SHIRLEY WAYSIDE LIMITED PARTNERSHIP v. TOWN OF SHIRLEY and RACHEL SIZER, JAMES THIBAULT, CHARLES GREEN, MARCIA KOVNER, and HENRY S. MILLER, as they comprise the Town of Shirley Board of Appeals

Introduction

Plaintiff Shirley Wayside Limited Partnership owns Shirley Wayside (“Wayside”), a mobile home park located on a twenty-acre site at 83 Clark Road in Shirley. Shirley’s zoning bylaw currently prohibits mobile home parks, but Wayside is a protected pre-existing non-conforming use. The bylaw allows expansions of such uses if two requirements are met: (1) the extension “shall not exceed twenty-five percent (25%) of its area on said lot as of June 16, 1988,” and (2) the board of appeals must find “that said extension, alteration, reconstruction or repair is not substantially more detrimental to the neighborhood than the existing non-conforming structure or use.” Bylaw § 2.8.4. The plaintiff applied for permission to add fifteen mobile homes to the sixty-four presently occupied at the park, [Note 1] contending that this proposed expansion met both requirements of § 2.8.4. The board’s decision reflects its agreement that the expansion fell below the 25% limitation, but the board denied the application “for the reason that the petitioner did not satisfy the burden that his expansion will not be more substantially detrimental to the neighborhood.” Board Decision (Oct. 12, 2005) (Trial Ex. 6) at 1 (¶¶ 3-5), 2. This case is the plaintiff’s G.L. c. 40A, §17 appeal from that denial.

The case was tried before me, jury-waived. As more fully set forth below, based upon the parties’ stipulation of facts, the exhibits, the testimony of the witnesses, [Note 2] and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that the plaintiff fully satisfied the requirements of Bylaw § 2.8.4 and the board’s denial of the plaintiff’s application was arbitrary and capricious. [Note 3] The board’s decision is thus ANNULLED and the board is directed to issue the § 2.8.4 permit. See Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 828 (1998). All claims against the town are dismissed, with prejudice. [Note 4]

Facts

The mobile-home park at 83 Clark Road in Shirley (Wayside) has been in existence for approximately fifty years. [Note 5] Mobile-home parks are currently prohibited under the town’s zoning bylaw, but Wayside pre-dates that prohibition and is thus a protected non-conforming use. [Note 6] G.L. c. 40A, § 6. The property is a little over 20 acres in size. [Note 7] Plaintiff Shirley Wayside Limited Partnership owns the land and the residents (who own the mobile homes) pay a monthly rental charge for the space they occupy. [Note 8] Residents and guests who stay more than fourteen days must be age 55 and over, as set forth and enforced through the park’s rules and regulations. [Note 9] There are currently sixty-four occupied mobile homes in the park, as well as an abandoned one, making sixty-five in total. [Note 10] All of the occupied homes are served by town water and sewer. [Note 11]

By application to the Shirley Board of Appeals dated June 16, 2005, the plaintiff sought a permit pursuant to § 2.8.4 of the town’s zoning bylaw (extensions of non-conforming uses) to expand the park by adding fifteen new mobile-homes and removing the abandoned one. [Note 12] All of the new homes would also be served by town water and sewer. [Note 13] That application was denied by the board in its decision dated October 12, 2005. [Note 14] The decision reflects the board’s consideration and finding of “the impact of the additional residents on the area and the infrastructure of the town,” the “possible economic burden on the school system as the tax base for trailer units is much less than the tax base for residential homes,” “the encroachment on the wetlands,” “the density of the existing area and expansion area,” and “the detrimental aspects to the neighborhood regarding density, groundwater runoff, property devaluation to the abutters and the heavy amount of traffic already on the road.” [Note 15] It reflects the board’s review of bylaw §§ 2.8.4 and 9.2.3 [Note 16] and its finding that the “expansion of 24.9% was too close to the 25% allowed under section 2.8.4, which left no room for error.” [Note 17] And it reflects the board’s consideration and finding of “the detrimental aspects to the neighborhood regarding density, groundwater runoff, property devaluation to the abutters and the heavy amount of traffic already on the road.” [Note 18] For these reasons, the board concluded that the plaintiff “did not satisfy the burden that this expansion will not be more substantially detrimental to the neighborhood due to the density of the expansion and the encroachment of the 25% rule” and thus denied the requested permit. [Note 19] The plaintiff timely filed a G.L. c. 40A, § 17 appeal of the denial.

