ORLANDO LOPEZ and ELIZABETH LOPEZ v. ROBERT MORIARTY, KRISTIN PALACE, ANTHONY PENTA, SCOTT DOW and LISA STERN TAYLOR,as they are members of the Town of Topsfield Zoning Board of Appeals, FRANK MARTINO and KRISTI MARTINO

Introduction

This case is plaintiffs Orlando and Elizabeth Lopez’s G.L. c. 40A § 17 appeal from a decision by the Topsfield Zoning Board of Appeals (“the board”) granting defendants Frank and Kristi Martino a special permit, with conditions, to operate an event and function facility at the former church at 4 North Common Street across from the Topsfield town green. The Lopezs live next door.

Under the Topsfield zoning bylaw, special permits may be granted if the board finds, in the aspects at issue here, that the requested use “is not detrimental to the public convenience or welfare[,]” “will not create undue traffic congestion or unduly impair pedestrian safety [,]”and “will not impair the integrity or character of the district or adjoining zones, nor be detrimental to the health, safety or welfare.” Bylaw § 5.04.B. [Note 1] The Lopezs, who represented themselves pro se, [Note 2] contend that the board’s decision “violates [their] right to due process, violates [their] right to quiet enjoyment of their property, is contrary to [their] safety and welfare, is based on a bylaw that allows unbridled fiat of the Zoning Board,” and granted a special permit “obnoxious and injurious to [them] and their property.” Amended Complaint at 5-6, ¶ 27 (Oct. 20, 2008). Accordingly, they ask this court to find that the decision was an abuse of the board’s discretion, arbitrary, capricious, contrary to the zoning bylaws and M.G.L. ch. 40A, and thus to vacate and annul that decision. The board and the Martinos disagree. They contend that the board’s decision allowing the special permit 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. The Lopezs’ challenge to the bylaw under which the special permit was granted (the legal basis, if any, for their “due process” and “unbridled fiat” claims) has previously been heard and dismissed, with prejudice, and is thus res judicata. Lopez v. Topsfield Bd. of Selectmen, 17 LCR 129 (2009), aff’d. 76 Mass. App. Ct. 1119 , Mem. & Order Pursuant to Rule 1:28 (Mar. 16, 2010). On the remaining claims, as more fully set forth below, based on the testimony and exhibits admitted into evidence at trial, my observations at the view, and my assessment of the weight, credibility and inferences to be drawn from that evidence, I find and rule that the board’s decision granting the special permit was well within its discretion and authority, was based upon legally tenable grounds, and was neither arbitrary nor capricious. That decision is thus affirmed and the Lopezs’ appeal is dismissed in its entirety, with prejudice.

Facts

The Martinos purchased 4 North Common Street from the Congregational Church in 1994. It is located between East Common Street and Route 97 (Main Street), directly across from the town green. The Martinos operate an event facility in the old church building where they host various private and public events, primarily weddings. Their kitchen, located on the building’s ground floor, caters all of those events. Some of the wedding ceremonies take place outside in the garden area, weather permitting. The receptions themselves are held indoors.

The facility is in the center of town near the main shopping area. As noted above, it borders the town green where summertime concerts are regularly held. Also bordering that green or close nearby (and thus close to the facility) are the town hall, a church, the Emerson Center, the Gould Barn, the Parson Capen House, several recreational fields, and large parking areas. The town hall contains municipal offices. The church holds regular services, events, weddings, baptisms and funerals. The Emerson Center regularly hosts functions, church assemblies and parties. The Gould Barn (an historic structure) regularly serves as a venue for concerts, weddings, parties and other functions. The Parson Capen House is a seventeenth century colonial house, operated as a museum with regular tours, historical reenactments, and weekly tea ceremonies. The recreational fields have organized baseball, softball, soccer and other games. The parking areas, as well as on-street spaces around the green and on nearby streets, are used for parking. Also nearby, within a block or two, are the Proctor Elementary School and the Topsfield Library. There are also a number of residences along the streets off the green. Some of those streets, like Main Street (Route 97), are major thoroughfares. The Lopez house is on the corner of Main Street and North Common Street, immediately next to the former church and separated from it by the Lopezs’ driveway and a solid fence erected by the Martinos.

The Martinos’ facility historically has served as a venue for functions and town events, both pre- and post- the Martinos’ ownership. It obviously was an active church before its sale, with regular church and community activities, and the Martinos have held aerobics classes in the past as well as hosted (and continuing to host) weddings, gatherings and other events since they purchased the building in 1994. [Note 3] On May 3, 2005, at its annual town meeting, the town amended its zoning bylaw to add “Conference and Event Facility” as a use permitted by special permit in all zoning districts. On January 2, 2008, the Martinos applied for a special permit to operate an event facility on their site. By decision dated September 22, 2008, the board granted that special permit subject to certain terms and conditions.

