11 Mass. App. Ct. 927

February 3, 1981

This is an appeal by the board of appeals of Falmouth (board) from a judgment of the Superior Court annulling the board's decision to deny a special permit to build an outdoor swimming pool adjacent to the Sheraton Inn in Falmouth, a motel owned and operated by Gifford Realty Trust. We reverse.

Under G. L. c. 40A, Section 21, as in effect prior to St. 1975, c. 808, Section 3, and its successor, G. L. c. 40A, Section 17, a decision of the board "[could] be disturbed only if it [was] based on `a legally untenable ground' . . . or [was] `unreasonable, whimsical, capricious, arbitrary.'" Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969). Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 (1954). If reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit, it was the board's decision, and not the court's, which was controlling. Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 (1977). Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 487-488 (1979).

While evidence presented (which, as is usual in these cases, substantially repeated the evidence before the board) to the court did not compel a conclusion that noise generated by people using the proposed pool would have an adverse effect on the neighborhood, it warranted such a conclusion, and the judge should not have substituted his judgment for that of the board's on that score. Subaru, at 487-488. It was the duty of the board to consider what adverse effects on the neighborhood the proposed used might produce. (See Falmouth zoning by-law, c. 401, Section 21[E][2][1978].) This is not a case where the board based its decision on a legally untenable ground (see , e.g., Tambone v. Board of Appeals of Stoneham, 348 Mass. 359 [1965]; MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 518-519 [1976]) or was arbitrary (see, e.g., Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 [1962]). The board properly considered the future effect of the proposed pool on the neighborhood (Humble Oil & Ref. Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 606 [1971]; Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. at 154-155), and the evidence was not too speculative. Dowd,

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at 154-155. The applicant's argument that because Falmouth has an antinoise by-law, the zoning by-law may not also be interpreted so as to regulate noise is without merit. See Hume v. Building Inspector of Westford, 355 Mass. 179 , 181 (1969). The final judgment is reversed, and a judgment is to be entered declaring that the decision of the board did not exceed its authority.

So ordered.