MISC 125972

November 8, 1989

Middlesex, ss.



This is an appeal pursuant to the provisions of G.L. c. 40A, §17 from a decision of the Board of Aldermen of the City of Newton granting to the Green Company, Inc. ("Green") a special permit to construct "apartment houses and residences for more than two families comprised of in the aggregate no more than 114 dwelling units (107 congregate, 6 townhouse, one superintendent's office/residence) for parking, driveways and access roadways and for accessory purposes thereto" on a tract of land situated on Kenrick Street, Kenrick Terrace, Huntington Road and Hood Street in the City of Newton and County of Middlesex, formerly the site, with the adjoining land in Boston in the County of Suffolk, also owned by Green, of St. Sebastian's School, a private Catholic boy's school. The dwelling units are for persons at least fifty-five (55) years of age, but the plaintiffs do not subscribe to the theory "old" is "ok." or "elderly" is "excellence".

The plaintiffs are residents of the neighborhood in which the site is located, but only certain of them, Judith Topping, Trexler Murray Topping, Donald Lubin, Daniel Dacey and Susan Jane Dacey, meet the statutory requirements of being an abutter or an abutter to an abutter entitling them to notice of the application for the special permit pursuant to the provisions of G.L. c. 40A §§ 9 and 11. Even if they fit this statutory classification, the defendants contend that the plaintiffs named above are not aggrieved persons entitled to bring this action, and the question of their standing will be addressed below in this decision.

A trial was held at the Land Court on March 29 and 30, April 21, May 3 and June 19 to 21 inclusive, all in 1989 at which a stenographer was appointed to record and transcribe the testimony. Witnesses included Michael Kaufman, Director of Development for the enterprises of developer John Drew and formerly with Green and Sasaki Associates ("Sasaki"), John Doherty, Business Manager of St. Sebastian's School, Richard Watson, Project Manager in the Survey Department of Vanasse, Hangen and Brustein ("Vanasse"), James Diorio, Director of the Land Survey Department of Vanasse, Robert D. Vanasse, Richard T. Westcott, principal of Westcott Site Services, formerly of Sasaki, Mark McGonigle, a survey officer of Vanasse, Jerome Van Arman, Project Survey Field Chief of Vanasse, Robert A. Silverman, a real estate consultant, Donald Glazier, an attorney, Walter Blair Adams, Commissioner of Inspectional Services for the City of Newton, Alan Green and Edward M. Kinas, Nellie Kinas, Richard Rubin, Jerome Vigil, Lorraine Vigil, Matthew Barvenik, Judith Topping, Ashok Rao, Phyllis Rao, Donald M. Lubin, an attorney, Donald Dacey, Susan Jane Conant and Trexler Murray Topping, all residents of the neighborhood near the former site of St. Sebastian's School. A total of fifty-nine exhibits, some of multiple parts, were introduced into evidence. A Massing Model of the site (Chalk A) also was provided to the Court for its assistance.

On all the evidence I find and rule as follows:

1. St. Sebastian's School, a non-profit educational corporation duly organized under the laws of the Commonwealth of Massachusetts, formerly was situated on a hilly site which straddles the city line between Newton and Boston. The total area of the campus is 16.3 acres (710,569 square feet) of which 10.029 acres (436,863 square feet) is situated in Newton. One of the buildings on the site is the former gymnasium which originally was built prior to World War I (Exhibit No. 42). It appears that another boys' school may have predated St. Sebastian's. Subsequently a wing with classrooms was added. Green's plans for the site include use of the gymnasium structure.

2. During the school days traffic entering and leaving the site by Huntington Road caused safety concerns among residents of Farlow Hill and precipitated complaints to city authorities. The Rector of the School instituted, at the neighbor's request, a policy limiting use of Huntington Road to morning access to the School with egress limited to other roads. A chain was placed across the access road during vacation periods and other times when access was attempted to be controlled.

3. As a boys' school St. Sebastian's had a number of athletic activities with approximately one hundred to one hundred fifty games per year and large numbers of spectators. The latter, of course, varied with the popularity of the sport in question.

4. The School moved from the site between Christmas vacation in 1982 and January 10th or 11th of the following year. It continues to store laboratory equipment donated by private schools in Boston in the classrooms adjoining the athletic/auditorium facility and the desks from the Needham school to which it moved in the gymnasium.

5. After St. Sebastian's moved from Newton to Needham, a series of proposals were made for use of the campus. These included a plan by Carabetta Enterprises to utilize the site for intense residential use for apartment style condominiums. This was followed by a suggestion that the property be acquired by the Commonwealth of Massachusetts for a Criminal Justice Institute.