Other pertinent facts are included in the analysis section below.

The Standard for a G.L. c. 40A, § 17 Appeal

In a G. L. c. 40A, § 17 appeal, the court is required to hear the case de novo, make factual findings, and determine the legal validity of the board’s decision based upon those findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). The court “gives no evidentiary weight to the board’s findings” and relies solely upon its own. Id. (citing Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). The court’s “function on appeal,” based on the facts it has found de novo, is “to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The board must have acted “fairly and reasonably on the evidence presented to it,” and have “set forth clearly the reason or reasons for its decisions,” in order to be upheld. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. at 312.

Even though the case is heard de novo, such “judicial review is nevertheless circumscribed: the decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts, 429 Mass. at 486 (citations omitted). In determining whether the decision was “based on a legally untenable ground,” the courts must determine whether it was decided on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference’ to the local board’s interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.

Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted). In determining whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board could” come to the same conclusion. Id. at 74. This step is “highly deferential.” Id. While “it is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling,” Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005) (internal quotations and citations omitted), and “a highly deferential bow [is given] to local control over community planning,” Britton, 59 Mass. App. Ct. at 73, deference is not abdication; the board’s judgment must have a sound factual basis. See Britton, 59 Mass. App. Ct. at 74-75 (to be upheld, the board’s decision must be supported by a “rational view of the facts”). If the board’s decision is found to be arbitrary and capricious, the court should annul the decision. See, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). Under those circumstances, the court may also “make such other decree as justice and equity may require,” which may include ordering permits to issue if all the requisites of such a permit have been met. G.L. c. 40A, § 17; see e.g., Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 828 (1998).

Analysis

Section 2.8.4 of the Bylaw

Shirley Wayside’s application was submitted pursuant to § 2.8.4 of the Revised Protective Zoning Bylaw of the Town of Shirley which states

Any other non conforming structure or use the change or alteration of which is not otherwise permitted as a matter of right by the provisions hereof, may be extended, altered, reconstructed or repaired, provided any such extension shall not exceed twenty-five percent (25%) of its area on said lot as of June 16, 1988, and that in each case the Board of Appeals, in accordance with the procedures of Section 9.2.3 hereof, shall find that such extension, alteration, reconstruction or repair is not substantially more detrimental to the neighborhood than the existing non conforming structure or use.

Notwithstanding anything contained herein to the contrary, such expansion of a structure or use permitted hereunder must be physically located within the perimeter of the lot as said perimeter existed and upon which the non conforming structure or use was situated on the date the structure or use originally became non conforming.

There are thus three steps to the analysis. First, the proposed expansion must be physically located within the perimeter of the lot as it existed when the use first became non-conforming. The parties do not dispute that this requirement was met. Second, a comparison must be made between the structures or use as they existed on June 16, 1988 and what they would be under the proposed expansion, and then a determination made of whether the proposal exceeds a twenty-five percent increase. The board’s decision concedes that the twenty-five percent threshold was not exceeded [Note 20] but, because the board contested it at trial, it is analyzed below. [Note 21] Third, under the procedures [Note 22] of bylaw § 9.2.3 (special permits), the board must consider whether the proposed expansion is “substantially more detrimental to the neighborhood” than the current structure or use. This part of the requirement tracks the language from G.L. c. 40A, §6, and thus the analysis will apply to both the bylaw and the statute. [Note 23]

The Proposed Extension Will Not Exceed a Twenty-Five Percent Increase in Structures or Uses

Currently, Wayside contains sixty-four ‘single-wide’ trailers, each measuring between 12’ by 56’ and 12’ by 70.’ Each proposed additional unit would be a ‘double-wide’ trailer, typically measuring 24’ by 46.’ The first part of the analysis is thus whether there have been changes or additions to Wayside since June 16, 1988, which (if so) must be considered in addition to the proposed changes. Richard Lannan, president of Lannan Company (plaintiff Shirley Wayside’s general partner), testified at trial that the only change since June 16, 1988 was the replacement of one mobile home with a larger one, for a net increase of 284 square feet. [Note 24] This is consistent with the records on file at the Registry of Deeds. [Note 25] For the defendants, Donald Farrar Jr., a town zoning officer and building inspector, testified that porches had been expanded and at least one mobile home had been enlarged at Wayside since 1988. [Note 26] However, his testimony was unclear, and he was not specific about dates, applications, trailer numbers, and increases in square feet. He claimed that he approved certain changes without applications. But the town, the board, and its zoning officers should possess some documentation showing any growth in the park since June 16, 1988, particularly since mobile-home parks had already been prohibited in the town for three years by that date. However, the defendants introduced no such documentation, not even notations made after the fact. Thus, I credit Mr. Lannan’s testimony that the only change since June 16, 1988 was a 284 square foot increase.