In its 5-0 decision, the board specifically found that, provided the conditions were adhered to, the granting of a special permit “would not be detrimental to the public convenience or welfare[,]” “would not create undue traffic congestion or impair pedestrian safety[,]” “would not overload any public water, drainage, sewer or other municipal system[,]” “would not impair the integrity or character of the Central Residential district or adjoining zones[,]” and “would not be detrimental to the health, safety or welfare of the general public.” Decision at 3. The conditions of the special permit state, in pertinent part, that it is limited to the Martinos, [Note 4] conditioned on the continuation of a License Agreement between the Martinos and the Congregational Church of Topsfield for parking at the neighboring Emerson Parking Lot, [Note 5] and that the facility can hold functions “on Friday, Saturday, and Sunday only, in accordance with the terms of the License Agreement and on such other days that parking is available and evidence thereof is provided in advance to the Inspector of Buildings.” Decision at 4. “The owner and operator of the facility shall insure that parking by attendees shall be in the provided parking area and not on North Common Street. Id. “Events at the facility on Fridays and Saturdays shall end by 11:30 p.m., and on all other evenings at 10:00 p.m., except that the facility may remain open until 2:00 a.m. on New Year’s Eve and five (5) other Friday or Saturday evenings during the year,” provided that “for functions with a late closing other than New Year’s Eve, the operator shall provide thirty (30) days advance written notice to the Building Inspector, the Police Department and the abutters.” Id. “Outdoor portions of events shall end no later than 8:00 p.m.” and “[a] police detail is required for any events of 120 people or more.” Id. Finally, “the barrier of trees and shrubs with the westerly abutter [the Lopezs] must be maintained.” Id. This barrier has since been supplemented by the Martinos with a tall, solid fence.

The Martinos have fully complied with the special permit conditions and host an average of seventy-eight weddings each year, with approximately 130 guests in attendance at each wedding. Each year, approximately twelve to fourteen wedding ceremonies are conducted outdoors in the sideyard garden. The wedding receptions, however, are all held indoors and the noise transmitted outside is minimal.

Ample parking is available for the number of vehicles present during events. For a wedding or other large gathering, approximately fifty to sixty-five vehicles require parking. In accordance with the conditions set forth in the special permit, the Martinos have and maintain a license agreement with the Congregational Church granting them the exclusive right to use sixty parking spaces in the lot behind the Emerson Center every Friday, Saturday and Sunday throughout the year between the hours of 3:00 p.m. and 11:30 p.m. The license agreement also permits the Martinos to request access to the parking lot outside the specified time period, if needed. In addition, there is public parking along the sides of Route 97 and East Common Street (both allowed by the permit; only parking along North Common Street is prohibited) [Note 6], which the guests may use as well.

Wedding parties sometimes use limousines or vans, particularly for the bride and bridesmaids. The Martinos have policies in place to ensure that these vehicles will not block the street or otherwise create traffic congestion while an event is being held at the facility. After dropping off their passengers, the drivers are directed to wait in the Emerson parking lot or alongside East Common Street until the guests are ready to be picked up. If necessary, the Topsfield Chief of Police has given the Martinos permission to park additional limousines on the green while unloading or picking up guests.

Compliance with all of this, plus traffic and parking in general, is ensured by the police. In accordance with the conditions set forth in the special permit, the Martinos have a paid police detail, in uniform, for every event at the facility. The detail consists of one police officer who has the ability to call for back up if necessary. The officer arrives a half-hour before the event begins and puts out orange cones and pylons to prevent people from parking in “no parking” areas. During the event, the officer controls traffic and directs guests and limousines to the appropriate parking area. In addition, they are tasked with ensuring that the Lopezs have unobstructed access to their driveway at all times the event is in session. The officer remains at the site for a half-hour after the conclusion of the event or until the last car leaves, whichever is later.

On numerous occasions, the Lopezs have criticized the police detail for not performing his or her duty properly. Either Mr. or Mrs. Lopez has approached the officer on duty to voice complaints concerning traffic, drinking in the street, or cars blocking their driveway, or has called police headquarters to complain that the officer was not performing his or her duty properly. Both the officers and the Lopezs testified at trial about these occasions, and I find the officers’ accounts — that there were, in fact, no actual problems — the more believable.

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 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-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 slightly less discretion 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. As set forth more fully below, I find that the board’s decision to grant the special permit had a substantial basis in fact, each of the conditions required by the Topsfield Zoning Bylaw were met and, therefore, the board’s decision is legally valid.

Analysis

The Martinos’ facility is located in Topsfield’s Central Residential District. In such districts, the bylaw permits, as of right, single family dwellings, churches, non-profit schools, and town buildings, among other uses. Bylaw §3.02 (Table of Use Regulations). The bylaw also permits the operation of conference and event facilities if a special permit is allowed by the board. Id. at §3.02, subsection 2.16. At issue in this case is the validity of such a grant.

