Court from the Planning Board’s decision, pursuant to G.L. c.40A, §17, contending that the imposition of Condition 8 was beyond the authority of the Planning Board. Castle Hill protested that the Planning Board exceeded its authority by requiring each unit to have two means of access and egress per unit, pursuant to Condition No. 8(d), noting that such a major design change would have resulted in the significant reduction of the number of units that could be constructed on the property within the approved footprint from the 123 units ostensibly “approved.” Further, despite “approving” the plan, the board specifically required that Castle Hill submit a new plan in accordance with Condition 8, including the condition that each unit have two means of access and egress, for subsequent approval. Additionally, a number of abutters appealed from the decision in a separate action filed in Hampden Superior Court.
The Land Court held a hearing on Castle Hill’s Motion for Summary Judgment on Nov. 24, 2003, at which the court consolidated Castle Hill’s appeal with the abutters’ appeal from the Planning Board’s “approval” of the plan. On April 9, 2004, the Land Court (Sands, J.) issued a Memorandum of Decision and Order. The Land Court allowed Castle Hill’s Motion for Summary Judgment, ruling that the Planning Board had exceeded its authority with respect to the imposition of Condition 8(d) to its decision, which required Castle Hill to submit a new plan with separate access and egress for each unit, finding that such condition was an effective denial of the plan. The court remanded the matter to the Planning Board to make findings consistent with the summary judgment decision, and to issue a new decision within 90 days of the date of the Land Court’s decision. Specifically, the Land Court ruled that:
The Planning Board should be aware that the decision shall not be revised so as to limit the number of units in the project below the number proposed by the plaintiffs, particularly where the maximum number of units allowed on locus would be 348 and plaintiffs’ evidence shows a current decrease in number to 40-60 units (one-seventh of the maximum number allowed). [Emphasis added.]
The Land Court retained jurisdiction on the matter for review of the Planning Board’s revised decision. The Land Court also dismissed the abutters’ appeal, finding that they lacked standing as “persons aggrieved” by the Planning Board’s decision necessary to sustain an appeal under G.L. c. 93A, §17.
On June 23, 2004, the Planning Board conducted a subsequent hearing after remand by the Land Court. In connection with that hearing on remand, Castle Hill submitted a new plan, maintaining the garden-style units originally proposed, while addressing certain of the issues identified in the Planning Board’s original decision, such as building materials, rooflines and other aesthetic issues. After the hearing, the Planning Board issued a new decision, dated July 2, 2004, pursuant to which Castle Hill’s amended plan was “Approved under protest with conditions.”
The Planning Board noted in its decision following remand from the Land Court that it “reluctantly approved” the revised plan, continuing to find that its design “is not compatible nor harmonious with the surrounding neighborhood” due to the absence of separate access and egress for each unit. In that decision, the Planning Board also noted in Finding 5:
Landscaping plans are approved, however, the board is requiring a site visit to determine if the buffer is adequate to screen the adjacent single-family neighborhood.
Furthermore, among the conditions imposed by the Planning Board in Decision 2 were as follows:
8. Prior to the issuance of a Certificate of Occupancy, the proposed landscape buffer between the proposed development and Central Park Drive must be approved by the Planning Board as to the specific type, number and location of all plantings and materials.
9. Prior to the issuance of a Certificate of Occupancy and upon completion of the buildings, the planting will be done in accordance with the Landscape Plan and the Planning Board will have a site visit to determine if the plantings provide an adequate buffer to screen the abutting single family zoning district to the south.
10. After a site visit the Planning Board may require additional plantings and/or suitable screening materials to enhance the buffer.
Following the issuance of the decision following remand, the Land Court conducted a status conference on Sept. 7, 2004, at which time Castle Hill questioned Finding 5 and Conditions 8, 9 and 10 of the decision. The Land Court advised the parties to attempt to resolve these issues and stated that it would issue a judgment if the parties could not reach an agreement within 30 days ― which they could not do.
The Land Court (Sands, J.) issued a subsequent order on Oct. 13, 2004, reciting that “[i]n their status report filed with this court on Sept. 3, 2004, [Castle Hill] proposed new language in the findings and conditions in which they agreed to add additional plantings not to exceed 5 percent of the cost of landscaping. In light of the foregoing discussion, this proposal seems reasonable, and the court incorporates such language into this order and into the summary judgment decision.” The court accordingly entered final judgment on Oct. 13, 2004, modifying the decision after remand in accordance with its Oct. 13, 2004 order. The Planning Board filed a Notice of Appeal on Nov. 10, 2004, ironically appealing its own decision.
