LYNNFIELD — The town has prevailed in an important Land Court case filed by Boston Clear Water Company, LLC. The company is challenging a Zoning Board of Appeals (ZBA) decision that BCW is not a “public water supply” as defined by the town zoning bylaws and, as such, is not allowed use “as of right.”
The decision essentially prevents Clear Water (BCW) from expanding its operations.
“This is a very significant win for the town because a loss would have entitled Clear Water to operate its business anywhere in Lynnfield as of right (regardless of zoning), except the Elderly Housing District,” said Town Counsel Tom Mullen. “The company could have expanded its operation onto the adjoining two lots, which it or related entities have purchased, and could have purchased and branched out to other lots, perhaps even non-contiguous ones.”
Clear Water challenged the ZBA’s decision with an appeal in Land Court, titled Boston Clear Water Company, LLC versus Shaffer. The town filed a motion for summary judgment.
Justice Jennifer Roberts ruled in favor of the town on June 1, dismissing the action with prejudice.
The decision upheld the ZBA’s interpretation under the town’s zoning bylaws that a “public water supply” means a water system operated by a public entity, not a private entity like BCW. The ZBA argued that its interpretation, based on well-established law, is reasonable and entitled to deference.
In response, Clear Water contended that the ZBA interpretation was preempted primarily by state drinking water regulations and was arbitrary. The court disagreed.
“This much seems clear to the court: there is no expressed intent that these regulations preempt local zoning in the siting of public water supplies,” Roberts wrote. “To the contrary, the regulations embrace local zoning and non-zoning controls as a means of fostering their goal of safe, fit and pure water… add to this the long history of land use as a subject of local regulations, and the conclusion that the ZBL (zoning bylaw) is not preempted by state law insofar as it defines ‘public water supply’ is inescapable.”
Roberts found that BCW’s interpretation would require that other businesses with transient non-community water systems be treated as public water systems, and thus, allowable as of right in every zoning district in the town. This would affect not just Clear Water, but also other transient water systems, including restaurants, parks, golf courses and community centers.
“BCW’s interpretation, which in contrast to the interpretation adopted by the ZBA would wreak havoc with the town’s Table of Use Regulations, is unreasonable,” Roberts wrote. “The ZBA’s interpretation that ‘public water supply’ means a water system operated by a public-sector entity — not private or commercial entity — is reasonable and in accord with the two public water supply companies (Lynnfield Water District and the Lynnfield Center Water District) and the Water Company in town.”
The court noted that both water districts serve “municipal purposes,” while BCW has only one service connection — to the house of a former owner of the business — and that it was not designated as a transient non-community public water system until 2012. The court also noted that BCW owners and operators considered their businesses to be private water supply companies in their annual filings with the Board of Health for permits “to engage in the business of manufacturing or bottling carbonated…spring water.” Assessor’s records filed by BCW and predecessors indicate it serves a “store” use.
The court also rejected BCW’s contention that, because it makes its products available to the general public, it constitutes a “public water supply.”
Mullen noted that the case had ramifications for another Land Court case filed by abutter William O’Brien against the ZBA (O’Brien v Shaffer). O’Brien was contesting the board’s finding of a lawful, preexisting nonconforming use. The case, which had been consolidated with BCW’s, was severed and is still in progress.
“Had the town lost in this case, Mr. O’Brien’s case would probably have been dismissed as moot,” said Mullen.
Clear Water has 30 days to appeal the decision.
“I think they will appeal as they appeal everything,” Mullen said. “Legal costs never seem to be an issue for them. I believe the chances of success are extremely slim, but the results — if they are successful — could be significant for them.”
