MISC 07-338988

March 3, 2009

ESSEX, ss.

Scheier, C.J.


In this action, brought pursuant to G. L. c. 40A, § 17, Plaintiff appeals a decision of the Zoning Board of Appeals of the City of Peabody (Board) upholding the refusal of the Peabody building inspector to order Samga Corporation (sometimes referred to as “Samga”) to remove a fence it erected along the boundary between Plaintiff’s and Samga’s commercial properties. Plaintiff initiated this action on January 24, 2007, by filing a one-count complaint alleging that the Board’s decision was arbitrary, capricious, and legally untenable. On February 9, 2007, Samga filed its Answer, supporting the Board’s decision. [Note 1]

A two-day trial was held on August 26, 2008, and October 1, 2008. At trial this court heard the testimony of Trustee Edwin Quinn; Gerald Fitzgerald, an officer with the Peabody Police Department; David Gamache, a Peabody City Councilor; Raymond Blondeau, President of Samga; Joseph DiFranco, a fire inspector with the Peabody Fire Department; and David Sampson, Captain in the Office of Fire Prevention of the Peabody Fire Department. Twenty-one exhibits were entered in evidence. [Note 2] Defendant filed a post-trial brief on December 1, 2008.

Based on all the evidence and reasonable inferences drawn therefrom this court finds the following material facts:

1. Plaintiff owns property at 6-8 Bourbon Street in Peabody with access to Bourbon Street (Plaintiff’s Property). Plaintiff’s Property is improved by a parking lot and an office building, housing the Cambece Law Office, among other businesses. [Note 3] Adjacent to Plaintiff’s Property is another parcel, formerly owned by Plaintiff, upon which a Chinese Restaurant is located.

2. Defendant Samga Corporation owns registered land located at 535 Lowell Street in Peabody with frontage on and access to Lowell Street (Samga Property). The Samga Property is improved by a children’s recreation and arcade facility named “Bonkers.”

3. Plaintiff’s Property directly abuts the northern and western boundary of the Samga Property.

4. On July 9, 1992, the Peabody City Council granted a special permit benefiting the Samga Property (1992 Special Permit). The Special Permit allowed the Samga Property to be used for the operation of Bonkers, subject to certain restrictions. Restriction 6 provided, “Petitioner shall erect a fence and plant select vegetation in the area approximate to the lease hold, provide islands and a fire lane as proposed in Exhibit ‘A’ with the Department of Community Development overview for maximum effectiveness.” The Exhibit A incorporated by reference also showed a so-called “Entry Road” northwest of the Samga Property, leading from Plaintiff’s Property onto the Samga Property.

5. The 1992 Special Permit was challenged by Plaintiff in Superior Court Action No. 92-2285 (Superior Court Case). Pursuant to an agreement for judgment in the Superior Court Case (Agreement for Judgment), which dismissed Plaintiff’s complaint for lack of standing, the decision granting the 1992 Special Permit was modified. The modification revised Restriction 6 by deleting the words “erect a fence and,” and calling for the replacement of Exhibit ‘A,’ with a new Exhibit ‘A,’ to be filed with the City Clerk. The agreement also declared that the 1992 Special Permit, as modified, was “valid and of full force and effect.” The new “Exhibit A” did not contain the designation of “Entry Road” northwest of the Samga Property. The new exhibit also contained the language “This plan is to be referred to as ‘New Exhibit A’ defined in the Agreement for Judgment executed by all parties in [the Superior Court Case].” [Note 4]

6. There was no express provision in the Agreement for Judgment prohibiting Samga from erecting a fence anywhere on or around the Samga Property.

7. Plaintiff holds no easement across the Samga Property to Lowell Street, nor was the Samga Property ever intended to be a means of ingress or egress to Plaintiff’s Property from a public street. Plaintiff does have the benefit of an express easement for access to Bourbon Street over the two properties previously owned by Plaintiff on which a Chinese Restaurant and an office building are located.

8. During August of 2005, Samga erected a chain link fence, pursuant to a building permit, along the common boundary line of the Samga Property and Plaintiff’s Property. The purpose of the fence was to address the problem of tenants and customers of Plaintiff’s Property and also of the Chinese restaurant on the adjacent parcel from cutting through the Samga Property.

9. Prior to the installation of the fence, people often drove across the Samga Property to reach Plaintiff’s Property from Lowell Street or parked in the Bonkers parking area without permission and walked to Plaintiff’s Property. From time to time, patrons of the businesses on Plaintiff’s Property would drive at excessive speeds across the Bonkers parking area and at least one accident occurred there in recent years.