6. The prospective sale of the site galvanized the neighbors into action, and a Sunday meeting at a local church led to the creation of the Farlow Hill Neighborhood Association; there also was an Oak Square Neighborhood Association to represent the interests of the Brighton residents in the vicinity of the site. After the first two proposals proved unacceptable to the residents, members of St. Sebastian's board interested Alan Green in the development and invited two representatives of the Farlow Hill Neighborhood Association to meet with him.

7. After the initial informal meeting with Mr. Green and representatives of St. Sebastian's and of the neighborhood a series of meetings of the so-called land use committee [Note 1] of the neighborhood association were held attended by Mr. Green at which his plans and the neighborhood concerns were addressed. The neighborhood supported the initial proposal which included units in both Newton and Boston. A special permit was granted by the Newton Board of Aldermen embodying Green's proposal (Exhibit No. 15), with the Newton approval contingent on development in Boston as well. No approval has as yet been obtained in Boston for the two city development.

8. Green decided to move ahead on a senior citizens' development in Newton only, and in September 1987 Alan Green again met with the neighbors relative to the change in plans. With general support from members of the neighborhood land use committee an application for a special permit was filed (Exhibit No. 1) in Newton. There were several differences between the new proposal and the two-city design dictated by the elimination of the Boston property. The access was to be in Newton only and principally to be from a new drive to be constructed from Kenrick Street. A connector was to be constructed between the two wings of the proposed building and was relocated completely in Newton, water was to be provided through Newton facilities rather than Boston, and future use of Boston premises was to be restricted.

9. Green had applied by petition filed August 27, 1985 (Exhibit No. 12) for a change of the zoning affecting locus from a Single Residence B District to a Residence E District (Exhibit No. 12) and the amendment was adopted early in 1986 (Exhibit No. 13). The description in Green's application followed that depicted on a site drawing (Exhibit No. 24) and includes the locus. The inclusion of the private ways on which the property abuts within the district change was questioned at the trial, but as described in the application the new zoning district would include all or one-half of the fee of the private way depending on the inclusion of the abutting land. [Note 2] So much of the way as adjoins the specific property description is included to the center line, and if land within the new district lay on each side of the way, the fee of the entire street was rezoned. The description in the ordinance refers to assessors' block and lot numbers which are not before the Court but appear to be the land specifically described in the application since the land area in the latter and in the ordinance is the same. Residence E Districts have since been renamed Multi-Residence 3 Districts (Exhibit No. 10). The plaintiffs do not attack the validity of the rezoning.

10. When Green first became interested in the site, state law allowed age discrimination in housing accommodations only for areas of at least twenty acres. A member of the state legislature from Newton introduced legislation which has been enacted to lower the minimum size of such a site to ten acres. The present locus contains 10.029 acres and thus complies with the statutory requirement.

11. The Newton Board of Aldermen and its Land Use Committee heard and granted the special permit sought by Green by order dated November 16, 1987 filed with the City Clerk on December 3, 1987 (Exhibit No. 3). At the meeting of both the Land Use Committee and the Board of Aldermen the plans of the project were present (Exhibit No. 4). Newton recently revised its zoning ordinance and has subsequently been routinely adopting housekeeping amendments thereto. Certain changes affecting the present action of the aldermen were not adopted until after the grant of the special permit, but the notice of the hearing was published first in time. The applicable amendments accordingly apply to the Green special permit. General Laws, c. 40A, §6 and Section 30-29 of the ordinance. The result herein is not affected, however, by the changes in the ordinance as 1987 drew to a close.

12. The Special Permit describes the use for which it was granted as follows:

Apartment houses and residences for more than two families comprised of in the aggregate no more than 114 dwelling units (107 congregate, 6 townhouse, one superintendent's office/residence), for parking, driveways and access roadways and for accessory purposes thereto.

The Special Permit also sets forth the following explanatory note:

Section 30-9(d) and Section 30-24 of the revised Newton Zoning Ordinances, 1987 requires the Petitioner to obtain SPECIAL PERMIT and SITE PLAN APPROVAL of the Board of Aldermen to construct more than two dwellings on a single lot in a Multi Residence Three District. The Petitioner also requests Board permission for exceptions under 30-15(h) height under special permits; Section 30-15(m) certain dimensional requirements; Section 30-19 (m) parking requirements; 30-20 (l) sign requirements; and 30-21(b) extension of non conforming building (Gymnasium).

13. The order of the Aldermen includes a finding that the development of the 114 units results in increased density over the "of right" 68 dwelling units in two family residences or 34 dwelling units in single family residences and accordingly is subject to the requirement of Section 30-24 (d) (5) to provide "low income for elderly housing". Green has not appealed this finding nor questioned the validity of said section.

14. The grant of the Special Permit is subject to the following conditions:

1. That this Special Permit and Site Plan Approval be exercised within a period of one (1) year from the date of approval of this Board Order.

