WAYNE JOHNSON v. CARL KING, CHRISTOPHER CASEY, KAREN I. TENENBAUM, JOHN BENNING, WILLIAM MORIARTY, BARBARA SHEFETZ, ALAN LIPKIND, KENT HALLAWELL, and DAVID BENNETT, as Members of the TOWN OF MARBLEHEAD BOARD OF APPEALS

Plaintiff Wayne Johnson commenced this case on December 29, 2000, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the Defendant the Town of Marblehead Board of Appeals, which denied the Plaintiff’s application for a special permit concerning the continued existence of a single-family dwelling on a parcel of real property, known as and numbered 72 Bubier Road in Marblehead, owned of record by Plaintiff (Property). This case arises out of an enforcement action brought by John Schey and Ruth Schey, in Schey v. Board of Appeals of the Town of Marblehead, Land Court case number 95 MISC 221634, seeking to annul a decision of the Board of Appeals and have a building permit concerning 72 Bubier Road revoked and the house thereon removed. On May 10, 2000, the court (Kilborn, J.) ruled in favor of the Scheys, finding that the lot did not meet the lot width requirement of the Town of Marblehead Zoning Bylaw. The court ordered that the building permit be revoked but ruled that no order for the removal of the structure should issue before Plaintiff (Defendant in that case) had a reasonable opportunity to seek relief to bring the Property into compliance.

Subsequently, Plaintiff applied for a special permit from the Board of Appeals for the continued existence of his house on the nonconforming lot, and was denied. This appeal followed.

The facts of the present case are stipulated to, and so, the parties proceeded on a case stated basis. Oral arguments were held on June 15, 2009. No stenographer was present. The proceedings were recorded electronically by the Land Court’s digital audio recording system. On July 9, 2009, the court took a view of the Property in the presence of counsel. On August 10, 2009, Plaintiff and Defendant each filed a Post-Trial Memorandum. This is the matter presently before the court.

At oral arguments, counsel for the Scheys, Frank L. McElroy, requested that his clients be permitted to file an amicus brief in the case. The court stated that if the Scheys filed a motion to file an amicus brief, the court would allow it and consider their arguments. On August 12, 2009, without motion, the Scheys filed a Post-Trial Memorandum of Fact, Amicus Curiae. Plaintiff filed a Response to the Post-Trial memorandum of Fact of John and Ruth Schey on August 20, 2009. [Note 1]

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

1. Plaintiff Wayne Johnson is the owner of a parcel of real property and a building, known as and numbered 72 Bubier Road in Marblehead.

2. Prior to October 14, 1992, Plaintiff owned a parcel of land then known as 74 Bubier Road in Marblehead, containing what is now the Property.

3. At that time, 74 Bubier Road contained a single-family residence and a garage.

4. On October 15, 1992, Plaintiff recorded a plan of land dividing 74 Bubier Road into two lots. On February 24, 1995, Plaintiff recorded a second plan of land, again purporting to subdivide the overall area into two lots. The two plans contain slightly different boundary lines between the two lots, but this difference is not at issue in this case.

5. At all times relevant to this case, the Subdivision Control Law was not in effect in the Town of Marblehead.

6. The first lot contains the single family residence.

7. The second lot is the present-day Property, which then contained the garage.

8. By deed dated February 23, 1995, Plaintiff conveyed the first lot out separately.

9. On June 29, 1995, Plaintiff obtained a building permit from the Building Commissioner of the Town of Marblehead to build a single-family residence on the Property.

10. Pursuant to this permit, Plaintiff caused the garage to be demolished and erected a single-family dwelling which currently stands on the Property (House).

11. Now and at all times relevant to this case, the Property has been located in the S-R Single Residence Zone District under the Town of Marblehead Zoning Bylaw.

12. The Single Residence Zoning District allows single-family residences as of right.

13. Now and at all times relevant to this case, the Property as used for a single-family dwelling complied with all applicable dimensional requirements of the Zoning Bylaw, except for lot width.

14. On May 10, 2000, in an enforcement action brought by John Schey and Ruth Schey, abutters to the Property, the court (Kilborn, J.) annulled the decision of the Town of Marblehead Board of Appeals, finding that the Property did not meet the lot width requirement of the Zoning Bylaw.

