T. WESTON SCHIFFONE vs. IRA A. LEVY, ROBERT W. LEE, JAMES E. FITZGERALD, DANIEL J. CUNNINGHAM, JR. and LEROY P. JONES, all as members of the ZONING BOARD OF APPEALS OF THE TOWN OF WALPOLE.

On March 8, 1988, T. Weston Schiffone ("Plaintiff") commenced the above-entitled action in the Norfolk Superior Court seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Zoning Board of Appeals of the Town of Walpole ("Board"), dated February 10, 1988, denying his application for a special permit for the construction of multi-family dwellings at 240-242 Plimpton Street, Walpole, Massachusetts ("locus") and for site plan approval. Thereafter, on April 11, 1988, the Plaintiff filed a Motion for Summary Judgment and in the alternative, Motion for a Speedy Trial and Motion to Amend the Complaint and to Waive Notice Requirements, said Motion for Summary Judgment being denied and such other motions being granted by the Norfolk Superior Court on April 20, 1988.

On May 2, 1988, the case was transferred to the Land Court upon the Plaintiff's motion pursuant to G.L. c. 212, §26A, and was docketed Miscellaneous Case No. 127868. Subsequent thereto, the Plaintiff filed a Motion for Reconsideration of his Prior Motion for Summary Judgment, which motion was denied.

A trial was held in the Land Court on October 24, 1988 at which all testimony was tape recorded. Both parties have waived transcription of the tapes. Five witnesses testified and eleven exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. Prior to trial, counsel filed a "Stipulation Regarding Facts" (Exhibit "A"), certain portions of which have been included in the findings set forth below. On November 2, 1988, the Court viewed the locus in the presence of counsel.

On all of the evidence, I find as follows:

1. On October 26, 1987, the Plaintiff filed an application (Exhibit No. 6) with the Board seeking a special permit, although erroneously, pursuant to Section 3-B-3 of the Walpole Zoning By-law ("By-law") (Exhibit No. 11), for the construction of multi-family dwellings on approximately 4.1 acres of land, shown as Lots No. 354 and 360 on the maps filed with the Office of the Walpole Board of Assessors (Exhibit No.2), and more commonly referred to as 240-242 Plimpton Street in Walpole, and for site plan approval in accordance with Section 7 of the By-law. Thereafter, on January 6, 1988, pursuant to the Board's request of November 18, 1987, the Plaintiff filed a supplemental memorandum (Exhibit No. 9) properly seeking the issuance of a special permit under Sections 3-B-7 and 4-C-4 of the By-law.

2. Section 4-C-4 of the By-law states in relevant part that:

. . . in General Residential Districts, the Board of Appeals may by special permit (SP1 under 3-B-7) allow more than one (1) building on a lot where eight (8) or more dwelling units are to be accommodated on said lot . . .

3. Pursuant to Section 3-B-7 of the By-law, the Board must determine that the following conditions have been fulfilled prior to its issuance of a special permit:

a. SPl

i. shall not have vehicular and pedestrian traffic of a type and quantity so as to adversely affect the immediate neighborhood,

ii. shall not have a number of residents, employees, customers, or visitors so as to adversely affect the immediate neighborhood.

iii. shall not have a greater lot coverage than allowed in the zoning district in which the premises is located (refer to Section 4-B).

iv. shall not be dangerous to the immediate neighborhood of the premises through fire, explosion, emission of wastes, or other causes

v. shall not create such noise, vibration, dust, heat, smoke, fumes, odor or glare or other nuisance or serious hazard so as to adversely affect the immediate neighborhood.

vi. shall not adversely affect the character of the immediate neighborhood.

vii. shall not be incompatible with the purpose of the Zoning By-Law or the purpose of the zoning district in which the premises is located.

4. The multi-family dwellings proposed for construction by the Plaintiff will be located within a "General Residence District", which district is described in Section 2-A of the By-law as having the following purposes:

. . . to provide an area for low density, single and multi­family residential use (emphasis added) . . . and to provide a transition area between single family residential and commercial or industrial land uses.

The required lot area in a "General Residence District" is 15,000 square feet per building. See By-law, Section 4-B, "Schedule of Dimensional Regulations." The development proposed by the Plaintiff will be situated on a tract of land of "pork-chop" configuration, containing an overall area of 4.1 acres with 131.87 feet of frontage on Plimpton Street. It will consist of six (6) buildings, containing a total of thirteen (13) residential condominium units in a townhouse formation (See Exhibit No. 3).

5. The neighborhood surrounding the locus is comprised of relatively old, single and multi-family residences, containing one, two or three stories. Inasmuch as the locus is situated within an area constituting a "buffer zone" between residential and commercial properties, there are apartment buildings, an MBTA rail line, a gas station and a shopping center adjacent thereto as well.

6. On January 6 , 1988, the Plaintiff submitted a supplemental memorandum and a Revision 3 Site Plan to the Board. The Board took the Plaintiff's application under advisement and on February 10, 1988 entered its decision denying the special permit as follows:

It is the finding of the Board that not all of the conditions set forth in Section 3-B-7 of the Zoning By-law were shown to be fulfilled as required, specifically, that [the proposed development]:

SP-1 ii "shall not have a number of residents, employees, customers, or visitors so as to adversely affect the immediate neighborhood. . ."

Thirteen residential condominium units, provided in six dwellings, is excessive.

SP-1 vi "shall not adversely affect the character of the immediate neighborhood. . ."

The crowding of the buildings into a limited section of a lot (due to its pork-chop configuration) will adversely affect the character of the neighborhood.

SP-1 vii "shall not be incompatible with the purpose of the Zoning By-law or the purpose of the zoning district in which the premises is located. . ."

