SUSAN MULDOON vs. PLANNING BOARD OF MARBLEHEAD & another. [Note 1]

GRASSO, J. The Marblehead zoning by-laws (by-laws) require site plan review by the planning board (board) of certain construction in the town's shoreline districts. As part of its site plan review of Susan Muldoon's proposed reconstruction of her single family home, the board conditioned approval of Muldoon's plan on her (1) using wood clapboard or shingle, rather than brick, on the building exterior (the siding condition) and (2) positioning the house thirty feet from the southwestern boundary of the property rather than the 8.3 feet proposed and

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otherwise permitted under the eight-foot minimum setback of the applicable dimensional by-law provision (the setback condition). [Note 2] On Muldoon's appeal pursuant to G. L. c. 40A, § 17, see Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 279 (1986), a Land Court judge ruled that the setback condition was unreasonable and beyond the board's authority because it derogated from the uniformity requirement of G. L. c. 40A, § 4. [Note 3] The judge annulled the board's decision and remanded the case for entry of a new decision deleting the setback condition. [Note 4]

On appeal, the board and Timothy Havens, Muldoon's abutter, contend that the judge erred. We agree. The imposition, as a condition of site plan approval, of a setback condition that is more stringent than the minimum setback specified under the applicable zoning by-law is not thereby unreasonable as violative of the uniformity requirement of G. L. c. 40A, § 4. We reverse the judgment annulling the board's decision and remand for determination of the reasonableness of the setback condition under the site plan review criteria contained in the by-law. See Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. at 282 n.7 (judge determines legal validity of board's decision on facts found by her without being confined to evidence before the board).

1. Site plan review. Although not expressly provided by statute, site plan review is recognized as a permissible regulatory tool and a means for communities to control the aesthetics and environmental impacts of land use under their zoning by-law. See Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56, 57 (1997). Site plan review has to do with the regulation of permitted uses, not their prohibition. See id. at 57-59. "[I]f the

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specific area and use criteria stated in the by-law [are] satisfied, the board [does] not have discretionary power to deny . . . [approval], but instead [is] limited to imposing reasonable terms and conditions on the proposed use." Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. at 281-282, quoting from SCIT, Inc., v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 105 n.12, 106 (1984). The board is forbidden from entertaining any "standard, criterion or consideration not permitted by the applicable statutes or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003). A zoning by-law may require site plan approval for uses that are otherwise permissible as of right, provided the site plan review provisions of the by-law (a) set forth proper standards for review; (b) do not authorize prohibition of the permitted use; and (c) provide for regulation of the permitted use through reasonable terms and conditions. See Castle Hill Apartments Ltd. Partnership v. Planning Bd. of Holyoke, 65 Mass. App. Ct. 840, 841 (2006) (board limited to imposing reasonable conditions on use).

2. The criteria for site plan approval. Here, the site plan approval criteria are set forth in Section 200-37 of the by-law. [Note 5]

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That section mandates that the board consider, among other things, the general purpose and intent of the by-law; the extent to which architectural and design features are in harmony with the prevailing character and scale of buildings in the neighborhood and town (including, without limitation, building materials, screening, breaks in roof and wall lines, adequate light, air, circulation, and separation between buildings); and the extent to which the adverse effects on abutting lots, the immediate neighborhood, and the town are minimized, including, but not limited to, obstructions of views. The site plan approval provision authorizes the board to "impose any conditions deemed necessary to achieve the purposes of [the by-law]."

In applying these criteria, the board imposed the setback condition based on its specific finding that Muldoon's lot is ninety-two feet in width, leaving adequate space to locate the building farther away from the southwestern boundary line in order to provide for "improved light, air[,] . . . circulation and separation" between Muldoon's and Haven's adjacent homes. On appeal, the judge did not assess the reasonableness of the condition on that ground because she concluded that the setback condition "cannot be found to be reasonable" because it derogates from the uniformity requirement of G. L. c. 40A, § 4. Relying on Castle Hill Apartments Ltd. Partnership v. Planning Bd. of Holyoke, supra, the judge ruled that the setback condition imposed a dimensional requirement that was not subject to alteration by the board, because "such matters were previously resolved in a legislative sense when the [town] enacted the [by-law]."

We disagree. That the by-law contains minimum dimensional requirements is not dispositive of whether, in accordance with site plan approval criteria set forth in the by-law, the board may impose reasonable conditions that result in stricter dimensional requirements than would otherwise be the case. In Castle Hill, supra at 847, we noted that density was not among the factors listed for the board to consider. Here, by contrast, the site plan provision of the by-law specifically directs the board to consider (1) whether the architectural and design features of the proposed structure are in harmony with the prevailing character and scale of buildings in the neighborhood and town and afford adequatelight, air, circulation, and separation between buildings, and

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(2) whether adverse effects on abutting lots, the neighborhood, and the town, including obstruction of views, are minimized. We construe the by-law provision as empowering the board to impose reasonable conditions on site plan approval in order to achieve those goals even where those conditions impose dimensional requirements stricter than the minimum required by the applicable zoning by-law. What conditions, if any, might be deemed reasonable or whether the problem is so intractable as to admit of no reasonable solution requires careful factual analysis. See Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. at 283 (judge examines the proposal to see if the problem is so intractable as to admit of no reasonable solution).

Because the judge ruled that any condition of site plan approval that increased the minimum dimensional requirements of the by-law was unreasonable, she did not make detailed factual findings addressing the board's contention that the setback condition was a reasonable means of assuring "adequate light, air, circulation, and separation" between Muldoon's and Haven's properties, and that Muldoon's placement of her home 8.3 feet from Haven's sideline would have the effect of needlessly obliterating a major portion of Haven's view and block an important source of Haven's light and air. Nor did she consider whether the setback condition was reasonable in light of the by-law's site plan approval criteria regarding the extent to which adverse effects on abutting lots, the neighborhood, and the town (including obstructions of views) are minimized.

Accordingly, we vacate the judgment annulling the setback condition and remand for factual findings and determination regarding the reasonableness of the setback condition in light of the standards set forth in the zoning by-law.

So ordered.