The bylaw outlines a series of conditions that must be met for the issuance of a special permit. The Special Permit Granting Authority (here, the board) must be satisfied that:

1. The use requested is listed in the Table of Use Regulations (Article III) as a special permit in the District for which application is made or is so designated elsewhere in this By-Law.

2. The requested use is not detrimental to the public convenience or welfare.

3. The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

4. The requested use will not overload any public water, drainage, or sewer system, or any other municipal system to such an extent that the requested use or any developed use in the immediate area or in any other area of the town will be unduly subjected to hazards affecting health, safety or the general welfare.

5. The requested use will not impair the integrity or character of the district or adjoining zones, nor be detrimental to the health, safety or welfare.

Bylaw §5.04(B). In addition, the bylaw requires that the granting authority impose such conditions and safeguards as the board “finds reasonably appropriate to protect the neighborhood, or otherwise serve the purposes of this By-Law,” such as requiring buffer strips or screens between properties. Bylaw §5.04(C).

Mr. & Mrs. Lopez do not directly challenge the Martinos’ compliance with the majority of the requisite conditions. For example, the Lopezs vaguely claim that “parking and added congestion can present a safety issue by reduced visibility at intersections and increased traffic” but there was no persuasive evidence that any such safety issue is actually presented. Moreover, any such issue would immediately be addressed by the police detail. The Lopezs also claim that “a function facility abutting a residential tract, without a buffer zone, creates the potential for trespassing and endangering the residents of the abutting residential parcel, which is not in the interest of general welfare,” but again there was no persuasive evidence that there were any unprovoked trespasses, [Note 7] and it is unlikely that any will occur either now or in the future with police officers present. Certainly it was reasonable for the board to so conclude. The requested use is allowed in the Table of Use Regulations so long, as here, a special permit is granted. With the conditions attached to the permit — the police detail, the restricted hours, the requirement of parking at the Emerson Parking Lot and its prohibition on North Common Street, the barrier of trees, shrubs and now the fence between the facility and the Lopez residence — there was no persuasive evidence that the facility has or will create undue traffic congestion, overload municipal systems or depreciate the value of other land and buildings. [Note 8] See Bylaw § 5.04 (B)(4). Based on my assessment of the weight and credibility of the evidence, I find and rule that the requested use satisfies all of the requisite conditions for the issuance of the special permit at issue.

As limited by the conditions in the special permit, the facility is not “detrimental to the public convenience or welfare.” The Lopezs argue that it is detrimental because it allows a commercial facility to operate in the midst of a residential neighborhood. But this is not so. There are residences nearby, to be sure, but they are to its edges and buffered, and the true character of the relevant neighborhood is reflected by the other buildings and uses which, like the Martino facility, surround or are in near proximity to the town green — the Emerson Center, the Gould Barn, the Parson Capen House, the Congregational church, the recreational fields, the town hall, the elementary school, the town library, the nearby shops, and the summertime concerts and events on the green itself. The Martino facility fits in, both in use and architecture. Indeed, as previously noted, several of those buildings also host weddings and events. As noted above, particularly with the police detail and permit-required parking at the Emerson Parking Lot, the requested use will not create undue traffic congestion or unduly impair pedestrian safety. There was no evidence of any potential “overload [to] any public water, drainage, sewer or other municipal system,” and the Appeals Court decision in Lopez v. Topsfield Bd. of Health, 76 Mass. App. Ct. 1118 , Mem. & Order Pursuant to Rule 1:28 (Mar. 16, 2010), is res judicata of the Lopezs’ septic system claims in any event.

Finally, the requested use will not impair the integrity or character of the district or adjoining zones, nor will it be detrimental to health, safety or welfare. As noted above, it is in character with the other uses around the town green. It continues a long-established historical use of the building (weddings and community functions). The hours and parking limitations keep its impacts low, and confine them to reasonable times. The Martinos have been good neighbors and careful to adhere to the special permit and its conditions. With those conditions and that compliance, there will be no alteration to the integrity or character of the neighborhood nor detriment to the health, safety or welfare of the general public, and it was certainly rational and reasonable for the board to so conclude.

In sum, the evidence submitted at trial fully supports board’s conclusion that the proposed use fulfilled all necessary conditions for special permits in the Topsfield zoning bylaws. The board’s determination has a sound factual basis, it was neither arbitrary nor capricious in granting the permit. See Britton, 59 Mass. App. Ct. at 74-75. The board’s decision must therefore be upheld and the Lopezs’ appeal dismissed.

Conclusion

For the forgoing reasons, the Lopezs’ claims are dismissed in their entirety, with prejudice. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 19 January 2011