2. The Petitioner shall execute an agreement in the form of a declaration of restrictive covenant with the City of Newton and direct abutters in Newton indicating, among other things, that the parcels of land contiguous to the site in Boston, MA and owned of record as of the date hereof by Petitioner (the "Boston Parcels") shall be restricted as follows: (1) no more than 138 dwelling units may be located in the Boston Parcels; (2) the elevation of any building in the Boston Parcels shall be no higher than the elevation of the highest newly constructed building in the Site; (3) no major athletic facility shall be located in the Boston Parcels; (4) there shall be no vehicular passage between the Site and the Boston Parcels, except for emergency access; and (5) no structure in the Boston Parcel shall be constructed closer to the buildings in the Site than a distance equal to one-half the height of the highest of the newly constructed buildings in the Site. Said agreement shall be reviewed and approved by the City Solicitor and recorded in the Middlesex South District Registry of Deeds and Suffolk County Registry of Deeds, and said agreement may be amended only by concurrence of the City and no less than 51% of property owners who are party to said agreement.

3. That except as may be amended below the buildings; parking stalls; driveways; maneuvering aisles; walkways; landscaped areas; fencing; walls; lighting; and other site features shall be constructed and located consistent with plans entitled: SITE LAYOUT PLAN. . . . as shown on Dwg. No. 2 prepared by Sasaki Associates, Inc. latest date 11/12/87 and Site Utilities Plan, Dwg. No. 3, prepared by Sasaki Associates, Inc. latest date 9/8/87, all as submitted by the Petitioner and filed herewith.

The plans may be amended to permit the number of permitted parking spaces to be reduced but not below 1.5 parking spaces per dwelling unit.

4. The buildings' floor plans, elevations and facade treatment shall be consistent with plans entitled, PLAN, Dwg. Nos. 4 and 5, latest date, 11/12/87; Elevations, Dwg. Nos. 6 and 7, latest date, 9/8/87 except as shall be revised to reflect Dwg. Nos. 4 and 5; UNIT PLANS, Dwg. No. 8, latest date 8/6/87, all prepared by Sasaki Associates, Inc. and submitted by the Petitioner and filed herewith.

5. That all solid waste shall be removed from the Site by a private contractor at the expense of the Petitioner or Petitioner's successor as required. Snow shall be removed or plowed by a private contractor. Any snow plowed or removed shall not be placed on any public roads or walkways.

6. That all utilities on the site, including telephone, electric and cable service shall be underground from the street line.

7. That locations of electrical transformers, chillers, and cooling towers on the Site (which may be above ground) shall be reviewed and approved by the Director of Planning and Development prior to installation.

8. The tennis court shall not be lighted and shall not be used prior to 8:00 a.m. daily.

9. Huntington Road shall not be utilized for vehicular ingress to or egress from the Site, except for ingress to and egress from the townhouses to be constructed near the entrance to Huntington Road and except by vehicles involved in construction activities at the Site, and except as expressly required by applicable law or ordinance, or rule or regulation or order of applicable governmental authority.

10. Hood Street shall not be utilized for vehicular egress from the Site, except by vehicles involved in construction activities at the Site, and except for emergency access by police, fire and other municipal vehicles, and except as expressly required by applicable law or ordinance, or rule or regulation or order of applicable governmental authority; provided, however, that nothing herein shall prohibit vehicular ingress into the Site. At the Petitioner's expense, Hood Street shall be resurfaced and curbing installed where necessary, both to City standards. Said resurfacing shall asure that surface water drainage from Hood Street shall be routed by means of drains installed at the Petitioner's expense into the City's drain system. So long as Hood Street is a private way, snow plowing of it shall be provided by Petitioner at its expense.

11. Kenrick Terrace shall not be utilized for vehicular ingress to nor egress from the Site, except as expressly required by applicable law or ordinance, or rule or regulation or order of applicable governmental a:uthority; provided, however, that until the construction of a new access road from Kenrick Street to the housing is completed, ingress to and egress from the Site through Kenrick Terrace by vehicles involved in construction activities at the Site shall be permitted.

12. There shall be no vehicular passage between the Site and the Boston Parcels, except for emergency access.

13. Notwithstanding anything to the contrary herein, gates or other devices may be installed at all access points of the Site to monitor and control access by residents and others consistent with the security requirements of the Site.

14. The Petitioner and any successor owner(s) from time to time of the congregate housing shall maintain the areas fronting on Kenrick Street and Kenrick Terrace in a neat and clean condition, free of trash and rubbish.

