ARTHUR CODDENS and JOAN M. CODDENS v. ROBERT CINGNETTI, ROBERT PARISEAU, MEIKE OLIN, JOSEPH MIELE, WILLIAM NOLAN, REBECCA KILBORN and WILLIAM DUNCLIFFE, as they are members of the DANVERS ZONING BOARD OF APPEALS and DANVERSPORT YACHT CLUB MARINA, LLC

Introduction

This case concerns additions to the existing boat storage and repair facilities located at 107R Elliot Street in Danvers (the “Site”), owned by defendant Danversport Yacht Club Marina LLC (the “Marina”). More precisely, it is a G.L. c. 40A § 17 appeal by plaintiffs Arthur and Joan Coddens (the “Coddens”) from a decision by defendant Danvers Zoning Board of Appeals (the “Board”) granting the Marina a modification to its existing special permits, allowing it to construct an additional boat storage building at the Site, [Note 1] increase the number of paved parking spaces from 250 to 300, store an additional 100 boats on the pavement and in the new building, [Note 2] permit up to three trips per day by trailers hauling boats, [Note 3] and slightly extend the hours vehicles may enter and exit. The Coddens’ home is located at 109 Elliot Street, which is on the Site’s only access route. That access route, a paved two-lane private way leading from the Site to Route 62 (Elliot Street), is known locally as Parkers Island Road and will be so referenced in this Decision. As a formal matter, properties along that way have Elliott Street (Route 62) addresses.

Under the Danvers zoning bylaw, special permits may only be granted or modified if the zoning board finds, in the aspects at issue here, that the property is an appropriate location for the use or structures, the use developed will not adversely affect the neighborhood, and there will not be an “undue nuisance or serious hazard to vehicles or pedestrians.” Bylaw § 30.3. The Coddens allege that these criteria have not been met, making two arguments. First, they say the modifications will result in additional traffic on Parkers Island Road that will directly affect and harm them. Second, they claim that the additional boat building, the increase in parking and boat storage, and the extra roadway use authorized by the modifications would result in increased noise and odors which will also adversely affect them.

The Board and the Marina disagree. They contend that (1) the Coddens do not have standing to raise their objections; [Note 4] and (2) the Board’s decision allowing the modifications was well within its allowable discretion, was not based on a legally untenable ground, and was not an unreasonable, whimsical, capricious or arbitrary exercise of its judgment.

The case was tried before me, jury-waived, and I took a view. Based on the agreed facts contained in the parties’ pre-trial memorandum, the testimony, exhibits and stipulations admitted into evidence at trial, my observations at the view, the parties’ admissions in their post-trial memoranda, my assessment of the weight and credibility of the evidence admitted, and as set forth more fully below, I find and rule that the Board’s decision to approve the modification of the special permit was within its discretion and authority, was based upon legally tenable grounds, and was neither arbitrary nor capricious. As a result, I affirm the Board’s decision and dismiss the Coddens’ appeal in its entirety, with prejudice.

Facts

Defendant Danversport Yacht Club owns the site at 107R Elliot Street in Danvers, where it has operated a boat storage and repair facility for over twenty years. The facility is located at the southernmost tip of the Parkers Island peninsula, bordered on three sides by water (the Porter River). Access is over a paved, two-lane private roadway (Parkers Island Road) leading from the Site to Route 62 (Elliot Street). The yacht club itself is on a separate peninsula, connected to the Site by only a pedestrian bridge, with no direct roadway link between the two.

The Site has two abutters, both located immediately to its north: (1) a parcel of land owned by the Town of Danvers (“Town”) where material dredged from the river has been deposited, and (2) the southern edge of the Coddens’ property. There are no other businesses or residences between the Site and Route 62. However, there are several recreational fields and a school located on the opposite side of Parker Island Road from the Coddens’ residence.

The Marina does not perform any work near the northern edge of its property. Its boat launch, repair and maintenance activities are located in the Southwest corner of the Site, the farthest point from the Coddens’ parcel. The area nearest the Coddens is used solely to store boats, most of which are moved only twice a year (out of the water to the storage space in the fall; from the storage space to the water in the spring).

The Site has no direct frontage on a public way. The only over-land access to the property is over the private way (Parkers Island Road) which connects to Elliott Street (Route 62) at a T-intersection. This access roadway was constructed by the Marina across an existing easement. The intersection at Route 62 is controlled by a traffic light which is activated when a car, truck, or other vehicle on the private way approaching the intersection drives over a magnetic trigger under the pavement. There are thus no queues, back-ups, or delays for vehicles exiting Parkers Island Road. The Coddens’ property is located on Parkers Island Road near its intersection with Route 62, a major highway with much noise and traffic. Parkers Island Road itself is relatively quiet, used mainly by the Coddens, Marina customers and staff, and individuals using the school and ball fields. It is only crowded on game days when individuals attending the events at the ball fields park their cars along its western side. There is a gate across the road at the Marina property boundary which controls landward access to the Site.

