ROBERT CONLON, JUDITH CONLON, JOHN GOLDEN, ROBERTA CONLON, WAYNE MEDEIROS, SANDRA MEDEIROS, MICHAEL MELLO, MARIAH FITZSIMMONS-MELLO and ROBERT WILLIAMSON v. JOHN ROSA, ARTHUR GAGNON, JAMES O’ROURKE, ELIZABETH CHODKOWSKI, and WILLIAM BAPTISTA as members or alternate members of the SOMERSET ZONING BOARD OF APPEALS, THE TOWN OF SOMERSET, RICHMOND SOMERSET LLC, and THE RICHMOND COMPANY, INC.

These three actions, consolidated by order dated February 14, 2005, arise from the Richmond Company’s (“Richmond”) proposal to develop a Walgreens drugstore on the properties located at 296 and 346 Buffinton Street in Somerset. By unanimous decision dated December 31, 2003, the Somerset Zoning Board of Appeals (the “board”) granted Richmond a planned development approval, a variance, and a sign permit in connection with the project. The decision presumed that both parcels were zoned “business.” 346 Buffinton had been rezoned from “residential” to “business” by unanimous town meeting vote in 1999 and the most recently published zoning map indicated that 296 Buffinton was entirely in a “business” zone.

Miscellaneous Case No. 295907, brought by a group of neighboring residential property owners, [Note 1] seeks a declaration pursuant to G.L. c. 240, § 14A (Count I) and G.L. c. 231A, § 1 (Count II) that the town’s 1999 rezoning of 346 Buffinton from “residential” to “business” is null and void and appeals the board’s December 31, 2003 decision pursuant to G.L. c. 40A, § 17 (Count III). Miscellaneous Case No. 295932, brought by the owner of a neighboring commercial property leased to a Walgreens’ competitor, [Note 2] makes identical claims and seeks identical relief.

Although not initially plead, one of the issues the plaintiffs subsequently sought to raise in Miscellaneous Case Numbers 295907 and 295932 concerned the zoning status of 296 Buffinton Street. Richmond’s opponents contend that 296 is a “split” lot, with part of the lot zoned business and part zoned residential. Richmond claims that 296 is located entirely within the business zone district. Section 3.2.1 of the Somerset Zoning Bylaw (the “Bylaw”) provides that the boundaries of Somerset’s zoning districts are established “as shown on the map entitled Official Zoning Map, Town of Somerset, which together with all boundaries, notations and other data shown thereon, is hereby made a part of [the] bylaw.” Various rules of interpretation are given in Bylaw § 3.2.[5] a-d and § 3.2[5]e provides that “questions concerning the exact location of a district boundary shall be decided by the Board of Appeals.” I thus declined to address the “boundary line” issue until after the board had an opportunity to address it. The parties then petitioned the board for such a determination and, by a 2-1 decision dated November 3, 2004, the board ruled that 296 Buffinton was partially in a business zone and partially residential. Miscellaneous Case No. 303905 is Richmond’s G.L. c. 40A, § 17 appeal of that decision (Count I). Richmond’s complaint also seeks a declaration pursuant to G.L. c. 231A, § 1 that the Bylaw and Zoning Map, as construed by the board in the November 2004 decision, is arbitrary, unreasonable and unconstitutional as applied to the property (Count III). The residents were permitted to intervene to assert the contrary.

By order dated February 14, 2005, the three cases were consolidated and, by subsequent order, the issues they presented were bifurcated into two phases. Counts I and II of the neighboring property owners’ complaints and all of Richmond’s claims (i.e., all claims regarding the zoning status of the two lots) were grouped for trial as Phase I. The neighboring property owners’ G.L. c.40A, § 17 appeals from the board’s December 31, 2003 decision (their challenge to Richmond’s planned development approval, variance, and sign permit set forth in Count III of their complaints) were reserved for trial at a later time, if necessary (Phase II).

The Phase I issues were tried before me, jury-waived. For the reasons set for in my Decision on “Phase I” Issues (March 23, 2007), I found and ruled that the board did not apply proper standards and criteria and it acted arbitrarily and capriciously in determining that a portion of 296 Buffinton was zoned residential. The board’s November 2004 decision was therefore ANNULLED. As explained in my Phase I decision, all of 296 Buffinton is located within the business zone district. I further found that the town’s 1999 rezoning of 346 Buffinton from residential to business was a valid and proper exercise of its municipal powers, rationally related to the town’s general welfare, neither arbitrary nor unreasonable, and neither “spot zoning” nor against the intent of the town meeting. The neighboring property owners’ claims to the contrary (Counts I and II of their complaints) are therefore DISMISSED, with prejudice.

The allegations and claims in Count III of the plaintiffs’ complaints (their G.L. c. 40A, § 17 appeal of the board’s December 31, 2003 decision remained for trial and were tried before me, jury-waived. For the reasons set forth in my Decision on “Phase II” Issues (Nov. 21, 2008), I find and rule that, with one exception, the board’s decision was not “based on a legally untenable ground, [nor was it] unreasonable, whimsical, capricious or arbitrary.” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). Accordingly, it “cannot be disturbed.” Id. I thus AFFIRM the board’s December 2003 decision and DISMISS Count III (all of the plaintiffs’ remaining claims), with that one exception. That exception is the board’s ruling (based upon what the board reasonably believed were the affected abutters’ wishes, but contrary to the explicit requirements of the Bylaw), directing Richmond to put a slatted chain link fence on top of the wall it will construct between its property and the Medeiros property rather than a “continuous wall of solid appearance or tight evergreen hedge six feet high along or parallel to said lot line.” Bylaw § 6.10.2(a). Accordingly, I affirm the board’s decision contingent upon Richmond placing such a wall or hedge (Richmond may choose to do either) along the Richmond/Medeiros property line in accordance with the Bylaw’s requirements.

SO ORDERED.

By the court (Long, J.)