15. Provided the following does not violate applicable law, no more than one resident of each dwelling unit in the Site, whether in the congregate housing units or in the townhouse units (except residents of the superintendent's office/residence) shall be less than 55 years of age except for nurses or other persons providing health care services to the elderly occupants of said unit, and there shall be no resident of a dwelling unit in the Site (except residents of the superintendent's office/residence) who is less than 55 years of age unless there is concurrently resident in said dwelling unit at least one person of 55 years of age or older (a "senior citizen"); provided, however, that if the residency of said senior citizen shall cease because of the senior citizen's death or disability or divorce, then the other occupants of said unit at the time that said senior citizen shall have so ceased to be a resident may remain in residency notwithstanding this restriction. A senior citizen shall be deemed to be a resident of a dwelling unit notwithstanding that person's actual inhabitation of said unit is temporarily interrupted due to illness or other physical disability, vacations or the like, and a senior citizen shall be deemed to be a resident of a dwelling unit notwithstanding that said senior citizen seasonally inhabits a dwelling unit elsewhere than in the greater Boston metropolitan area during certain periods of the year.

16. Deleted.

17. No one resident of the Site may invite more than twenty-five (25) non-residents to utilize any common facility at any one time.

18. That no building permit shall be issued in pursuance of this SPECIAL PERMIT AND SITE PLAN APPROVAL until:

a. The City Engineer and (in the case of storm drainage an independent engineer selected by the City Engineer but compensated by the Petitioner) shall have approved the plans for site grading, storm drainage (as being designed so that storm water peak flow rates at the property lines will not be increased during the post development condition of the Site for the 100 year-24 hour storm event) and underground installation of all utilities, and a statement by the City Engineer certifying such approval shall have been filed with the City Clerk, the Building Department and the Department of Planning and Development.

b. Building facade materials and colors and amended plans referred to in 3 and 4 above shall have been submitted to and approved by the Director of Planning and Development and a statement certifying such approval shall have been filed with the City Clerk and the Building Department.

c. A landscaped plan indicating the location, size, number and type of landscaping and landscape materials to be installed and other site features shall have been submitted to and approved by the Director of Planning and Development and a statement certifying such approval shall have been filed with the City Clerk and the Building Commissioner.

d. The Fire Chief shall have approved the site plan as to adequacy of emergency access, and a statement by the Fire Chief certifying such approval shall have been filed with the City Clerk, the Building Department and the Department of Planning and Development.

e. The Petitioner shall have recorded with the Registry of Deeds for the Southern District of Middlesex County a certified copy of this Board Order granting this SPECIAL PERMIT with appropriate reference to the book and page of the recording of the Petitioner's title deed or notice of lease endorsed thereon.

f. The City Water Department shall have approved the adequacy of water pressure to the Site, and such approval shall have been filed with the City Clerk, the Building Department and the Department of Planning and Development.

19. That no building or structure, or portions thereof in Newton subject to this SPECIAL PERMIT AND SITE PLAN APPROVAL shall be occupied until:

a. The petitioner shall have filed with the City Clerk, the Building Department and the Department of Planning and Development a statement by a registered architect or registered engineer certifying that Conditions 3 and 4 have been complied with as to those units to be occupied.

b. There shall have been filed with the City Clerk, the Building Department, and the Department of Planning and Development a statement by the City Engineer certifying that the finished grades and final construction details of the driveways, parking areas, drainage systems, pond and utility installations have been constructed to the standards of the City of Newton Engineering Department as to those units to be occupied.

c. There shall have been filed with the City Clerk and the Building Department a statement by the Director of Planning and Development approving the final location, number and type of plant materials, final landscape features, parking area and lighting installations as to those units to be occupied.

d. A statement by the Building Department that there has been full compliance with the Massachusetts State Building Code, including any permits issued by said Department, and that the premises are suitable for occupancy shall have been filed with the City Clerk and the Department of Planning and Development.

e. (i) A statement shall be filed by the Law Department with the Building Department that the Petitioner has conveyed unoccupied on-site eleven (11) two bedroom units to the City of Newton (said units being the units identified for such purpose in the plans for the development) utilizing funds available to the Newton Community Development Authority at the price (s) established by the Massachusetts Chapter 705 or 667 Program or under any successor program, or under any similar Federal program, or that said units are under a fully executed purchase and sale agreement, with a firm and mutually agreed upon closing date. Notwithstanding the above and subject to subsection (ii) below, no occupancy (either temporary or permanent shall be permitted for the final ten percent (10%) of the (total) non low­income units in the project in Newton until actual conveyance of all low-income units has taken place or would have taken place. The Petitioner and the City shall act with all reasonable diligence to accomplish the execution and delivery of the said purchase and sales agreements and the conveyances thereunder. Such eleven units shall have all of the amenities and improvements commonly available to the other units in the development at the common charges therefor.

