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. Shirleys 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 boards 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 plaintiffs G.L. c. 40A, §17 appeal from that denial.
The case was tried before me, jury-waived. For the reasons set forth in the May 1, 2009 Decision issued by the court (Long, J.), I find and rule that the plaintiff fully satisfied the requirements of Bylaw § 2.8.4 and the boards denial of the plaintiffs application was arbitrary and capricious. The boards 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 2]
By the court (Long, J.)
[Note 1] There is also an abandoned unit currently at the park which will be removed and replaced by one of the new mobile homes if the expansion is allowed.
[Note 2] The town was named as a defendant in the complaint, but none of the allegations in that complaint were directed against the town and no evidence was introduced at trial that would support a claim against the town.