The Appeals Court decision
By decision dated March 31, 2006, the Appeals Court affirmed the decision of the Land Court. The Appeals Court upheld “the use of site plan approval as a permissible regulatory tool for controlling the aesthetics and environmental impacts of land,” but held that “[w]here the proposed use is one permitted by right the Planning Board may only apply substantive criteria … and may only impose reasonable terms and conditions on the proposed use, but does not have the discretionary power to deny the use.”
The Appeals Court acknowledged, however, that site plan review “is not without some teeth”:
A board … possesses discretion to impose reasonable conditions under a bylaw’s requirements in connection with approval of the site plan, even if the conditions are objected to by the owner or are the cause of added expense to the owner… In some cases, the site plan, although proper in form, may be so intrusive on the interests of the public in one regulated aspect or another that rejection by the board would be tenable. This would typically be the case in which, despite best efforts, no form of reasonable conditions could be devised to satisfy the problem with the plan and the judge conducting de novo review concurs in the conclusion. [Internal citations omitted].
The Appeals Court then went on to discuss what would constitute a “reasonable” condition imposed under site plan review to a use permitted as a matter of right. While multi-family dwellings, such as those proposed by Castle Hill, are a use permitted as of right in the zoning district in which the property is located, additional zoning relief was required under the City of Holyoke Zoning Ordinance. Section 7.4.6 of the ordinance requires a special permit and site plan approval for multi-family developments consisting of more than one building for dwelling purposes per lot. Pursuant to Section 10.1.1 of the ordinance applicable to all new multi-family housing, the purpose of site plan review is to “protect the health, safety, convenience and general welfare of the city by providing a mechanism to review plans for proposed structures and to ensure that development is designed or expanded in a manner that reasonably protects visual and environmental qualities of the site and its immediate surroundings.” Section 10.1.7(3) of the ordinance provides that “the architectural style shall be in harmony with the prevailing character and scale of buildings in the neighborhood through the use of appropriate building materials, screening, breaks in the roof or wall lines or other architectural techniques. Variations in detail, form and siting shall be used to provide visual interest and to avoid monotony. Proposed buildings shall relate harmoniously to each other with adequate light, air, circulation and separation between buildings.”
Against this backdrop, the issue before the Appeals Court was whether imposing a condition of two entrances per individual unit is a “reasonable” condition “to protect the health, safety, convenience and general welfare of the city … and to ensure that [design] reasonably protects visual and environmental qualities of the site and its immediate surroundings,” consistent with Section 10.1.1 of the ordinance. The Planning Board conceded that Castle Hill would have to completely reconfigure both the interior and exterior of each of the proposed buildings that it had “approved,” and lose more than one-half of the proposed units it would otherwise be entitled to as of right, but contended that reconfiguration of the project to “more appropriate building design” is “sensitive to the architectural structures” of the site and the abutting neighborhood, and “addresses the safety concerns the board had about access” and as such “was reasonable and appropriate under site plan review.”
The Appeals Court noted that the record was silent as to any “health, safety or convenience concerns” in the Planning Board’s decision, and particularly noted that “any evidence of safety issues arising from the use of two entrances for each building is conspicuously absent in the summary judgment record,” leaving for review the impact of “visual and environmental qualities of the site and its immediate surroundings.” The number of entrances is not an enumerated concern of site plan review, and the Appeals Court rejected the board’s assertion that the number of entrances is an inherent part of the building’s architecture or design in the context of site plan review. The Appeals Court expressly held that use of the catchall phrase of “other architectural techniques” as permitting the board to require a redesign of each building to provide multiple entrances was unrelated to the considerations of safety, health, environmental or aesthetic benefits to the neighbors. The court further noted that:
Reasonable conditions aimed at controlling noise or other environmental or visual impacts associated with the use of the entrances by multiple users, or the architectural design of the entrances themselves, may have been permissible under Holyoke’s site plan review criteria. Nonetheless, imposing a condition that requires Castle Hill to completely redesign the interior and exterior of each building to add multiple entrances to accommodate vague exterior aesthetic concerns is not reasonable, and exceeds the board’s authority. In addition, we share the judge’s concern about the impact of the conditions on the density of the project, which is not an enumerated consideration of the site plan review criteria.
The Appeals Court further noted that it “did not consider reasonable a condition imposed pursuant to site plan review that provides questionable aesthetic value and yet profoundly impacts the density of the project.”
The court noted that “the condition’s dramatic impact on the density of the project under the guise of harmonizing visual impacts is troubling,” and that issues of density are not included in the site plan review’s criteria because issues as to density, like issues related to the use itself, “were previously resolved in a legislative sense when the city enacted the ordinance permitting up to 20 units of multi-family residence per acre of a site in the RM zoning district.” Accordingly, issues of density, as well as uses permitted as of right, cannot be restricted through the site plan review process. Conditions restricting permitted uses and allowed density are not properly restricted by conditions unrelated to the enumerated goals of site plan review under the applicable zoning regulation. In that regard, the Appeals Court noted that:
The proposition that two entryways per unit would contribute positively to the visual impacts of the buildings is dubious at best. Although the board’s adoption of the label ‘barrack’ style to describe the proposed buildings connotes an unattractive, uninteresting and, perhaps, distasteful design, the actual site plan depicts colonial-like architectures with varied rooflines, shuttered windows, multiple decks, and attractive lighting and landscaping. The visual advantages achieved from adding multiple entrances to the proposed structures are not readily apparent from the record.