15. Accordingly, the court ordered that the building permit be revoked but ruled that no order for the removal of the structure issue before Plaintiff (Defendant in that case) had a reasonable opportunity to seek relief to bring the Property into compliance. Upon appeal, the Decision was upheld on June 16, 2006, in Schey v. Board of Appeals of Marblehead, 66 Mass. App. Ct. 1112 (2006) (unpublished decision issued pursuant to Appeals Court Rule 1:28).

16. Plaintiff applied to the Planning Board for a special permit to allow his house to remain on the nonconforming lot.

17. On November 28, 2000, after a duly notice public hearing, the board voted to deny Plaintiff’s application. The Decision was filed with the Marblehead Town Clerk on December 13, 2000. This appeal followed.

18. The board’s decision recites Section IX.C.2 of the Zoning Bylaw.

19. The board’s decision summarizes the opinions of each of the board members present that day on the application for special permit.

20. Five members of the Board of Appeals were present for the hearing and vote on November 28, 2000.

21. On the question of whether the use meets the standards for the grant of a special permit, members Christopher Casey, Karen I. Tenenbaum, and John Benning voted yes and members William Moriarty and Carl King voted no.

22. On the question of whether to grant the special permit, Ms. Tenenbaum voted yes and Mr. Casey, Mr. Moriarty, Mr. Benning, and Mr. King voted no.

23. Section IX.C.2 of the Zoning Bylaw provides that in reviewing special permits for use and dimension:

The Board of Appeals shall consider the following standards:

a) The general purpose and intent of this Bylaw, and whether

b) The specific site is an appropriate location for such use or building; and

c) The use as developed will not adversely affect the neighborhood; and

d) There will be no nuisance or serious hazard to vehicles or pedestrians; and

e) Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

***

Sufficiency of the Findings of the Decision of the Board of Appeals

Plaintiff argues that the decision of the Marblehead Board of Appeals does not set forth sufficient findings to support the denial and, therefore, should be annulled. General Laws, chapter 40A, § 9 requires that a permit granting authority, upon reaching a decision on an application for a special permit, “shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question … and setting forth clearly the reason for its decision and of its official actions ….” The courts have interpreted this language to require a decision setting forth “substantial facts which rightly can move an impartial mind acting judicially, to the definite conclusion reached.” Brackett v. Bd. of Appeal of the Bldg. Dep’t of Boston, 311 Mass. 52 , 54 (1942); Shoppers World v. Beacon Terrace Realty, 353 Mass. 63 , 67 (1967) (citing Prusik v. Bd. of Appeal of Bldg. Dept. of Boston, 262 Mass. 451 , 457-58 (1928)). However, the courts have held that where zoning relief is denied rather than granted, such detailed findings are not required. MacGibbon v. Bd. of Appeals of Duxbury, 369 Mass. 512 , 515 (1976); see Josephs v. Bd. of Appeals of Brookline, 362, Mass. 290, 293 (1972); Brockton Pub. Mkt. v. Bd. of Appeals of Sharon, 357 Mass. 783 (1970); Sherman v. Bd. of Appeals of Worcester, 354 Mass. 133 (1968). A decision to deny a special permit application requires only a general statement of reason. Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 , 220 (1982); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246-47 (1996); see also MacGibbon, 369 Mass. at 515; Brockton Pub. Mkt., 357 Mass. 783 . Any permissible reason to deny the application will be upheld.

In the present case, the decision recites the standards that the Board of Appeals was required to consider under Section IX.C.2 of the Zoning Bylaw and then summarizes the opinion of each board member on whether the special permit should be granted. Mr. Casey reasoned that the size of the House should not be permitted. Mr. Benning similarly took issue with the size and location of the House on the lot. Mr. Moriarty specifically found that the size and location of the House are not consistent with the purposes and intent of the Bylaw. Mr. King described the issue as “borderline,” but eventually found that the House, as it now stands, should not be permitted. The size and location of the House on the lot is clearly the predominant reason for the board’s denial of the special permit. While the decision does not speak as a single voice, its reasoning is nonetheless discernable on the face of the decision, without need of deeper inquiry. When viewed in the tolerant light afforded a denial of zoning relief, it is clear that the board’s findings are sufficient. Accordingly, I rule that the decision of the Board of Appeals contains sufficient findings.