The relevant calculations can be made from the figures shown on a plan completed for the plaintiff in 2005 (the “Plan”). [Note 27] As reflected on that Plan, the existing structures comprise 69,028 square feet, 284 of which came after June 16, 1988. Thus, the June, 16, 1988 baseline is 68,744 square feet (69,028 minus 284). The proposed additional structures are 16,052 square feet, [Note 28] to which the post-June 1988 284 square feet must be added, for a total of 16,336. Accordingly, the proposed expansion would constitute approximately a 23.8 % increase, well under the 25% threshold. Bylaw § 2.8.4 provides that it is impermissible to exceed a 25% increase, thus creating a bright-line test. Being “too close” to that line, which the board used as a justification for denying the permit, is thus legally untenable. The plaintiff has satisfied this requirement, and no rational board could conclude otherwise.

The Extension Will Not Be Substantially More Detrimental to the Neighborhood than the Existing Nonconforming Structures and Use

The board’s denial was based on its conclusion that “the petitioner [plaintiff] did not satisfy the burden that this expansion will not be more substantially detrimental to the neighborhood due to the density of the expansion and the encroachment of the 25% rule.” Board Decision (Trial Exhibit 6) at 2. As demonstrated above, there is neither a factual nor legal basis for the board’s rejection based on the expansion’s being “too close to the 25% allowed under Section 2.8.4.” Id. at 1, ¶ 4. That test is “bright line” and the expansion passed it with room to spare. The board’s other conclusion — that the expansion was “substantially detrimental to the neighborhood” due to its “density” — was presumably based on the “findings” listed previously in the decision. Id. at 1, ¶¶ 3, 5. None withstand scrutiny.

Infrastructure

The first basis cited by the board in support of its denial was the impact it believed the additional Wayside residents would have “on the area and the infrastructure of the town.” [Note 29] There is no reasonable basis for such a conclusion. The mobile home park has long been connected to town water and sewer. [Note 30] So too would be the proposed new units. [Note 31] The majority of the connection cost was paid by a community development grant the plaintiff obtained for the town in 2004, and the plaintiff is reimbursing the town for the remainder through a $19,996.88 per year betterment fee plus interest ($6,399 for fiscal year 2007) that the plaintiff will pay for a twenty-year period. [Note 32] Moreover, according to the town’s zoning officer, the town sewer is available for the proposed expansion. [Note 33] Wayside built and maintains its own roads, is responsible for its own snow removal, and pays a private company for trash removal from the park. [Note 34] As discussed more fully below, the residents of the new mobile homes would add, at most, 75 additional vehicle trips per day to Clark Road. [Note 35] Considering all of these factors related to town infrastructure, there is no reason to deny the proposed addition of fifteen mobile homes to Shirley Wayside on those grounds, and no rational board could conclude otherwise.

Economic Burden on the School System and the Relative Tax Base

The board contends that the schools may become overburdened by the proposed expansion, and that the property tax revenue derived from that expansion will be insufficient to cover those expenses as compared to the allegedly higher property tax revenue that could be derived from newly constructed single-family residences. [Note 36] There is no rational basis for any such concern.

First, it is unlikely that the proposed expansion would cause any burden on the school system because Wayside residents must be 55 years or older. [Note 37] That age restriction is enforced, and visitors may not stay longer than fourteen days unless they are 55 or older. [Note 38] Thus, the only children who could conceivably live at Wayside would be children of the residents. Given the age of those residents, the numbers of such children will be few with still fewer, if any, of school age. The proposal would thus only increase the use of the schools by a minimal amount, if at all, and no rational board could conclude otherwise. Single-family homes will likely have far more school age children.

Second, Shirley Wayside and its residents pay their fair share of taxes. As noted above, they maintain and plow their own roads and dispose of their own trash, relieving the town of those responsibilities. They currently pay over $26,000 per year for the sewer betterment assessment, as well as property taxes on the underlying land and personal property taxes on the mobile homes themselves. [Note 39] Moreover, the board’s cost-benefit analysis — comparing the cost and revenues from mobile homes to the cost and revenues from single-family home development of the property — is both speculative (there was no such project before the board, and no indication of any possibility of such a project) and revealing of a not-so-hidden prejudice against mobile homes and their generally lower-income residents. [Note 40] If the principle underlying that type of comparison were valid, it could be used to prohibit almost any kind of development that requires a permit from the board.