Several lessons may be drawn from the Castle Hill case. The Appeals Court acknowledged that the imposition of conditions on “as of right” use, through the mechanism of site plan review, is not “without teeth,” and does not allow development carte blanche. Reasonable conditions may be imposed through the site plan review process, to implement the explicit goals of such process set forth in the community’s extant site plan review regulations. The imposition of such reasonable conditions, however, must be tied to the authority of the board administering site plan review, and must be geared to achieve the goals identified in the by-law, such as the legitimate planning goals of safety, traffic control and the like. However, the imposition of such conditions cannot interfere with more specific rights and restrictions that have been legislatively imposed, such as density, dimensional and use restrictions in a zoning district that are authorized by the applicable zoning regulation. As noted by the Appeals Court, “[w]here the site plan involves a permitted use, the judge’s proper role . . . [is] to inquire whether the public [may] be protected to a degree consistent with the reasonable use of the locus for the permitted use, consistent with the allowed density.” A planning board, administering site plan review, only has authority to impact the density if the design flaw regulated by the condition was “so intrusive to the interests of the public in one regulated aspect or another that rejection by the board would be tenable” — a high standard indeed when dealing with uses permitted as of right.
Here, the Planning Board did not seek to regulate “health, safety, convenience or general welfare” through site plan review of the project — which was well within the density restrictions imposed by the Holyoke Zoning Ordinance. Instead, it sought to regulate the “visual and environmental qualities of the site and its immediate surroundings” — i.e., it sought solely to regulate aesthetics. In doing so, it impermissibly affected the density of the project, reducing it to below the level permitted as of right under the ordinance, and thus overstepped its bounds.
In sum, while the site plan review process has “teeth,” its regulatory appetite cannot exceed the limits and goals legislatively imposed through the site plan review regulations, or those regulations governing permitted uses and density.
 65 Mass. App. Ct. 840 (2006), further app. rev. denied, 447 Mass. 1101 (2006).
 See City of Holyoke Zoning Ordinance (hereinafter “Ordinance”), §§ 3.1, 4.3 (Table of Principal Uses).
 See Ordinance §6.2(f)(5) (in effect through February 19, 2002) and Ordinance §7.4.6 (effective as of February 19, 2002).
 The abutters’ appeal was transferred to the Land Court by interdepartmental transfer pursuant to G.L. c. 211B, § 9.
 The Land Court decision contains an extensive discussion concerning its jurisdiction to consider the Planning Board’s decision on site plan review at this state of the proceedings, noting that the Ordinance and the Decision itself submitted the decision to review pursuant to G.L. c. 40A, §17. The Land Court held that where a site plan for a use as a matter of right is denied, there is no need to first apply for a building permit, the denial of which would trigger an appeal under G.L. c. 40A, §§ 8 and 15, as a prerequisite to an appeal under G.L. c. 40A, §17. Compare with St. Botolph Citizens Committee, Inc. v. Boston Redevelopment Auth’y., 429 Mass. 1 (1999) and Quincy v. Planning Board of Tewksbury, 39 Mass. App. Ct. 17 (1995).
 2004 WL 837208 (Mass. Land Ct. 2004).
 The abutters also filed a Notice of Appeal, but did not prosecute the appeal, which was dismissed by the Appeals Court.
 The Planning Board sought further appellate review, which was denied by the Supreme Judicial Court.
 YD Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25, 31 (1970); Dufault v. Millenium Power Partners, L.P., 49 Mass. App. Ct. 137, 138-39 (2000)
 Prudential Insurance Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 (1986).
 A caveat: the Appeals Court noted that “[b]ecause site plan review is created by local ordinance or bylaw and not State statute, we recognize that the term does not have one meaning nor is the review process uniform from municipality to municipality.” See St. Botolph Citizens Comm., Inc., 429 Mass. at 8 n.9.
 The Land Court acknowledged that “while the Planning Board may not postpone a determination of a matter of substance as part of its decision, it may grant a permit and reserve to itself the right to review compliance with any conditions imposed.” See, e.g., Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 (1986); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 (1981). By remanding the matter back to the Planning Board, with instructions, it did not address directly whether the Board’s original decision was defective for that reason. The Appeals Court did not reach, and did not address, that issue.