The Site is zoned Residence II, which permits residences as of right and allows marinas by special permit. In 1987, the Marina applied for two special permits to operate a boat storage and repair facility. The Board granted the permits, subject to certain terms and conditions, in a Settlement Agreement executed on February 1, 1990. Among other things, the existing permit allows the Marina to transport one boat trailer along Parkers Island Road per day, for a total of 365 trips per year. Vehicles may access the Site from 7:30 a.m. until 8:00 p.m. during the months of April, May, and June, and from 7:30 a.m. until sunset during the rest of the year. These existing permits, the time for appeal from which has long since passed, are not in dispute.

The Marina filed an application with the Board to modify these permits on September 8, 2008. On October 20, 2008, after public hearing and a site visit, the Board voted to allow the modifications, and the decision was filed with the Town Clerk on November 3, 2008.

The modified special permit allows the Marina to construct “the boat storage building as shown on the plans submitted by the petitioner,” to increase the paved parking area (used primarily for winter boat storage) “from 250 spaces to 300 spaces,” “to store an additional 100 boats on the proposed [parking] pavement,” and slightly to increase the number of boat trailers per day and the hours vehicles may access the Site from Parkers Island Road. Specifically, as modified, the special permit would now allow the Marina to bring “three (3) trailers each way per day, for one year,” [Note 5] and “to change the public access times [to] 7:00 a.m. to 8:00 p.m. from June 1 thru September 30.” 2009 Special Permit Decision at 5-6. The gate may remain open at the discretion of the Marina from October 1 thru May 31. Id.

The Coddens timely appealed the Board’s decision to this court. One of the issues raised initially was the Board’s failure to comply with G.L. c. 40A §9, which requires that a zoning board recite the facts and reasons for its decision. On May 4, 2009, the Board met to discuss the adoption of amended findings to fulfill this requirement, and on May 13, 2009, filed an amended decision with findings that reflected “the board’s reasoning and decision.” 2009 Special Permit Decision at 7. That issue was thus mooted. The underlying merits of the decision, however, continued to be challenged.

The Coddens contend that the modifications to the special permit will result in a substantial increase in traffic along Parkers Island Road directly harming them, and that the new building, the additional parking spaces, and the increase in boat storage area will result in a substantial increase in noise and odors. All of this, they say, undercuts the Board’s determination that the modifications will not adversely affect the neighborhood and otherwise fulfill the other requirements necessary for issuance of a special permit.

As noted above, the Marina uses the Site for boat storage and repair as authorized by the existing special permits and has done so for over twenty years. This use is consistent with the historical use of the Site: the Marina’s predecessors also used it as a marina and for marina purposes.

The Marina owners also operate a yacht club, but that club is geographically separate and distinct from the Site. The club is located on a nearby peninsula, and while there is a pedestrian bridge across the water between the two locations, there is no direct vehicle linkage to the yacht club from the Site. It is rare that members drive to Site to access the yacht club. Generally, the opposite occurs.

There is presently on the Site (1) a lift for transporting boats out of the water onto the land, (2) a 20,000 sq. ft. building for boat maintenance, repair and storage, (3) a paved parking area used primarily for wintertime boat storage, and (4) a swimming pool. There are also 302 boat slips in the water for docking boats. [Note 6] The Marina presently stores 315 boats on the pavement and in the existing boat building. Membership to the pool is available exclusively to members of the Marina and the yacht club. Marina members have automatic membership to the pool. Yacht club members must purchase pool membership separately and, each year, about 60 of them do.

The Site has its greatest level of employee-related vehicle traffic in the fall and spring because that is when the great bulk of its boat maintenance work is performed. This is so because, at present, those are the only seasons most boats are accessible (boats are docked in the water, being regularly used, in the summer, and stored on land in shrinkwrap in the winter). In the spring, the Marina staff launches boats into the water, and in the fall boats are taken out of the water for winter storage. Extra employees are hired during these seasons to help with these tasks and to assist in maintenance activities. If the Marina is allowed to construct the additional boat maintenance building, it will be able to conduct maintenance throughout the entire year (spreading out its work) and the amount of employee traffic in the fall and spring (never great in any event) will thus somewhat decrease.

Most motor vehicle traffic from Marina members occurs in the summertime when boat owners come to the Site to access their boats or use the pool. This traffic will not increase much, if at all, as a result of the proposed modifications. This is so for two reasons. First, many (perhaps most) members walk to the Site via the pedestrian bridge from the yacht club. [Note 7] Second, and more fundamentally, it is because the same number of boats will be docked at the Site (the number of boats actually being used will thus not increase) and the proposed modifications have no effect on the pool or pool membership. The increase in the hours the Site may be accessed will have little, if any, effect on the Coddens.