10. Also prior to the erection of the fence, fire department personnel would cut across the Samga Property to reach the buildings on Plaintiff’s Property. The traffic across the Samga Property caused a significant safety hazard for Bonkers. Many children and families walk across the Bonkers parking area every day and the increased number of people “racing across” the Bonkers parking area put the pedestrians at risk.

11. Following the erection of the fence, it is no longer possible to reach Plaintiff’s Property from Lowell Street by traveling across the Samga Property. The existence of the fence increases the safety of pedestrians and people driving through the Bonkers parking area.

12. On August 10, 2005, after the fence was in place, Peabody Fire Department Captain Sampson drafted a “Notice” advising Fire Department personnel of the new fence and guardrail and the change in access to Plaintiff’s Property which now would be reached via Bourbon Street instead of Lowell Street. At or about the time when the fence was installed, Inspector Joseph DiFranco wrote a memorandum stating in part that “there is adequate access and egress to the newly created rear parking lot abutting Bonkers Plaza” and that “other than some minor parking issues. . .there did not appear to be any fire hazards or issues. . . .”

13. On July 18, 2006, Plaintiff, through counsel, submitted a letter to the Building Inspector of the City of Peabody, Ralph Gandolfo, claiming that the placement of the fence on the Samga Property violated the terms and conditions of the 1992 Special Permit, as modified by the Agreement for Judgment, and requesting that the Building Inspector require Samga to remove the fence.

14. By letter dated July 24, 2006, the Building Inspector declined to take the requested enforcement action. He found that the 1992 Special Permit, as modified by the Agreement for Judgment, did not prohibit Samga from erecting a fence around the Samga Property.

15. On August 23, 2006, Plaintiff filed an application for review of the Building Inspector’s decision with the Board.

16. In conjunction with the Board’s consideration of this matter, the Fire Department was asked to further review and comment on the existence of the fence. On or about November 9, 2006, Inspector DiFranco prepared a further memorandum commenting upon the “safety ramifications of the fence.” Inspector DiFranco relayed several safety issues, including an increase in the congestion of vehicles on Plaintiff’s side of the fence, some limitation of fire department access to buildings, somewhat of an increase in fire department response times to Plaintiff’s Property from a public way, and aesthetic issues relating to the maintenance of the fence. This memorandum was presented to the Board for its consideration.

17. The Board held a duly-noticed public hearing on Plaintiff’s application on December 11, 2006, and voted to uphold the decision of the Building Inspector, and this appeal followed.

* * * * * *

As an initial matter, this court finds that Plaintiff has standing to bring the instant appeal for two reasons. First, Plaintiff is an abutter to the Samga Property. Abutting property owners are deemed “persons aggrieved” and afforded a well-established evidentiary presumption of standing under G. L. c. 40A, § 17. Standerwick v. Zoning Board of Appeals of Andover, 64 Mass. App. Ct. 337 , 341 (2005); Bedford v. Trustees of Boston University, 25 Mass. App. Ct. 372 , 376 (1988). In order to rebut a plaintiff's presumption, the defendant must come forward with enough facts to warrant a finding contrary to the presumed fact of aggrievement. Watros v. Greater Lynn Mental Health and Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995). This court finds that Defendant did not adequately rebut Plaintiff’s presumption of aggrievement. In addition, Plaintiff was a party to the Superior Court Case and executed an Agreement for Judgment, pursuant to which the Superior Court Case was dismissed. In the Agreement for Judgment, the parties stipulated that plaintiff “is not an aggrieved party within the meaning of M. G. L., 40A and lacks standing to bring [the Superior Court Case].” That case, as mentioned above, was an appeal from the issuance of the 1992 Special Permit, which showed a fence along the parties’ common boundary line. Plaintiff in this action is essentially arguing that the terms of the 1992 Special Permit, as modified by the Agreement for Judgment, specifically give rise to Plaintiff’s standing in the instant appeal because the issuance of the building permit is prohibited by the terms of the Agreement for Judgment. Plaintiff argues here that because the Agreement for Judgment removed the requirement that Samga erect a fence, Samga is actually prohibited from erecting any fence on the Samga Property. Under these circumstances, it would be nonsensical to deny that Plaintiff has standing to bring the instant appeal.