(ii) If no State or Federal program is available for purchase the City shall have the option of appropriating its own funds for acquisition. If there is no applicable program, and if the City does not appropriate funds for acquisition, the Petitioner shall meet the condition set forth in this section (e) by offering the eleven low income units to the Newton Housing Authority for occupancy by tenants certified by said Authority as eligible under its subsidized lease program. Said units, which shall be made available for occupancy prior to, or at the time of, the occupancy of the building pursuant to this SPECIAL PERMIT, shall be reserved for five (5) years with seven (7) five-year options for renewal. Said renewal (s) shall occur automatically. An executed Agreement between the Petitioner and the Newton Housing Authority shall be filed with the City Clerk, the Public Building department and the Department of Planning and Development, prior to occupancy (temporary or permanent ) of any unit subject to this Special Permit/Site Plan Approval. Said Agreement shall provide that should the Newton Housing Authority, at any time during said reservation period, be unable to utilize the reserved units for such occupancy said units shall be made available to the Newton Housing Authority should it again become able to utilize said units for its subsidized lease program as vacancies occur within said units. If, at future date, the Massachusetts Chapter 705 or 667 Program or other similar Federal or State program again becomes operative, the Petitioner shall have the option to offer the unit again to the City for purchase under said program at a price not to exceed the applicable program prices.

In no instance shall the then current occupant (s) of any unit be evicted therefrom for the purpose of compliance with this paragraph.

(iii) To allow for the phased occupancy of this development, prior to the issuance of any occupancy permit the Petitioner shall provide one low-income unit pursuant to either method contained in conditions (i) and (ii) above for each ten market-level units he seeks to have occupied, up to a maximum of eleven two bedroom low-income units.

20. Notwithstanding the provisions of Section 19 (a) through (d) hereof, the Building Commissioner may issue one or more certificates for temporary occupancy of all or portions of the buildings prior to the installation of final landscaping, provided that the Petitioner shall first have filed with the Director of Planning and Development a bond, letter of credit, cash or other security in form satisfactory to the Director of Planning and Development in an amount not less than One Hundred Thirty-five percent (135%) of the value of the aforementioned remaining landscaping affecting units to be occupied to secure installation of such landscaping.

21. The special permit and approval herein granted shall inure to the benefit of and be exercisable only by The Green Company, Inc. and its affiliates and successors as herein defined. For the purposes hereof, affiliates and successors shall be limited to (a) any company (whether corporation, partnership, trust or other business entity) included in the group of companies associated with The Green Company, Inc., of which Mr. Alan J. Green is presently the principal officer, (b) any one or more institutional lenders to Petitioner or such affiliates and successors in financing of the Project and any entity associated with such lender in carrying out the Project, and (c) once one or more condominiums have been established, the unit owners thereof and their organization of unit owners. In addition to but not in limitation of the foregoing, for purposes of any Special Permits herein granted, same are personal to Petitioner and shall not be assigned, conveyed, sold or otherwise transferred by Petitioner except to its affiliates and successors as hereinbefore defined without the express written consent of this Board; and only after a public hearing brought by and authorized according to law and the provisions of Chapter 40A of the General Laws.

22. The Petitioner and any mortgagee, lessee or purchaser of all or any portion of, or interest in, the Site may rely for consistency of the development with the plans specified in conditions 3 and 4 hereof on a certificate executed by the Director of Planning and Development.

23. Petitioner shall employ Gerontological Services, Inc. or another consultant to prepare a plan of the human and social services to be offered to the elderly residents of the congregate housing, such plan to be prepared with the consultation and advice of the City's Department of Human Services. A copy of such plan shall be filed with the City Clerk and the Director of Planning and Development. The plan shall be incorporated in the condominium by-laws of any condominium established for the congregate housing. It is understood that the plan will be subject to future modification due to changing needs and desires of the elderly residents of the congregate housing. As used in this Order congregate housing shall mean the housing provided in the apartment buildings as distinct from the townhouses.

24. During the construction period Petitioner shall not permit construction workers' vehicles to be parked on City streets. The Petitioner shall insert a provision so restricting such parking in construction contracts for the development and shall require its contractors to insert a like provision in their subcontracts.

25. Any common food service facility on the Site shall not be in the gymnasium and shall be designed to prevent the emanation of offensive odors, and appropriate measures in the operation of such facility shall be taken to eliminate noise, trash and rodents. Compliance with this condition shall be evidenced by a certificate with respect thereto issued by the Building Commissioner or the Director of Planning and Development.

26. All residential buildings (including the townhouses) shall be equipped with a domestic fire sprinkler system.

27. Notwithstanding condition 9 above, Huntington Road may be utilized for emergency access by the fire department, and Petitioner shall provide a fire lane to enable the fire department to reach the congregate housing. It is understood that the fire lane may be paved or unpaved and may be landscaped, all as the Petitioner shall determine and that Petitioner may install such security devices as are appropriate to limit access to the fire lane to the fire department on an emergency basis, provided that in any such case the use of such fire lane for its intended purpose is not materially adversely affected thereby.