Thus, Shirley Wayside is most likely paying disproportionately high property taxes relative to its residents’ use of the public school system and other town services. There is no reason to believe that adding fifteen mobile homes would change this, and no rational board could conclude otherwise.

Encroachment on Wetlands

A part of the rear portion of Wayside is designated as wetlands. Under Bylaw § 9.2.3, the board may consider the recommendations of the conservation commission in making its decision. [Note 41] Notably, the minutes from the August 17, 2005 public hearing reflect that the “conservation commission did not respond” in any way. [Note 42] During the public hearing on September 28, 2005, just moments before the board voted to deny the application, the recommendations of the conservation commission were read which expressed concern about whether the expansion would comply with the required 40-foot buffer zone from wetlands. [Note 43] This concern lacks a factual basis since Wayside has met the required 40-foot buffer zone for vegetation, as well as other requirements, including a 25-foot “do not disturb” zone for vegetative wetlands. [Note 44] In any event, the plaintiff has consistently maintained that it will submit a Notice of Intent to the conservation commission and comply with the commission’s directions [Note 45] which, to the extent well-founded, the commission has the power and authority to enforce. There was thus no evidence that these wetlands concerns would cause the project to be “substantially more detrimental to the neighborhood than the existing nonconforming structure or use,” and no rational board could conclude otherwise.

Groundwater Runoff

The board also cited groundwater runoff as a reason for denying the application. [Note 46] The only section of the bylaw that references that issue is § 9.2.3, which provides that the board may require the applicant to submit a storm-water management plan. As previously noted, that substantive requirement of § 9.2.3 does not apply to § 2.8.4 applications. [Note 47] Moreover, the Board did not require it until the September 28, 2005 public hearing, again, just moments before it voted to deny the application, [Note 48] strongly suggesting that it was a pretext for the denial since there was no way for the plaintiff to comply with the request at that time. There was no persuasive evidence offered at the trial to indicate that groundwater runoff will be a problem as a result of the expansion. Also, as stated above, the plaintiff has consistently maintained that it will submit a Notice of Intent to the conservation commission and comply with its requests. [Note 49]

Density of the Expansion Area

The Shirley Board of Health has promulgated specific regulations for mobile home parks, which apply here. Those rules require that each trailer have a minimum of 5000 square feet of space, and there be at least a 30-foot clearance between trailers. [Note 50] Those requirements are met by the proposed expansion, and nothing indicates otherwise. [Note 51] The property has over twenty acres, and the fifteen new mobile homes will be at its rear and well-screened by trees and other buffers. [Note 52] Thus, no rational board could conclude that the density of the proposed expansion is a reason to deny the plaintiff’s application, and the board’s professed concern again suggests pretext. [Note 53]

Diminution of Neighboring Property Values

The board found that values of neighboring properties would be reduced as a result of the proposed expansion. [Note 54] As the evidence showed, this will not be the case. At trial, James Marchant, a real estate appraiser and expert witness, testified for the plaintiff. Mr. Marchant viewed the Wayside mobile home park, its surrounding properties, and looked at the Multiple Listing Service to compare the sale prices for residential homes in the area and the town generally over the previous twelve months. [Note 55] He testified that a home from which Wayside park was visible sold for $449,370. [Note 56] Compared to residential home sales in the town over the past year, that amount is significantly higher than the average sale price of $383,000. [Note 57] Additionally, several new homes are being constructed in the area, apparently not deterred by Wayside’s presence. [Note 58] Thus, I credit Mr. Marchant’s testimony that the Wayside mobile home park has not reduced real estate values in the area, and that the proposed expansion would also not have an effect. [Note 59] There are forested areas and wetlands on the Wayside site, and the proposed expansion would only be visible to a very limited extent. Additionally, the plaintiff plans further enhancement of those buffers, which would further minimize the visibility of the proposed expansion. [Note 60] The board presented no evidence to support its contention that project would reduce neighboring property values. I therefore find that there was no reasonable basis in fact for the board’s contention, and no rational board could conclude otherwise.

