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25-P-915 Appeals Court
CRG ACQUISITION, LLC, & another1 vs. PLANNING BOARD OF
HOLLISTON & another.2
No. 25-P-915.
Suffolk. February 13, 2026. - October 14, 2026.
Present: Sacks, Singh, & Toone, JJ.
Zoning, Site plan approval, Special permit, Permitted use, Bylaw, Judicial review. Municipal Corporations, By-laws and
ordinances, Planning board. Planning Board. Practice,
Civil, Summary judgment, Zoning appeal, Declaratory
proceeding. Declaratory Relief.
Civil action commenced in the Land Court Department on August 27, 2021.
The case was heard by Howard P. Speicher, J., on a motion for summary judgment, and the entry of judgment was ordered by Lauren E. Reznick, J.
Jason R. Talerman (Stephen J. Chaplin also present) for the defendant.
Donald R. Pinto, Jr., for the plaintiff.
1 Jon Delli Priscoli, as trustee of the New Hopping Brook Realty Trust.
2 Town of Holliston.
2
TOONE, J. Plaintiff CRG Acquisition, LLC (CRG), seeks to
develop a large warehouse in the town of Holliston (town).
After the town's planning board denied CRG's application for a
special permit and modified site plan approval, CRG and
coplaintiff New Hopping Brook Realty Trust (trust)3 sought
judicial review in the Land Court under G. L. c. 40A, § 17, and
also sought, under G. L. c. 240, § 14A, a declaration that its
proposed warehouse does not need a special permit because it is
a use permitted as of right under § III.G.1 of the town's zoning
bylaw, which applies to a "[w]holesale office or showroom,
including warehouse facilities."4 After a judge of the Land
Court granted summary judgment for CRG on its c. 240, § 14A
claim, a judgment entered declaring that CRG needed no special
permit and remanding its application for modified site plan
approval to the planning board. This appeal followed. We
conclude that, even though (1) neither the town nor the planning
board is entitled to deference for their interpretation of the
use tables in the zoning bylaw, (2) the town's position that
CRG's proposed warehouse is not covered by § III.G.1 is correct.
Accordingly, we reverse the judgment in favor of CRG on the
3 We refer to the plaintiffs collectively as CRG.
4 The town amended its bylaw in 2022, while this case was pending in the Land Court. We refer herein to the town's bylaw, as amended in 2016, that applied at the time CRG filed its complaint.
3
c. 240, § 14A claim and direct that judgment enter for the town
and planning board and that a declaration in accordance with
this opinion be entered.
Background. The pertinent facts in this case are
undisputed. CRG is the buyer in a pending purchase and sale
agreement to buy seventy-two acres of land from the trust. The
site is in the town's industrial zoning district. In 2019, CRG
applied to the planning board for site plan approval for the
development of an approximately 800,000 square foot warehouse
and distribution facility. The proposed project would have 423
trailer truck spaces, 170 loading docks, and 129 passenger
vehicle parking spaces.
In March 2020, after several public hearings, the planning
board approved CRG's site plan with thirty-one general and
special conditions. The planning board found that the
application for site review was consistent with its regulations
governing special permit and site plan submissions, and that the
project met the general conditions for approval of site plans as
specified in § VII.5 of the zoning bylaw. The planning board
noted in its site plan decision that the town's building
inspector "has expressed concern that ultimately the use may
require a Special Permit under the provisions of Section
4
[III.G.3] General industrial uses,"5 and one of the special
conditions of approval provided that, "[s]hould the Inspector of
Buildings find that the proposed use requires additional relief
under Zoning By-Laws Section III - Use Regulations, further
review by the Planning Board is required as is an amendment of
the record plan set."
In June 2020, CRG applied to the planning board for a
special permit, while maintaining that no special permit was
required. CRG also applied for amended site plan approval,
proposing to modify the previously approved site plan by
reducing the number of tractor trailer spaces and loading docks.
In July 2021, after holding eleven public hearings, the planning
board denied CRG's application for a special permit based on
concerns about traffic, noise, and negative impacts on the
town's historical and agricultural character and the character
of surrounding neighborhoods. The planning board also denied
CRG's application for modified site plan approval, reiterating
the same concerns and concluding that the application failed to
satisfy the general conditions for approval set forth in
§ VII.5.a-g of the bylaw.