15. It is contemplated that the existing school gymnasium will be used for physical fitness and other health activities for the residents of the site. The height of the gymnasium building has been an issue. The building pre-dates the adoption of zoning in Newton so the applicability of the Zoning Ordinance to it both as a nonconforming structure and as a religious educational institution will be discussed hereafter. The Zoning Ordinance defines height as follows:

Height: The distance from the mean grade to the top of the highest roof beams of a building with a flat roof, to the top of a structure, or, in the case of a building with a pitched roof, to the top of the ceiling joists of the topmost habitable space, or, where there is no ceiling, to the top of the roof rafters (Except that where the topmost habitable space in a pitched roof building has no ceiling, height shall be measured from the roof plate line if the floor of such habitable space is not less than six (6) feet below the roof plate line).

The gymnasium has a pitched roof. The definition of Height as it appears in Section 30-1 of the Newton Zoning Ordinance is difficult both to construe and to apply, its application to determine the height of the gymnasium is strained at best. A close reading of the definition reveals that there is no language squarely addressing a building constructed as the gymnasium. The difficulty is relieved in this case as the structure in question here is protected under the combined provisions of G.L. c. 40A, §§ 3 and 6. The roof overhang at its nearest point to a lot line is 9.44 feet and the foundation is 13 feet.

16. Under the previous ordinance the height limitation was sixty feet as of right for the residential building. The building is designed for persons fifty-five years or preferably older, and therefore a taller building with a smaller footprint to diminish the necessity of walking lengthy distances has been designed. The townhouses were designed to act as a buffer between the neighborhood and the development and also to eliminate through traffic to the site from Huntington Road.

17. Traffic increases on the present roads directly servicing the site will be minimal since the special permit limits their use. There will be a new access road from Kenrick Street. However, there will be additional traffic added to the flow on Kenrick Street which already is heavily travelled, but in an insufficient number to affect the "level of service" category used by the Institute of Traffic Engineers at the intersection of Waverly Road and Kenrick Street. Generally residents of advancing years can be expected to use the highway in off peak hours and in the daytime, not at night. The Institute of Transportation designated Land Use Code 250, for a retirement community, generates a potential 372 total daily trips, as compared to congregate care (Land Use Code 252) of 237 daily trips and sixteen single family attached dwellings (Land Use Code 210) of 603 daily trips.

18. For the population anticipated for the apartment units 1.5 parking spaces will be adequate.

19. The Newton water distribution system like the infrastructure of many of the older Massachusetts cities is not state of the art and has some inadequacies inherent in an old piping system restricted to some extent from rust and the accumulation of debris. The locus is at one end of the system, and the two city plan had anticipated water being provided by Boston. The night of the fire at St. Sebastian's the Newton neighbors experienced severe water pressure problems and have done so at other times as well, some of which stems from the condition of the pipes leading from the street to their main properties. The new construction, however, should improve the color and the smell of the water as there will be a continued flow and flushing. The pressure may be improved as well from the contemplated work and Green's plan for providing water to the residences it intends to construct.

20. The current Newton Zoning Ordinance provides in Section 30-15 (1) for the grant of a special permit in a Multi-Residence Three District for the construction of residential buildings separately or in combination with other permitted uses in excess of the number of stories and height permitted as of right if circumstances warrant such modification, but in no case to a height or number of stories in excess of that permitted by special permit, as shown on the Table set forth in said section, in any such district.

21. The ordinance also provides in Section 30-19 (2) for the grant of a special permit to authorize fewer parking stalls than required by the strict construction of the applicable provisions "if circumstances warrant such modification, but in no case less than one and one-quarter (1-1/4) parking stalls per dwelling unit. . . ." There also is a further provision for a special permit in section 30-9 (d). Finally there is another provision relative to signs for which special permits may be granted as provided in section 30-20 (1).

The plaintiffs attack the action of the Board of Alderman on several grounds governed by the ordinance and G.L. c. 40A. Their objections, however, to the construction of the development has its roots in more personal reasons. Several witnesses believed that the number of vehicle trips generated by the senior citizens would be greater than the experts computed and would seek neighboring streets in an effort to avoid existing traffic lights. A second and pervasive cause for concern was the water pressure which was very low during the St. Sebastian's fire. The drainage from the site which is a steep slope was viewed as a problem by an abutter directly across Kenrick Street. These are legitimate concerns of certain of the plaintiffs which affected them more particularly than other residents of Newton. Conversely objections expressed by other plaintiffs in their testimony grounded in personal dislike of the architecture, distress at interference with their view or unhappiness at changes in the existing vegetation on the site do not rise to the level of a valid reason for the court to weigh in considering the validity of the Board's action.

