MISC 128831

November 10, 1989

Plymouth, ss.



By this action, filed July 21, 1988, A. Charles Caranci, Jr. ("Plaintiff") seeks judicial review, pursuant to G.L. c. 40A, §17, of that portion of a decision of the Plymouth Zoning Board of Appeals ("Board"), dated June 28, 1988, denying his application for a special permit, pursuant to Sections 401.l5 (c) (2) and (4) of the Plymouth Zoning By-law ("By-law") (Exhibit No. 2), for the designation of a certain parcel of land, with the building to be constructed thereon, located in Plymouth, Massachusetts ("Locus"), as a "Planned Commercial Park".

On August 29, 1989, the matter proceeded to trial on an Agreed Statement of Facts, with twenty-six exhibits affixed thereto, and on oral arguments of counsel. All of the exhibits and certain of the parties' agreed upon facts are incorporated herein for purposes of any appeal.

On all of the evidence, I make the following findings of fact:

1. Locus is a parcel consisting of 4.41 acres, more or less, located on the northwesterly side of South Meadow Street in Plymouth. Said property is shown as Lot No. 20-3 on Plat No. 108 of the Town of Plymouth Assessor's Maps (See Exhibit No. 1) and is situated, in its entirety, in both the Airport Zoning District of Plymouth; [Note 1] as defined in Section 401.15 of the By-law, and in the Village Services Area of Plymouth, as defined in Section 400.05 (B) of the By-law. The boundary lines of the Airport Zoning District and the Village Services Area are depicted in red and green, respectively, on Exhibit No. 1.

2. As set forth in Section 400.05 (B) of the By-law, the Village Services Area is defined as follows:

That portion of the Town, . . . in which the major portion of growth and development is projected to occur and in which capital improvements will be provided to support development during the current capital improvements programming and planning period.

3. As presently set forth in Sections 401.15 (B) and (C) of the By-law, the following uses are permitted in the Airport Zoning District, either by right or upon the issuance of a special permit:


1. Aviation-related uses and structures on airport property

2. Types of agriculture excluding grain crops which would attract birds

3. Industrial uses as prescribed in Section 401.14, and subject to all conditions therein, provided that no industry shall create significant smoke

4. Private clubs and certain commercial or public recreation uses such as golf courses

(C) SPECIAL PERMIT USES (Uses which can tolerate a high level of sound exposure, including but not limited to):

1. Limited commercial uses of a type related to aviation or to other aviation or airport-oriented uses

2. Planned commercial parks as provided for in Paragraph 4

3. Any industrial uses subject to special permit as required by Section 401.14

4. Planned Commercial Parks which:

(A) contain less than 35,000 square feet of gross floor area; and

(B) are located in a Village Services Area; and

(C) are located on lots created prior to January 1, 1988 which lots may not be sub­divided thereafter. into lots containing additional Planned Commercial Parks; and

(D) are located on lots no closer than 250 feet from any lot containing another Planned Commercial Park

Any uses which may be incompatible with location in the Airport Zoning District, or in a Village Services Area, or in a Planned Commercial Park may be denied a permit. All sound sensitive uses shall be appropriately insulated.

4. "Planned Commercial Parks" are presently defined in Section 102 of the By-law as follows:

One or more structures housing uses allowed in Section 401.l0 (B) neighborhood commercial and uses allowed or authorized by special permit in Section 401.15 Airport and subject to environmental design conditions as specified, planned and designed as a unified complex so as to provide a functional and attractive development.

5. As set forth in Section 401.l0 (B) of the By-law, the following uses are allowed in the Neighborhood Commercial Zoning District:


1. Churches, synagogues, and other places of worship

2. Convenience retail establishments such as drugstores, small grocery stores, small variety stores, newsstands

3. Personal service establishments such as barber and beauty shops, laundry and dry-cleaning establishments (coin-operated or pick-up stations only), tailoring and garment repair shops

4. Other convenience services such as branch banks or post office substations

6. Section 401.14 of the By-law sets forth the following uses among those permitted by special permit in the Industrial Zoning District:

Convenience commercial establishments such as branch banks and full-service restaurants whose primary service area is the industrial district and which are located in buildings whose major occupants are engaged in otherwise allowed or permitted industrial uses. Such commercial uses may not occupy more than 25% of the gross floor area of the building in which they are located or 10,000 square feet, whichever is the lesser.

7. On February 26, 1988, the Plaintiff filed a Zoning Permit Application (Exhibit No. 7) with the Town of Plymouth Office of Zoning Administration ("Office"), the purpose of said Application being to verify the application and effect of Section 401.l5 (c) of the By-law on Locus. On this same day, the Plaintiff also furnished the Office with an Application for Applying for a Business (Exhibit No. 7A), said Application being directed at the construction of a Planned Commercial Park on Locus.