Boat trailer traffic to and from the Site is presently well within current permit guidelines. Per the existing special permit, the Marina may only transport one boat trailer along the access road per day, not to exceed a total of 365 trips per year. The proposed special permit modifications would increase the daily trailer trips allowed from one to three, but would not increase the total amount of yearly trips allowed. It is unlikely that there will be more than a few scattered days when more than one boat trailer would access the Site since actual boat trailer traffic is significantly below the presently-allowed usage. Over the last six years, far from the 365 allowed, there has been an average of only 51 trailer trips per year. Moreover, boat trailer traffic on Parkers Island Road has almost no relation to the number of boats stored at the Site. In the last year only one boat was brought to the Site by trailer for storage. The rest of the trailered boats were brought for maintenance and this is unlikely to increase to any significant extent. This is because the vast bulk of boats using the Site either for storage, maintenance or repair come by water. They are taken from the water by the boat lift at the extreme southwestern tip of the peninsula (shielded from the Coddens property by the existing storage building), placed on trailers, and then pulled to maintenance, storage or repair spaces by small tractors. None of these water-originated boats use Parkers Island Road or pass by the Coddens’ house.

Given the small (if any) increase in traffic on Parkers Island Road arising from any of these sources, the increase in Site access hours will not have any significant impact on the Coddens. The gate will remain open at the Marina’s discretion from October 1 through May 31, but these are the months of least traffic. The special permit modifications allow vehicles to enter a half hour earlier than now from June 1 to September 30 (7:00 a.m. rather than 7:30 a.m.) but this is in broad daylight and may, in fact, be to the Coddens’ advantage since it may lessen whatever opening hour “queuing” currently exists at the gate. Setting closing time to 8:00 p.m. rather than “sunset” from June 1 to September 30 makes enforcement easier (8:00 p.m. is a set time) and is still well within daylight hours.

The noise from boat storage and maintenance at the Site is minimal and can barely be heard at the Coddens’ property, if at all. The Coddens can hear activity at the pool but can hear little, if any, of the activity at the boat storage area. The proposed modifications will not have any effect on the use of the pool. Therefore, the amount of noise heard at the Coddens’ residence will not change.

The Town uses the land north of the Marina and across the street from the Coddens as a deposit area for dredge spoils — the organic silt deposits that are a by-product of river dredging. These spoils give off an odor, particularly when they are wet. The tidal water which borders both the Site and the Coddens’ property (the Porter River) also gives off a constant odor. There was no credible evidence that any of the activities at the Site produce any smell which affects the Coddens. There was also no credible evidence that the proposed modifications will cause any additional odors which will affect them. Indeed, the additional pavement allowed by the modifications will cover a large area where dredge spoils had been deposited in the past.

Further facts are set forth in the analysis section below.

The Standard for a G.L. c. 40A §17 Appeal of a Grant of a Special Permit

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 upon those facts. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeals of Boston, 330 Mass. 766 , 679 (1953)); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). In making factual findings, “the judge is not allowed to give the board’s findings or decision evidentiary weight.” Josephs, 362 Mass. at 295 (citing Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 , 321-322 (1955)). After finding the facts de novo, the court’s “function on appeal” 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 law. If formal requirements have been met, the [board’s] decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973) (internal citations and quotations omitted).

In determining whether the decision is “based on legally untenable ground,” the court must determine whether it was decided

on a standard, criterion or consideration not permitted by the applicable statues 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-laws. 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 , 601-602 (1962). If it is not, it must be upheld. Roberts, 429 Mass. at 486.

In addition, in order to be upheld the “board must act fairly and reasonably on the evidence presented to it,” and “set forth clearly the reasons or reason for its decision.” Id. With appeals from the grant of a special permit, a board’s decision is given somewhat less deference than when considering the denial of a special permit. Id. When the appeal is from a decision granting a special permit, “not only must a board of appeals make an affirmative finding as to the existence of each condition of the statute or by-law required for the granting of the variance or special permit, but the judge in order to affirm the board’s decision on appeal must find independently that each of those conditions is met.” Id. at 311.

Analysis

The Marina is located in a Residential II Zoning District. In such districts, the bylaw permits, as of right, single family and two family dwellings, lodging houses with no more than two rooms, and minor home occupations, among other uses. The bylaw also permits the operation of marinas if the Board grants a special permit. The Marina received such a permit in 1990. At issue is the validity of the modifications to the permit approved by the Board in the decision being appealed.

The Bylaw outlines a series of conditions that must be met for the issuance or modification of a special permit. Before granting or modifying a special permit, the Special Permit Granting Authority (SPGA) (here, the Board) must be satisfied that:

1. The municipal water and sewer systems shall not be overloaded by the proposed use.

2. The public streets shall not become overloaded by the proposed use. If traffic is expected to exceed three hundred (300) vehicles per acre, a service road (or a divided entrance road, whichever is required by the SPGA) shall be provided.