In G.L. c. 40A § 9 are found the provisions for special permits for certain uses allowed only by the grant of a special permit as well as specific authority for such a permit authorizing greater density of population or intensity of a particular use subject to certain conditions which are met here. In section 30-24 (d) of the Newton Ordinance is found the enabling provisions for the grant of a special permit, in addition to those in the specific instances set forth above. So far as here material the Ordinance reads as follows:

(d) The board of aldermen may grant a special permit when, in its judgment, the public convenience and welfare will be served, and subject to such conditions, safeguards and limitations as it may impose. The board of aldermen shall not approve any application for a special permit unless it finds, in its judgment, that the use of the site will be in harmony with the conditions, safeguards and limitations herein set forth, and that the application meets all the following criteria (except that uses accessory to activities permitted as a matter of right and which activities are necessary in connection with scientific research or scientific development or related production may be permitted provided the board of aldermen finds that the proposed accessory use does not substantially derogate from the public good):

(1) The specific site is an appropriate location for such use, structure;

(2) The use as developed and operated will not adversely affect the neighborhood;

(3) There will be no nuisance or serious hazard to vehicles or pedestrians;

(4) Access to the site over streets is appropriate for the type(s) and number(s) of vehicles involved.

It is well settled that no person has a right to a special permit; where, as here the Board of Aldermen granted the special permit, its action must be upheld if in accordance with the authority given by the statutory grants and not arbitrary or unreasonable. The plaintiffs press numerous grounds on the Court to sustain their allegations that the action of the Board was flawed. The five principal legal arguments which they have made rest on the following premises:

a) The action of the Board in making exceptions to the ordinance requirements was in effect a variance which cannot be done by special permit; b) the provisions of the special permit which leave details of the grant to determination by city authorities in areas such as utilities, landscaping, fencing, wall design render the special permit incomplete and nugatory; c) the gymnasium has lost its status as a valid nonconforming structure by lack of use for more than two years; d) the overriding importance of the traffic and water issues; e) the limitation of the parties to the covenant with the city imposing restrictions on the Boston land contiguous to the site to direct abutters; and f) technical questions arising from the language of the ordinance or its application. Into the latter category fall such questions as to a) whether the line of ownership or the city line is the lot line; b) which is the front and back line of the lot; c) the permissibility of more than two residences on a lot under the revised ordinance.

While a viable argument when the action was tried, the Appeals Court has recently disposed of one of the plaintiffs' major arguments against the decision of the Board of Aldermen. While it's unclear that the development requires any special permit for dimensional requirements to meet the standards of the zoning ordinance, Emond v. Board of Appeals of Uxbridge 27 Mass. App. Ct. 630 (1989) makes it clear that the existence of exceptions survived the enactment of St. 1975, c. 808 and that relief may be granted under the circumstances here without resort to a variance.

The plaintiffs also rely on the doctrine of Weld v. Board of Appeals of Gloucester, 345 Mass. 376 , 378 (1963) to invalidate the special permit. The rule of Weld vitiates the delegation by the permit granting board to another board or the reservation to itself for future decision of the determination of an issue of substance and central to the matter before it. Weld has not been widely followed as appears from Justice Kass' discussion on pages 624 and 625 (and footnote 6) of the decision in Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 (1986) SC 400 Mass. 464 (1987). The decision of the Board of Aldermen in the present case requires approval by various city agencies of certain phases of the development plans including site drainage, storm drainage, building facade materials and colors, landscaping, emergency fire access and water pressure before the issuance of a building permit. While it is a close question, the city officials named in the order appear more appropriate parties to determine such technical questions than the Board itself which has ruled on the broad policy questions. None of these peripheral matters are issues of substance central to the issue but rather involve specialized matters within the purview of the city departments in much the same way as the issuance of the building permit. I find and rule that the special permit under review does not violate the Weld rule but falls within the exceptions outlined in Tebo.

The plaintiffs argue that the gymnasium is a nonconforming structure which was not used for two years and thus its protection was lost under both G.L. c. 40A, §6 and Section 30-21 (a) of the ordinance. In fact, the building had been minimally used for storage and other purposes at least until February 3, 1986 when the grant of the first special permit (Exhibit No. 15), the litigation (Exhibit No. 16) arising therefrom, the second permit and this action would have extended the time limitations if we assume the grant of the special permit did not implicitly approve the existing dimensional violations, if any. Moreover, G.L. c. 40A, §3 limits the applicability of zoning to religious educational institutions so it was not until Newton adopted arguably "reasonable regulations" in 1987 that the gymnasium was subject to any setback requirement.

There has been no period of two years within which the structure has been "abandoned or not used" as required by G.L. c. 40A § 6. The plaintiffs argue, however, that the use made of the property was so small that section 6's protection was lost. If this were in fact the case, and I have found otherwise, the plaintiffs' arguments still cannot prevail.