Defendant, on the other hand, argues that there was never a prohibition on erecting a fence and the Board’s decision upholding the Building Inspector should further be upheld by this court. With respect to the issues of harm caused Plaintiff by the erection of the fence, Defendant argues that Plaintiff’s claim is barred by the doctrines of issue preclusion and claim preclusion based on the Agreement for Judgment. For the reasons set forth below, this court need not reach Samga’s arguments on the issue of preclusion.

As this action is an appeal of the Board’s decision, this court engages in a de novo review under G. L. c. 40A, § 17. As the initiating complainant to the underlying enforcement action, Plaintiff has the burden of establishing that Samga is in violation of the terms of the 1992 Special Permit, as modified by the Agreement for Judgment. Morels v. Oak Bluffs Board of Appeals, 62 Mass. App. Ct. 53 , 57 (2004) (citing Brotherhood of Alpha Upsilon, Inc. v. Zoning Bd. of Appeals of Bridgewater, 15 Mass. App. Ct. 991 , 992 (1983)). Specifically, Plaintiff must show that Samga is not entitled to a building permit to erect a fence on the Samga Property, along its property line.

In accordance with the requirements of G. L. c. 40A, § 17, this court has made independent findings of fact without limiting itself to evidence introduced at the public hearing before the Board or affording evidentiary weight to the Board's findings of fact. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 114 (1985). This court may only disturb the Board’s decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976). Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954). This court finds and rules that the Board's action must be upheld for the reasons set forth below.

The evidence regarding the Agreement for Judgment amounts to the Agreement itself, which incorporates by reference a new ’Exhibit A’ to be inserted into the 1992 Special Permit. The Agreement for Judgment also modified the language of the 1992 Special Permit by deleting the words “erect a fence and” in Restriction 6. The question becomes, therefore, whether the modification of the 1992 Special Permit amounts to an outright prohibition against the erection of a fence on the Samga Property. This court finds it does not.

Plaintiff’s argument that the Agreement for Judgment in the Superior Court Action operates as a prohibition against any fence is an overly broad reading of the Agreement for Judgment, and is not persuasive. It is clear that neither Samga nor the Board viewed the Agreement for Judgment as creating a prohibition against the erection of a fence on the Samga Property. This court is persuaded that removing from the terms of the 1992 Special Permit Defendant’s obligation to build a fence along the boundary line of the Samga Property does not constitute a prohibition against erecting one pursuant to a valid building permit.

Because this court finds there is no outright prohibition against Samga erecting a fence, Plaintiff must show that the Board’s decision is otherwise beyond its authority. The Board’s decision was based, in part on safety issues. This court has found that, prior to the erection of the fence, the traffic cutting through the Bonkers parking area to reach Plaintiff’s Property was significant and generally traveling at an excessive rate of speed for a parking area servicing a children’s recreational facility. Such “cut through” traffic created a unique hazard to the children and families using the Bonkers parking area. This court has further found that after the fence was erected, patrons of the businesses on Plaintiff’s Property could no longer travel across the Bonkers parking lot to access Plaintiff’s Property. This greatly decreased the traffic on the Samga Property, as the traffic is now restricted to people going to Bonkers only. The decrease in traffic made the Bonkers parking area much safer for patrons on the Samga Property.

Plaintiff has shown that there may be a slight increase in fire department response time to Plaintiff’s Property due to the department’s inability to access Plaintiff’s Property by traveling across the Samga Property. The evidence at trial indicated that the travel time for a fire engine from Bourbon Street, the closest public street to the buildings on Plaintiff’s Property, was slightly longer than the response time when cutting across the Samga Property from Lowell Street. This court finds that the danger posed to the children and other patrons frequenting Bonkers outweighs the minimal increase in fire department response time to Plaintiff’s Property.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: March 3, 2009


[Note 1] Defendant members of the Board did not answer the complaint, participate in the trial, or file a post-trial brief.

[Note 2] At the close of Plaintiff’s case, and again at the end of trial, Defendant moved for dismissal pursuant to Mass. R. Civ. P. 41 (b) (2). That motion hereby is denied.

[Note 3] The businesses include a laundromat, a veterinarian, a nail salon, a hair salon, a dance studio, and two empty offices.

[Note 4] Trial exhibit 17, the recorded subdivision plan for Plaintiff’s Property, did not show an “entry road” onto the Samga Property. The original Exhibit “A” to the 1992 Special Permit did show an entry road northwest of the Samga Property.