Review of the Decision of the Board of Appeals

General Laws chapter 40A, § 17 requires that “[t]he court shall hear all evidence pertinent to the authority of the board or 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 board or special permit granting authority or make such other decree as justice and equity may require.” 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246; Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the Trial Court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

Therefore, 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); MacGibbon, 356 Mass. at 639; ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis, 52 Mass App. Ct. at 356; ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

A special permit is “authorization to use property in a way that is identified as a special exception in a zoning ordinance.” BLACK’S LAW DICTIONARY, 1434 (8th ed. 2004). The purpose of the special permit is to provide flexibility to the rigid use classification of the Euclidean zoning scheme “by providing for specific uses which are deemed necessary or desirable but which are not allowed as of right because of their potential for incompatibility with the characteristics of the district.” SCIT v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 109 (1984) (citations omitted). This mechanism allows the municipality to oversee and control the manner in which such a use is implemented in order to tailor it its zoning district.

General Laws chapter 40A, § 9 requires that a town by-law “provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit.” However, there is no absolute right to a special permit. See MacGibbon, 356 Mass. at 638. Even if all the requirements for the grant of a special permit are met, a permit granting authority may still properly decline to grant the zoning relief. See, e.g., Humble Oil v. Bd. of Appeals of Amherst, 360 Mass. 604 , 605 (1971) (“The mere fact that the standards set forth are complied with does not compel the granting of a special permit ….”); Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 (1969); Pioneer Home Sponsors v. Bd. of Appeals of Northampton, 1 Mass. App. Ct. 830 , 831 (1973) (“the board, in the proper exercise of its discretion is free to deny a special permit even if the facts show that such a permit could be lawfully granted.” (citations omitted)).

In the present case, Plaintiff argues that the members of the board did not agree on the reasons for denying the application for special permit and, therefore, the decision is arbitrary and capricious. However, as previously discussed, it is clear that the members of the board who voted to deny the zoning relief were in agreement that the House should not be permitted because of its size and location on the lot. Plaintiff argues also that the decision is arbitrary and capricious because two of the members voted in the affirmative on the question of whether the use meets the standards required for the board to issue the special permit, but then voted to deny the permit. While it is true that Mr. Casey and Mr. Benning voted in this manner, these members were within their rights to deny the special permit. Mr. Casey and Mr. Benning’s votes are not evidence of an arbitrary and capricious decision. Plaintiff has no right to the special permit, and even if the use meets all the requirements under the Bylaw, the zoning relief may be properly denied.

It is not unreasonable to find that this House on the nonconforming lot is inconsistent with the purpose and intent of the Zoning Bylaw, is an inappropriate location for such use or building, or has an adverse affect on the neighborhood. Nor is it unreasonable for a permit granting authority, in this case, to chose not to exercise its authority to grant a special permit, because of the great potential for this House, as constructed, to be incompatible with the characteristics of the Single Residence Zone District. The board’s decision in this regard is due deference. Accordingly, I rule that the Plaintiff’s application for a special permit for the continued existence of the single-family dwelling standing on the Property is properly denied for the reasons of size and location on the lot, and I further rule that the decision of the Town of Marblehead Board of Appeals to deny the application was proper.

Plaintiff suggests that pursuant to G.L. c. 40A, § 9, the Board of Appeals was required to hold a vote on each of the standards delineated Section IX.C.2 of the Zoning Bylaw. However, there is no basis in law for this argument. G.L. c. 40A, § 9 provides that the “[t]he special permit granting authority shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question ….” There is nothing in the statute to suggest that each requirement for the grant of a special permit is a question upon which the board must vote. Instead, the question before the board was the overarching: should the zoning relief issue? This vote was taken and recorded in the negative, in this case. Therefore, the procedure and record undertaken by the board was consistent with the requirements of G.L. c. 40A, § 9.

Conclusion

For the foregoing reasons, this court concludes that the decision of the Town of Marblehead Board of Appeals was not arbitrary and capricious but proper and should be upheld. The findings contained in the decision were sufficient and the procedure and record undertaken by the board were appropriate. It is reasonable to find that the House is not permissible under the Section IX.C.2 of the Town of Marblehead Zoning Bylaw or that the House, as constructed, is incompatible with the characteristics of the zoning district in which it lies and, therefore, should not be permitted. Accordingly, the decision of the Defendant, the Town of Marblehead Board of Appeals is AFFIRMED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: September 24, 2009