5 As the planning board notes in its brief, its reference in the decision to § III.G.2 was "an apparent scrivener's error." It is, instead, § III.G.3 that applies to proposed general industrial uses of this size (occupying more than 15,000 square feet of floor area).
5
CRG filed this action in August 2021. The first two counts
of the complaint challenged, pursuant to G. L. c. 40A, § 17, the
planning board's denial of the special permit and its denial of
CRG's application for modified site plan approval. The third
count of the complaint sought a declaration under G. L. c. 240,
§ 14A, that CRG's proposed warehouse is a use allowed by right
under § III.G.1 of the bylaw and does not require a special
permit.
After CRG moved for summary judgment, a judge (motion
judge) allowed CRG's motion as to the third count of the
complaint. The motion judge found that the bylaw defined
"warehouse" for a reason and "that reason must include an intent
to define the use as listed in the By-Law's Table of Uses." The
presence of that term in § III.G.1 "and in no other place in the
Table of Uses" showed, in the judge's view, that "the principal
use of a property as a warehouse, as defined in Section I-E of
the By-Law, is allowed as an independent, principal use of
property as of right in the Industrial District."
The motion judge then dismissed the first count of the
complaint as moot and denied summary judgment on the second
count "because there is insufficient evidence on the record that
would allow the court to conclude as a matter of law that the
Planning Board acted arbitrarily or unreasonably in its denial
of CRG's application for modified site plan review." After the
6
parties jointly moved for entry of a final judgment, a second
judge allowed the motion and ordered entry of a judgment that
provided the declaration requested by CRG; dismissed the first
count as moot; and, with respect to the second count, remanded
CRG's application for modified site plan approval to the
planning board for further proceedings, "thereupon dismissing
Count II without prejudice."6
Discussion. We review the judge's summary judgment
decision de novo. Nunez v. Syncsort Inc., 496 Mass. 706, 709
(2025). We similarly review the judge's determinations of law,
including his interpretation of the zoning bylaw, de novo.
Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,
461 Mass. 469, 475 (2012) (Shirley Wayside).
1. Deference. Before turning to the merits, we must
determine whether the interpretation of the bylaw advanced by
the planning board and town in this case is entitled to
6 The judgment further states that the planning board "shall, on remand, keep open and hold in abeyance its consideration of the Application pending final disposition of the appeal of . . . so much of the Summary Judgment Decision as concerns Count III of the complaint. . . . Should the Town's Appeal fail and so much of the Summary Judgment Decision as concerns Count III of the complaint become a final judgment, the Planning Board shall" reopen proceedings and perform a substantive review of CRG's modified application. If, on the other hand, the town's appeal succeeds and "so much of the Summary Judgment Decision as concerns Count III is reversed," "the plaintiffs will not further pursue the project that is the subject of the Application."
7
deference. Although the judge ultimately concluded that the
defendants' interpretation is unreasonable, he acknowledged that
courts generally "give[] deference to a local board's reasonable
construction of its own [zoning] bylaw." The defendants contend
that deference applies and the judge erred by "impermissibly
substitut[ing] [his] own preferred interpretation of the Town's
Zoning Bylaw for the [planning board's] reasonable
interpretation." For its part, CRG argues that deference may
apply when a party challenges a local board's decision under
G. L. c. 40A, § 17, but not when it proceeds under G. L. c. 240,
§ 14A, and "there is no underlying zoning decision adopting an
interpretation of the local bylaw to which the court must (or
can) defer."
We conclude that, with respect to CRG's claim under
G. L. c. 240, § 14A -- the only one before us -- we owe no
deference to the defendants' position. We defer to a local
board's legal conclusions on matters within its authority,
including its reasonable construction of bylaws it is charged
with implementing. See Shirley Wayside, 461 Mass. at 474,
citing Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board
of Appeal of Billerica, 454 Mass. 374, 381 (2009) (Wendy's);
Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 566-567
(2014). CRG's first two claims, brought under c. 40A, § 17,
involved decisions within the planning board's authority: its
8
denial of the special permit and modified site plan approval.
By contrast, CRG's claim under c. 240, § 14A, seeks a
determination of a question which the planning board did not
have authority to decide: whether the proposed warehouse is a
use permitted as of right under the bylaw's use tables.
