JOEL D'ERRICO v. PAIGE E. DUNCAN, JAMES CHILSON, DAVID LAMBERTO, NORMAN RISTAINO, and RONALD CALABRESE, as members of THE PLANNING BOARD OF THE TOWN OF FRANKLIN

This action was commenced by plaintiff, Joel D’Errico on June 13, 2007, appealing a decision of the defendant, the Planning Board of the Town of Franklin, pursuant to G.L. c. 40A, § 17. Plaintiff seeks to annul the decision denying his application for a special permit to construct a multi-family, residential dwelling on a parcel of real property, known as and numbered 47 Summer Street in Franklin.

A view of the property was taken in the presence of counsel by the Court on February 11, 2008, and trial began the same day in Council Chambers of the Town of Franklin Municipal Building. The testimony was reported. Testifying were Donald Nielsen, Peter Mooney, and Bryan Taberner. Eighteen exhibits were admitted into evidence. On April 11, 2008, defendants filed a post-trial memorandum and plaintiff filed his post-trial memorandum on April 14, 2008.

After reviewing the record before the Court, I find the following facts:

1. At the time of trial, plaintiff, Joel D’Errico was the owner of a parcel of land, known as and numbered 47 Summer Street in Franklin (the Property).

2. The Property consists of thirty thousand, eight hundred and seventy-four (30,874) square feet.

3. The Property currently contains a structure housing apartment units.

4. The Property is located in the General Residential V (GRV) zoning district as defined by the Zoning Chapter 185 from the Code of the Town of Franklin.

5. The GRV zoning district allows construction of a multifamily dwelling by special permit.

6. The maximum height allowed in the GRV zoning district is forty (40’) feet.

7. The maximum density allowed for a multifamily dwelling in the GRV zoning district is one (1) dwelling unit per one thousand (1,000) square feet.

8. On December 18, 2006, plaintiff filed a special permit request with the Planning Board of the Town of Franklin for the construction of a multifamily dwelling on the Property (the Proposed Project).

9. Pursuant to the regulations, plaintiff also requested site plan and special permit approval from the Planning Board for an increase of impervious coverage on the Property.

10. The Proposed Project seeks to construct five (5) additional apartment units on the existing structure of ten.

11. Pursuant to the Franklin zoning regulations, the maximum density allowed for the Proposed Project would be thirty (30) units.

12. The Proposed Project complies with all dimensional requirements of the Franklin zoning regulations.

13. On May 22, 2007, the Planning Board voted to approve the site plan.

14. The original proposal sought a structure thirty-eight feet high.

15. The Design Review Commission and the Planning Board requested that plaintiff make certain changes to the original proposal to accommodate concerns of abutters. The plaintiff altered the appearance of the southeastern side of the proposed structure to give it the appearance of the front of a building by adding windows, and door, and landscaping.

16. In addition, plaintiff reduced the height of the structure to thirty-one feet, ten inches (31’10”).

17. The height of the structure in the Proposed Project is consistent with the height of other buildings in the surrounding area.

18. On February 27, 2007, the Design Review Commission approved the Proposed Project.

19. The Property is located in close proximity to Franklin’s downtown area.

20. On May 24, 2007, the Planning Board voted to approve the special permit for an increase of impervious coverage.

21. On May 24, 2007, the Planning Board voted to deny the special permit for construction of the Proposed Project.

22. The reasons for the board’s denial were failure to meet the standard of review of section 185-45 E(3) of the Code of the Town of Franklin.

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G.L. c. 40A, § 17 provides, “The court shall hear all the evidence pertinent to the authority of the […] special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of […] such special permit granting authority […].” 40A, § 17. The Courts have held that an appeal pursuant to G.L. c. 40A, § 17 is a de novo review of a municipal board’s decision. Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990), review denied 408 Mass. 1103 (1990); see id. However, the review is somewhat circumscribed by the simultaneous obligation to pay deference to the decision of the municipal board in the interpretation of its bylaw. See S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976), review denied 370 Mass. 868 (1976). The Court may overturn the board's decision only if the decision is “[…] based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). However, where the Court’s finding of facts supports any rational basis to support the municipal decision, the decision must stand. Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 (1969); Britton, 59 Mass. App. Ct. at 75; Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 487 (1979).

Section 185-45 of the Code of the Town of Franklin sets the standard by which the Planning Board may issue a special permit. § 185-45. The board my issue such permits “[…] only upon written determination that the proposed use will not have adverse effects which overbalance its beneficial effects on either the neighborhood or the Town, in view of the particular characteristics of the site and of the proposal in relation to that site.” § 185-45 E(3). In making this determination, the Planning Board is required to consider, inter alia: “(a) Social, economical or community needs which are served by the proposal[] […]” and “(d) Neighborhood character and social structure. […].” §§ 185-45 E(3)(a) and (d).