3. The value of other land and buildings will not be depreciated by the proposed use.

4. The specific site is an appropriate location for the use or structures.

5. The use developed will not adversely affect the neighborhood.

6. There will not be an undue nuisance or serious hazard to vehicles or pedestrians, and adequate and appropriate facilities will be provided to ensure the proper operation of the proposed use, structure and condition.

7. The proposed use or structure will be in harmony with the general purpose of this by law.

Bylaw §30.3.

The Coddens did not dispute the Marina’s compliance with many of these conditions. In particular, they presented no evidence that the special permit modifications will overload the water and sewer systems, overload any public street, [Note 8] or depreciate the value of other land and buildings. Accordingly, I need only determine whether, in light of the facts found de novo, the Board’s findings and decision that (1) the Site “is an appropriate location for the use and structures to be allowed,” (2) the modifications “will not adversely affect the neighborhood, and will not be an “undue nuisance or serious hazard to vehicles or pedestrians,” (3) “appropriate facilities will be provided to ensure proper operation,” and (4) the modifications “will be in harmony with the general purpose of [the] bylaw,” were rationally based and neither arbitrary nor capricious. Special Permit Decision at 2. I so find.

The “adverse affects” alleged by the Coddens are traffic (on the private way), noise and odors. The proposed modifications are not likely to result in anything more than a de minimus increase in traffic. The construction of the additional boat building will decrease the employee traffic in the fall and the spring because it will allow the Marina to conduct boat maintenance throughout the year. At present the Marina employs six to eight maintenance employees year round, but brings in more employees during the fall and spring because of the significant increase in the amount of maintenance work. If the proposed modifications are allowed, maintenance work would be spread throughout the winter, and the Marina’s employee traffic in the fall and spring would be reduced. Car traffic, primarily in the summer, from people going to and from the boats at the Site will not materially increase since the number of boats docked in the water remains the same and many of those visiting their boats do so by walking across the bridge from the yacht club on the nearby, and separate, peninsula. As previously noted, stored boats are wrapped in shrinkwrap, effectively inaccessible, and thus visited rarely, if at all. Boat trailer traffic will not increase due to the proposed modifications because such traffic has no direct relation to the number of boats stored at the Marina. In the last year, only one boat was brought into the Marina to be stored. It is possible that trailer traffic could increase if the Marina began to perform maintenance work on additional boats brought in by trailer. However, because the board’s decision limits the number of trailers the Marina can transport each day, this will be minimal and the neighborhood will not be adversely affected. The increase in boat trailers from one to three each day is truly de minimus.

The Site is an appropriate location for the use and structures proposed. The bylaw recognizes that Marinas may be built in the district, and it is difficult to conceive of a better location for a marina. The proposed modifications reflect a continuation of the historic use of the Site, not a significant change in use. The Marina itself has operated there for over twenty years. In addition, the proposed modifications are internal to the Site and, for the reasons discussed above, will not substantially affect the surrounding properties.

The proposed modifications will not result in an undue nuisance or serious hazard to vehicles or pedestrians. As noted above, increased traffic on the access road will be de minimus if any. The Coddens claimed that there would be an undue nuisance due to increased noise and odor, but there is no evidence that the noise or odor from the Marina will increase, and, in fact, there was evidence they will both decrease. The noise from boat maintenance operations is likely to decrease because more maintenance operations will be conducted inside a building instead of in the open. Even at its current level, the noise from the Marina does not constitute a nuisance: Mr. Coddens testified he cannot hear the current boatyard activity. The proposed modifications will decrease the odors on the Site because much of the area where dredge spoils are currently stored will be covered by the proposed pavement.

In addition, “adequate and appropriate facilities will be provided to ensure the proper operation of the proposed use, structure and condition.” The Marina already has adequate facilities to ensure proper operation of a marina. The proposed modifications will not change the use or condition of the property, and the proposed boat building will enhance the Marina’s ability to ensure proper repair and storage operations because the boat building will allow the Marina to carry on repairs indoors.

In sum, the facts fully support the Board’s conclusion that the proposed modifications fulfill all conditions necessary under the Danvers zoning bylaw. The Board was thus neither arbitrary nor capricious in issuing the modified special permit. See Britton, 59 Mass. App. Ct. at 74-75.

Conclusion

For the forgoing reasons, I find that the decision of the Danvers Zoning Board of Appeals granting a modified special permit to the Danversport Yacht Club Marina is based on legally tenable grounds and is neither unreasonable, whimsical, capricious nor arbitrary. The Coddens’ claims are dismissed in their entirety, with prejudice. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 26 October 2010