Traffic

Wayside is accessed from Clark Road, a public way. [Note 61] Clark Road has two lanes, one going in each direction. [Note 62] It is connected to other roads but is not a main highway. [Note 63] At trial, the plaintiff presented trip generation evidence in the form of a vehicle counting study, and through expert testimony which made use of the Institute of Transportation Engineer’s Traffic Engineering Handbook (hereinafter the “ITE Handbook”) and the Institute of Transportation Engineer’s Trip Generation Manual (hereinafter the “ITE Manual”). The traffic count was conducted by Accurate Counts, of which Steven DeLisle is the principal owner and CEO. [Note 64] Mr. DeLisle, an intended witness, was unexpectedly unavailable for trial but both parties agreed that his affidavit would be admissible into evidence. [Note 65] Accurate Counts placed an electronic vehicle counter in front of 85 Clark Road. [Note 66] It measured passing vehicles from 10:00 a.m. on January 22, 2007, until 11:00 a.m. on January 23, 2007. [Note 67] The study showed that 434 vehicles per day currently make use of Clark Road. [Note 68]

At trial, Susan Brackett, civil engineer and expert witness for the plaintiff, used the ITE Handbook and Manual to determine the number of additional vehicles that the proposed expansion would generate. Under the ‘mobile-home’ designation, each new mobile home would generate an additional five trips per day (half in, half out), for a total of 75 trips for the proposed expansion. [Note 69] However, under the ‘senior adult housing’ designation (which is likely more accurate given Wayside’s age restrictions), each mobile home would generate less than four trips per day, for a total of 60 trips per day for the entire proposed expansion. [Note 70]

The plaintiff did not present expert witness evidence about the level of service or traffic queuing, but all of the witnesses testified about their personal experiences with traffic in and around the Wayside park. Mr. Lannan, who visits Wayside regularly, testified that he has not personally experienced any problems entering or exiting the park, and has not had any problems with it in the general vicinity. [Note 71] Harry Dumont, Jr., Wayside’s manager, has been visiting at least once a week at various days and times. He has never encountered any traffic problems on Clark Road. [Note 72] Mr. Marchant, the real estate appraiser who visited the site, took photographs in the surrounding area. He experienced no problems with traffic, aside from having to wait to take a photograph of the area while one car passed. [Note 73] Even the board’s witness, Mr. Farrar, stated that he has neither experienced traffic problems on Clark Road nor with entering and exiting the Wayside park. [Note 74] Thus, there is no evidence of a traffic queuing problem on Clark Road — to the contrary, it is apparently not that busy.

The board cited the “heavy amount of traffic already on the road” as a ground for its decision. [Note 75] But the evidence neither shows a heavy amount of traffic currently on Clark Road, nor that the proposed expansion of Wayside Estates will have much affect on it, and no rational board could conclude otherwise.

Impervious Area Increase

Wayside is in the W2 Water Overlay District and thus subject to Bylaw § 4.13.3. That section allows by right any “expansion of impermeable area of existing buildings and grounds in addition to that which may be associated with paving of residential driveways and sidewalks, provided that the increase shall not exceed twenty-five percent (25%) of existing impermeable area or twenty-five percent (25%) of the lot, whichever is greater.” Bylaw § 4.13.3(c)(2). [Note 76] As shown by the Plan, the impervious (or “impermeable”) area increase resulting from the proposed expansion and the total impervious surface area of the park (including the existing area and the proposed expansion) compared to the lot area would both be less than 25%. [Note 77] At trial, the Board argued that the pond and wetlands on the property should be excluded from the calculations (which would bring the figure over 25%), but the bylaw makes no such exclusion. Instead, it expressly directs that the calculation be made with respect to “the lot”, Bylaw § 4.13.3(c)(2), and the bylaw defines “lot” as “a single area of land in one ownership throughout defined by metes and bounds or boundary lines as shown in a recorded deed or on a recorded plan.” Bylaw § 11.18. Wayside fits this definition, pond, wetland, and all. [Note 78] Moreover, the Board adopted the 24.9% impervious area increase in its findings. [Note 79] Bylaw § 4.13.3 prohibits increases that exceed 25 percent. It is a bright-line test, the plaintiff satisfied the requirement, and no rational board could conclude otherwise.

Conclusion

For the foregoing reasons, I find and rule that the plaintiff satisfied the relevant criteria and the board acted arbitrarily and capriciously when it denied a permit under § 2.8.4. That denial is therefore ANNULLED and VACATED, and the case is remanded with instructions that a § 2.8.4 permit promptly be issued. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 1 May 2009