It is undisputed that the Proposed Project has complied with all other aspects of zoning regulation in the Town of Franklin, either by right or by application and issuance of special permit. In addition, the parties have stipulated that the project meets all other standards under consideration in § 185-45 E(3), except for considerations (a) and (d).

Plaintiff argues that the Proposed Project will have a beneficial effect on the social and economic qualities of the area. Specifically, plaintiff states that the project will house residents who will bring revenues to local business within the downtown and to public transportation services. In addition, plaintiff states that the Proposed Project will provide revenue to the town through real estate taxes as well as through the economic benefits that accompany the revitalization of an area. In support of this argument, plaintiff submitted the testimony of civil engineer, Donald Nielsen. Mr. Nielsen testified that because of the proximity of the Proposed Project to the downtown, the residents would be able to walk to the center and would likely support local business, thereby, revitalizing the area.

Defendants argue that Mr. Nielsen is qualified only by a B.S. in engineering technology and his alleged expert opinion is nothing more than the speculation of a layperson. I disagree. Mr. Nielsen is the chief engineer at Guerriere & Halnon, a civil engineering firm. He has been employed at that firm for thirty-five years. As such he has significant practical experience, sufficient to make him an expert on civil engineering for the purposes of this litigation.

Plaintiff also argues that the Proposed Project will have a beneficial effect on the neighborhood character and social structure of the area. As evidence of this, plaintiff states that in drafting the proposal, he took into account the neighborhood and society in which the property is located. Specifically, plaintiff states that upon review of the Proposed Project by the Design Review Commission, he altered the appearance of the southeastern side of the proposed structure to give it the appearance of the front of a building by adding windows, and door, and landscaping, and he reduced its height.

In the view of this Court, plaintiff makes a compelling case for his project. As he has argued, the Proposed Project is well within the limitations of the Franklin zoning regulations. Nevertheless, the facts of this case allow an application of those regulations to deny the Proposed Project, and I cannot rule that the Planning Board acted inappropriately in so deciding.

Zoning Chapter 183 from the Code of the Town of Franklin grants the Planning Board a discretionary power to issue special permits, based not merely on an applicant’s compliance with the dimensional requirements of the regulations, but also upon consideration of certain criteria as they apply to the neighborhood in which the project is to be located. Using this standard, the Planning Board reviewed the plaintiff’s application for special permit and determined it to be lacking. Accordingly, I find and rule that the decision of the Planning Board was not based on legally untenable grounds.

Defendants argue that the Proposed Project contains too large a building and insufficient green-space, and therefore, the project would not be in character with the neighborhood and, therefore, would have an adverse impact on it. Defendants also point to the fact that the Proposed Project would be the second most dense development in the area. In support of their argument, defendants submit the testimony of the Franklin Director of Planning and Community Development, Bryan Taberner. Mr. Taberner testified that the construction of a three story structure and its orientation, together with the maximization of the footprint eliminating green space, would not be in keeping with the general character of the neighborhood.

Based on these facts, the Planning Board could reasonably have determined that the adverse effects of the Proposed Project outweighed its beneficial effects. Although reasonable minds may differ in this determination, the municipal board is in the better position from which to judge both the circumstances of the case and the needs of the community and, accordingly, has discretion. See G.L. c. 40A, § 4; Gulf Oil Corp, 355 Mass. at 278; Britton, 59 Mass. App. Ct. at 76; Subaru of New England, Inc., 8 Mass. App. Ct. at 487.

Plaintiff argues that the consideration of green-space and visual impacts of the Proposed Project are not proper considerations for the board. I disagree; these are precisely the kind of considerations authorized by § 185-45 E(3). Under that section, the Planning Board is required to balance all effects of a proposed project on the community. Plaintiff also argues that the Proposed Project serves the purpose of the GVR zoning district and, therefore, must be allowed. While it appears to be true that the GVR zoning district was intended to create a buffer between the Single Residential IV zoning district and the Commercial (C-1) zoning district, multifamily dwelling structures are not allowed as of right and the Planning Board has discretion to approve applications for special permits. Plaintiff does not have an unrestricted right to construct the Proposed Project and the Planning Board was within its authority to determine that the project did not meet the standard.

Accordingly, I find and rule that the Planning Board properly considered the Proposed Project and determined that it did not meet the standard of review under § 185-45 E(3).

CONCLUSION

For the foregoing reasons, this Court concludes that the Planning Board of the Town of Franklin properly determined that the Proposed Project did not meet the standard necessary for the approval of the application for a special permit, pursuant to the § 185-45 E(3) of the Code from the Town of Franklin. Although the Proposed Project complied with the dimensional requirements of the town’s zoning regulation, the board determined that the adverse effects of the Proposed Project on the neighborhood character and social needs of the area outweighed its beneficial effects. Plaintiff has not produced sufficient evidence before this Court to establish that this decision was arbitrary, and the Court, therefore, defers to the board’s discretion. Accordingly, the decision of the Planning Board of the Town of Franklin to deny the plaintiff’s application for a special permit is hereby AFFIRMED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: February 3, 2009