The bylaw provides that it is enforced by the building
inspector, and persons aggrieved by the building inspector's
decisions may appeal to the zoning board of appeals. See G. L.
c. 40A, §§ 7, 8; Stevens v. Zoning Bd. of Appeals of Bourne, 97
Mass. App. Ct. 713, 715 n.6 (2020).7 Although the planning board
serves as the special permit granting authority "for any Site
Plan approval application that also requires a Special Permit"
under the use tables,8 neither the bylaw nor the planning board's
regulations authorize the planning board to decide whether a
special permit is required in the first place. See McDonald's
Corp. v. Seekonk, 12 Mass. App. Ct. 351, 352-353 (1981) ("under
7 General Laws c. 40A, § 8, states that "[a]n appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken . . . by any person . . .aggrieved by an order or decision of the inspector of buildings, or other administrative official . . . . " General Laws c. 40A, § 1A, defines "permit granting authority" as "the board of appeals or zoning administrator." The town's bylaw also defines "permit granting authority" as the zoning board of appeals.
8 The bylaw designates the zoning board of appeals as the granting authority for other special permits.
9
the statute and by-law," planning board had "no role" in
determining whether intended use was permissible).
Consistent with this allocation of authority, the planning
board never took a position on whether CRG's proposed warehouse
requires a special permit. When the planning board approved
CRG's initial site plan, it acted pursuant to its authority
under its regulations and other provisions of the bylaw. It
noted the building inspector's concern that the proposed use
"may require a Special Permit" under § III.G.3 of the bylaw but
expressed no opinion on that issue itself. Similarly, when the
planning board later denied CRG's special permit application and
modified site plan approval, it did so based on the standards
set forth in its regulation for granting a special permit but,
again, did not address whether a special permit was required.
The planning board is not entitled to any deference on an issue
as to which it did not and was not authorized to make a binding
decision. See Ives Camargo's Case, 479 Mass. 492, 497 (2018),
citing Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 380
(2014) ("where the statute is not one that the agency
administers, no deference is due"). Contrast Doherty, 467 Mass.
at 566-567, 573 (deferring to planning board's interpretation of
bylaw it was required to apply in deciding whether to grant
special permit).
10
Nor is the town entitled to deference. General Laws
c. 240, § 14A, "specifically provides landowners with a cause of
action [against a municipality] to determine 'the validity of
. . . or . . . the extent to which any zoning ordinance, by-law
or regulation affects' a proposed use of their property."
Gamsey v. Building Inspector of Chatham, 28 Mass. App. Ct. 614,
615-616 (1990), quoting Banquer Realty Co. v. Acting Bldg.
Comm'r of Boston, 389 Mass. 565, 570 (1989). The town is thus
named as a defendant under that claim because it is the "city or
town wherein such land is situated," G. L. c. 240, § 14A, not
because it has authority to determine whether a special permit
is required. See Stevens, 97 Mass. App. Ct. at 715-717 (because
town selectmen "were without authority to adjust or determine
the proper enforcement of the bylaw," settlement agreement
approved by selectmen did not constrain zoning board of appeals
in determining bylaw's applicability).
In fact, the record does not show that CRG requested a
decision on the issue from the town, the building inspector, the
zoning board of appeals, or anyone else before filing this
action. Nor does the town contend that CRG needed to. See
G. L. c. 240, § 14A ("The right to file and prosecute such a
petition shall not be affected by the fact that no permit or
license to erect structures or to alter, improve or repair
existing structures on such land has been applied for . . . .");
11
Balcam v. Hingham, 41 Mass. App. Ct. 260, 267 (1996) (discussing
"narrow range of cases involving the 'validity and extent' of
zoning by-laws" in which party may seek relief under c. 240,
§ 14A, without exhausting administrative remedies); Banquer
Realty Co., 389 Mass. at 573; Gamsey, 28 Mass. App. Ct. at 616.
To be sure, just because parties may sometimes bypass the
usual administrative process by filing a claim under c. 240,
§ 14A, does not mean that they can necessarily bypass a local
board's expertise. Here, even though courts usually give less
weight to administrative interpretations developed during
litigation, see DeCosmo v. Blue Tarp Redev., LLC, 487 Mass. 690,
703 (2021), we would be inclined to give deference to the views
of the zoning board of appeals on the issue in light of "its
special knowledge of 'the history and purpose of its town's
zoning by-law.'" Wendy's, 454 Mass. at 381, quoting Duteau v.
Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664, 669
(1999). The zoning board of appeals is not a party to the
litigation, however, and there is no affidavit or other evidence
revealing its position. We also cannot assume that the town
speaks for the zoning board; chapter 40A recognizes that the
views of a zoning board of appeals may not always be shared by
other parts of town government.9 Accordingly, we give no
9 For example, G. L. c. 40A, § 17, fourth par., allows "any municipal officer or board" to challenge "a decision of the
12
deference to the defendants' position in interpreting the
relevant provisions in the bylaw.
2. Interpretation of the bylaw. "We determine the meaning
of a bylaw 'by the ordinary principles of statutory
construction.'" Shirley Wayside, 461 Mass. at 477, quoting
Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham,
382 Mass. 283, 290 (1981). We first look to the language of the
bylaw as the principal source of legislative intent. Shirley
Wayside, supra. If the meaning of the language is plain and
unambiguous, we enforce the bylaw according to its plain wording
"unless a literal construction would yield an absurd or
unworkable result." Id., quoting Adoption of Daisy, 460 Mass.
72, 76 (2011). "Terms used in a zoning by-law should be
interpreted in the context of the by-law as a whole and, to the
extent consistent with common sense and practicality, they
should be given their ordinary meaning." Hall v. Zoning Bd. of
Appeals of Edgartown, 28 Mass. App. Ct. 249, 254 (1990).
The issue at hand is whether CRG's proposed development --an 800,000 square foot warehouse facility in the industrial
board of appeals or any special permit granting authority" in court. See, e.g., Planning Bd. of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 163 (1958) (applying predecessor statute). The statute also authorizes a city or town to "provide any officer or board of such city or town with independent legal counsel for appealing, as provided in this section, a decision of a board of appeals or special permit granting authority." G. L. c. 40A, § 17, fifth par.
13
district -- is allowed as of right under § III.G, the bylaw's
table for "Industrial and Outdoor Uses," or whether a special
permit is required. See G. L. c. 40A, § 1A (defining "as of
right" as "development that may proceed under a zoning ordinance
or by-law without the need for a special permit"). In the
industrial district, § III.G.1 provides that a "[w]holesale
office or showroom, including warehouse facilities," is a use
permitted as of right, whereas § III.G.3 requires a special
permit for "[g]eneral industrial uses including manufacturing,
storage, processing, fabrication, packaging, and assembly that
occupy more than 15,000 square feet of floor area . . . ."10
We conclude that CRG's proposed warehouse is not a use
permitted as of right under § III.G.1 because it is not a
"wholesale office or showroom." Those two listed uses are
modified by the phrase that follows after a comma: "including
warehouse facilities." As a result of that modification, a
wholesale office or showroom is permitted as of right even when
it includes warehouse facilities as a component part: for
10Section III.G.3 also requires a special permit for the same general industrial uses that occupy less than 15,000 square feet but "involve the manufacture, storage, transportation, discharge or disposal of hazardous, toxic, or radioactive materials." Section III.G.2 provides that general industrial uses that occupy less than 15,000 square feet, do not involve such hazardous materials, and do not generate perceptible vibration or noise levels above a certain threshold are allowed as of right in the industrial district.
14
example, a showroom that displays merchandise with additional
inventory warehoused in the back. Our interpretation reflects
that "including" usually means that what follows is part of a
previously identified whole; the plural form of "warehouse
facilities" in § III.G.1 signifies that this phrase is not
intended to be the third in a series after the singular
"wholesale office" and "showroom"; and the comma "provide[s] for
the separation" of the "adjectival modifier from the noun[s]
modified." Taylor v. Burke, 69 Mass. App. Ct. 77, 81 (2007).
We are unpersuaded by CRG's position that the phrase
"including warehouse facilities" means that a third, distinct
use -- i.e., a standalone warehouse -- is also allowed by right
under § III.G.1. Following the judge's reasoning, CRG argues
that (1) its proposed project falls squarely within the bylaw's
definition of "warehouse" in § I-E -- "[a] building used
primarily for the storage of goods and materials, for
distribution, but not for sale on the premises"; (2) what the
judge termed the "sole inclusion" of that word in the table of
uses must be consistent with that definition; and (3) the
definition's use of "primarily" "precludes relegating [a
warehouse] to being allowed only when it is accessory to another
use." But § III.G.1 refers to "warehouse facilities," not a
"warehouse," and we presume that different terms in the same
statute or bylaw have different meanings. See Commonwealth v.