At the present time a municipality indeed may impose reasonable regulations concerning the dimensions relating to structures used for religious educational purposes. See Attorney General v. Dover, 327 Mass. 601 (1951); Sisters of Holy Cross of Mass. Inc. v. Brookline, 347 Mass. 486 (1964); Newbury Junior College v. Brookline, 19 Mass. App. Ct. 197 (1985); Trustees of Boston College v. City of Newton, Land Court Miscellaneous Case No. 121573 (1987). The City of Newton adopted on December 7, 1987 Table 2 of Section 30-15 of the Zoning Ordinance, which is expressly applicable to religious and non-profit educational uses, effective September 22, 1987, the first date of publication of notice of the public hearing in connection therewith. Because the special permit contested here was issued November 16, 1987, the zoning ordinance amendment at first glance appears to apply.

The gymnasium was built in 1916 (Exhibit No. 42). Since that time, numerous building permits have been issued to St. Sebastian's in connection with alterations to the structure. Inasmuch as the locus was owned by a religious group and operated for educational purposes the site was exempt from zoning restrictions as to the gymnasium. Therefore the two years did not commence to run until September 22, 1987 and has been stayed by this litigation. Cf. Dirkin v. Board of Appeals of Falmouth, 21 Mass. App. Ct. 450 (1986).

I find and rule, therefore, that the gymnasium is a lawfully pre-existing nonconforming structure which is not subject to conformity with the dimensional requirements enumerated in the Newton Zoning Ordinance. The use of the gymnasium has continued uninterrupted at all relevant times and was exempt from the operation of local zoning pursuant to c. 40A, § 3 until conveyed in early 1987. Thereafter, although no longer exempt, the gymnasium enjoys the status of a nonconforming structure protected by G.L. c. 40A § 6 and the similar provisions of the Newton Ordinance.

The evidence showed that there are problems with water distribution and with traffic in this section of Newton as in many other communities. There was expert testimony, however, to the effect that the traffic generated by the proposed development would be less than other possible uses due in part to the age of the future occupants. There is nothing in the findings which I have made that establishes the board's action as arbitrary and unreasonable.

Some of the plaintiffs complain that the covenant affecting the future use of the Boston site is framed to benefit abutters and not any greater class. This was a decision which the Board in its discretion was entitled to make since it was reasonable to conclude that those immediately adjoining the site would be most affected thereby, and there is no requirement that their action encompass all who fall within the category of "parties in interest" as defined in section 11 of Chapter 40A. It made sense to choose as the appropriate class immediate abutters. The concept is similar to that upheld by the Supreme Judicial Court in Sylvania Electric Products, Inc. vs. Newton, 344 Mass. 428 (1962) where Justice Whittemore stated that "[i]t does not infringe zoning principles that, in connection with a zoning amendment, land use is regulated otherwise than by amendment" Id. at 434.

As to the questions raised by the plaintiffs as to the proper setback of the townhouses from Huntington Road or the main building from the city line, the short answer is section 9 of Chapter 40A as well as the Newton Ordinance give the Board the power to weigh the advisability of the application of dimensional requirements. Apart from this overriding principle use of the Boston land to meet any applicable Newton yard requirements is governed by Tofias v. Bruter, 26 Mass. App. Ct. 89 (1988) and Moore v. Swampscott, 26 Mass. App. Ct. 1008 (1988). Accordingly, use of the Boston land owned by Green for the passive setback requirement presents no problem even if we assume the city line to be the lot line. Cf., however, the definition of "Lot line" as it appears in section 30-1 of the Ordinance. The plaintiffs argue that the recodification of various provisions of the Newton Zoning Ordinance resulted in a provision that forbode more than two units on a lot. Such an argument was not made until the briefs, and it is not open to the plaintiffs now. Moreover, the wording of Section 30-15 (h). [Note 3]

The defendants argue that none of the plaintiffs meet the statutory test of a "person aggrieved" entitled to maintain this action pursuant to the provisions of G.L. c. 40A, §17. See Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491 (1989) and Green v. Board of Appeals of Provincetown, 404 Mass. 571 (1989). It is true that many of the plaintiffs fall without the class of persons entitled to statutory notice of the hearing before the board and showed no effect of the grant on them different from that of the general populace of Newton. However, there are several plaintiffs who are "abutters" or "abutters to abutters" who testified as to a particular impact on them which in my opinion entitled them to maintain this action.

On all the evidence therefore I find and rule that the decision of the Board of Aldermen granting the special permit was not arbitrary or unreasonable but rather was based on legally tenable grounds.

Judgment accordingly.


[Note 1] The land use committee was an informal nucleus of the association comprised of members interested in development problems.

[Note 2] The usual rules of construction of property descriptions and the definition of boundaries of districts which appears in Section 30-3 of the Newton Zoning ordinance dictate the result set forth in the finding.

[Note 3] In Multi-Residence 3 and 4 Districts and all Business Districts, the Board of Aldermen may grant a special permit in accordance with the procedures set forth in section 30-24 for the construction of residential buildings, separately or in combination with other permitted uses in excess of the number of stories and height permitted as of right, if circumstances warrant such modification . . . .