The crowding of the buildings upon the lot is contrary to the desire for space, using the entire configuration of the lot.

The Board further determined that inasmuch as relief under Section 4-C-4 of the By-law to allow multiple dwellings on one lot is denied, the matter of site plan approval in accordance with Section 7 of the By-law is moot.

7. On March 30, 1988, the Board rendered its final decision on the Plaintiff's application by making one additional finding as follows:

It is the finding of the Board that not all the conditions set forth in Section 3-B-7 were shown to be fulfilled, as required, specifically that [the proposed development]:

SP-1 i "shall not have vehicular and pedestrian traffic of a type and quantity so as to adversely affect the immediate neighborhood. . ."

The proposed 13 residential condominium units will create a magnitude of vehicular and pedestrian trarfic that would adversely affect the immediate neighborhood. [Note 1]

The Court's review of the Board's proceeding with respect to a special permit application is delineated in G.L. c. 40A, §17, which provides:

The Court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.

Specifically, the Court on appeal hears the matter de novo, makes its own findings and affirms the decision of the Board unless it rests on legally untenable grounds or is unreasonable, arbitrary, whimsical or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). The Court may not substitute its judgment for that of the Board, Garvey at 856; Subaru at 486-488; Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969), as its review is limited solely to the validity of the Board's action in granting or denying the special permit. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). One particular statutory precondition to a finding by the Court that the Board acted properly in rendering its decision is a finding that the Board complied with G.L. c.40A, §15, a portion of which reads as follows:

. . . The Board shall cause to be made a detailed record of its proceedings . . . setting forth clearly the reason for its decision . . . (emphasis supplied).

The applicant for the special permit bears the burden of producing evidence at trial that he has met the statutory prerequisite, and that accordingly, the Board's decision was rendered in excess of its authority. Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981); Boyajian v. Board of Appeals of Wellesley, 6 Mass. App. Ct. 283 , 284; Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977). In the instant matter, I find and rule that inasmuch as the decision propounded by the Board with respect to conditions SP-1 ii, SP-1 vi and SP-1 vii of By-law Section 3-B-7 fails to include a definite statement of rational causes and motives, founded upon adequate findings, Gaunt v. Board of Appeals of Methuen, 327 Mass. 380 , 382 (1951), it runs afoul of G.L. c. 40A , §15 and for this reason, and those reasons set forth below, it must be annulled.

The Board determined that the Plaintiff's proposed multi-dwelling development violates three (3) of the seven (7) conditions which, pursuant to the By-law, must be satisfied prior to the issuance of a special permit in this zoning district. With respect to the condition numbered SP-1 ii which requires that there not be "a number of residents, employees, customers, or visitors so as to adversely affect the immediate neighborhood", the Board's determination centers solely on its conclusion that "thirteen residential condominium units, provided in six dwellings, is excessive." The Board, however, omits any explanation within this portion of its decision as to those factors which render the units proposed by the Plaintiff "excessive." In other words, the Board does not set forth in the record substantial facts which rightly may move an impartial mind, acting judicially, to the definite conclusion reached. Gaunt at 381; Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Williams v. Building Commissioner of Boston, 1 Mass. App. Ct. 478 , 480 (1973). For example, the Board neglects to disclose the source of the problem it anticipates, namely whether the proposed development will generate an excessive number of "residents", "employees", "customers", "visitors", or a combination of all four. Moreover, the evidence presented does not indicate that the residents, etc. to be generated by the Plaintiff's proposal will be in excess of what may reasonably be expected from the development of the locus into "conventional", i.e., single family, residences.

The Board further contends that conditions SP-1 vi and SP-1 vii of Section 3-B-7 of the By-law will be violated by the Plaintiff's proposal. Specifically, the Board finds that the proposed development will "adversely affect the character of the immediate neighborhood", in violation of SP-1 vi, by its "crowding of buildings into a limited section of [the] lot" and that such development will be "incompatible with the purpose of the Zoning By-law or the purpose of the zoning district in which the premises is located", thereby violating SP-1 vii because of its "crowding of the building upon the lot. . . ." Both of these conclusions evidence the Board's concern about "crowding" buildings onto a limited portion of a lot. Although the Board thereby advances a viable concern, I do not find any evidence to support its conclusions. Section 4-B of the By-law ("Schedule of Dimensional Regulations") provides that any building located in a "General Residence District" must have a minimum required lot area of 15,000 square feet. In addition, a reading of Section 4-C-4 of the By-law, which is quoted in Finding No. 2 (multiple buildings on one lot), indicates that the By-law authorizes, in this zoning district, the construction of multi-family dwellings containing at least two dwelling-units upon a minimum of 15,000 square-feet of land, or 7,500 square feet per dwelling unit. Simple arithmetic reveals that the Plaintiff's proposed development allows for an excess of this area requirement. Moreover, as there is no set configuration for such multi-family dwellings specified in the By-law, the fact that the proposed development uses the land in a "pork-chop" configuration may not constitute grounds for attack by the Board, the Board being powerless to impose density requirements beyond those established by the By-law. In consideration of the foregoing, I rule that the Plaintiff's proposed development is compatible with the uses lawfully permitted in this zoning district and does not contravene applicable By-laws.

I rule in summary that, for the aforementioned reasons, the decision of the Zoning Board of Appeals of the Town of Walpole must be and hereby is annulled and that the Board is hereby directed to issue the special permit requested by the Plaintiff, and further, that the matter be remanded to the Board for consideration of the Plaintiff's application for site plan approval consistent herewith.

The Defendants have submitted requests for findings of fact, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts which I deem material to the instant matter.

Judgment accordingly.