15
Williamson, 462 Mass. 676, 682 (2012); Petrucci v. Board of
Appeals of Westwood, 45 Mass. App. Ct. 818, 823 n.8 (1998). The
juxtaposition of "warehouse" with "facilities" indicates that
the term in § III.G.1 does in fact refer to an accessory use, as
opposed to a freestanding building.
Furthermore, § III.G.1 does not contain the only reference
to "warehouse" in the table of uses. Section III.D.11, on
"Commercial Uses," addresses "[m]ixed office and warehouse use
where not more than 20% of the gross floor area not to exceed
15,000 square feet is devoted to warehouse facilities,
packaging, or fabrication." That subsection's focus on mixed
uses further undermines the notion that the inclusion of
"primarily" in the bylaw's definition of "warehouse" precludes
accessory warehouse uses in the bylaw. We therefore do not
agree with CRG that a standalone warehouse must be allowed as of
right under § III.G.1 because "the term 'warehouse' was defined
for a reason."
For similar reasons, we reject CRG's theory that the
definition of "warehouse" as a building not used primarily for
the "sale" of goods and materials "on the premises" is
incompatible with allowing "warehouse facilities" to be included
with a "wholesale office or showroom" under § III.G.1. At the
outset, the town disputes CRG's premise that goods and materials
can be sold at a wholesale office or showroom. The bylaw does
16
not directly address this point, but CRG points to its
definition of "wholesale trade" as "[e]stablishments primarily
engaged in selling merchandise to retailers." Even assuming
that such sales are possible, recognizing that § III.G.1 allows
such an office or showroom to include "warehouse facilities" as
a component part would not, as CRG contends, render those
facilities "violative of the use as defined in the By-Law."
Again, we presume that "warehouse facilities" and "warehouse"
have different meanings under the bylaw, and limitations that
govern the primary function of a standalone warehouse do not
apply to warehouse facilities that are accessory to a wholesale
office or showroom.
As for CRG's argument that the warehouse does not fit the
description of "[g]eneral [i]ndustrial uses" for which a special
permit is required in the industrial district under § III.G.3 of
the bylaw, that provision lists several functions that are
typical of a warehouse, including "storage," "processing," and
"packaging." We reject the argument that warehouses do not
qualify as a "general industrial use" under § III.G.3 because
the term "warehouse" is not mentioned.
Lastly, the planning board's approval of a different site
plan in 1999 provides no support for CRG's interpretation of
§ III.G.1 in this case. Just as the planning board did not take
any position on whether a special permit is required for CRG's
17
proposed project, the record does not show that its site plan
approval in 1999 involved a determination of whether that
project was allowed as of right under the bylaw in effect at the
time.11 In addition, that bylaw did not list "[w]holesale office
or showroom, including warehouse facilities," as a separate use
in its table -- the subject of CRG's challenge here.
Accordingly, there is no basis to find that the town's
interpretation of § III.G.1 in this case involves the
application of "dramatically different standards to similarly
situated applicants," as would be required to support a claim of
arbitrary and capricious municipal conduct. Bask, Inc. v.
Municipal Council of Taunton, 490 Mass. 312, 320 (2022), quoting
Wendy's, 454 Mass. at 388.
Conclusion. The judgment entered in favor of the
plaintiffs on count three of the complaint is reversed. A
judgment shall enter for the town on that claim, along with a
declaration that the plaintiffs' proposed warehouse is a use
requiring a special permit under the applicable bylaw in the
11In 1998, the applicant requested a special permit notwithstanding its asserted "interpretation that" the bylaw's use table provision on general industrial uses "applies to this project thereby necessitating site plan review only." In its letter approving the site plan, the planning board did not say whether a special permit was required. CRG's assumption that the planning board "must have determined that the proposed warehouse use was allowed by right" has no basis in the record and is inconsistent with how the bylaw, then and now, allocated authority for interpreting the use tables.
18
industrial zoning district in which the proposed warehouse is to
be located.
So ordered.