8. On April 12, 1988, the Defendant, Plymouth Five Cents Savings Bank ("Savings Bank"), filed a petition with the Board seeking the issuance of a special permit, puruant to Section 401.15 (c) (2), (3) and /or (4) of the By-law, for the construction of a Planned Commercial Park on Locus, consisting of an office building, a portion of which would be used as a branch bank; and a special permit, pursuant to Section 309.07 of the By-law, for a temporary trailer to be used as a temporary branch bank during construction of the permanent building on Locus (Exhibit No. 17). [Note 2]

As shown on a plan entitled "Site Development Plan Prepared for A. Charles Caranci, Jr.", dated February 29, 1988 (Exhibit No. 18), the structure proposed for construction by the Plaintiff is a two-story office building containing 12,420 square feet of gross floor area. Further, as stipulated to by the parties hereto, Locus itself is located more than 250 feet from any other lot containing a "Planned Commercial Park".

9. The Board held a public hearing on the Savings Bank's petition on June 28, 1988. At said meeting, the Board voted to grant the special permit for a branch bank to be located in a portion of the proposed office building, subject to certain conditions enumerated in the decision, and to deny the special permit for a "Planned Commercial Park" (Exhibit No. 25).

The Board based its denial of the special permit on the following reasons:

1. The designation of a Planned Commercial Park would admittedly have been appropriate in the zone and on the specific site in question but three members of this Board are of the opinion that in order to make a qualified decision, it is necessary to have plans detailing any proposed commercial uses and proposed future buildings (emphasis added) for the Planned Commercial Park. Said plans should include the footprint of proposed additional buildings, in addition to architectural, engineering, landscape plans, parking, etc.

2. It would appear that if the Planned Commercial Park had been granted and if it had been built according to the plans submitted for a single building, then adequate and appropriate facilities would be provided for the proper operation of the proposed park.

3. There will be no hazards to pedestrians and vehicles for the reason stated above in Condition No. 2.

4. There will be no nuisance or adverse effect upon the neighborhood resulting from the construction of the proposed building.

The duty of the Court in reviewing appeals brought pursuant G.L. C. 40A, §17 is as follows:

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 reviewing Court hears the matter de novo, renders independent findings of fact and affirms the decision of the Board unless it is found to rest 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 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 the scope of its review is confined to the legal validity of the Board's actions 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). In such cases, the special permit applicant must prove to the Court that he has satisfied the statutory prerequisites for the issuance of a special permit, as set forth in G.L. C. 40A, §9, and that, accordingly, the Board's decision exceeded its authority and must be annulled. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977); Boyajian v. Board of Appeals of Wellesley, 6 Mass. App. Ct. 283 , 284 (1978); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981). Upon consideration of the forgoing facts, I find and rule that the decision of the Plymouth Zoning Board of Appeals, dated June 28, 1988, denying the Plaintiff's application for a special permit was in excess of its given authority and, accordingly, must be annulled and this matter remanded to the Zoning Board of Appeals for a further decision not inconsistent herewith:

In the instant matter, the facts to which the Plaintiff and the Defendants stipulate reveal that the Plaintiff's proposed development of Locus complies in all respects to the prerequisites for a Planned Commercial Park, as set forth in the By-law. First, Locus lies in the Village Services Area of Plymouth. Secondly, it is located more than 250 feet from any other lot containing a "Planned Commercial Park". Additionally, the Plaintiff proposes to construct thereupon an office building housing a branch bank. Insofar as "industrial uses" subject to a special permit under Section 401.14 constitute uses allowed by special permit in the Airport Zoning District, and as the proposed branch bank is such an "industrial use", the Plaintiff's proposal complies with the By-law definition of "Planned Commercial Parks". Moreover, as the By-law states that even one structure housing such authorized use(s) may constitute a "Planned Commercial Park", the Board exceeded its authority in denying the Plaintiff's application for a special permit due to his failure to submit plans of "proposed future buildings" for its approval. Had such been the intention of the Town in drafting the aforesaid amendments to the By-law, it should have inserted such language, clearly and precisely, in the pertinent sections of the By-law, in order to fully apprise a special permit applicant in the position of the Plaintiff of the need for such additional plans. See Bell v. Zoning Board of Appeals of Cohasset, 14 Mass. App. Ct. 97 , 105 (1982). Having so found, I rule that the Board's denial of the Plaintiff's application for a special permit contravened the clear and unambiguous language of the By-law and, accordingly, must be annulled as a decision in excess of its authority. I note, however, that, as said ruling applies only to the proposal as submitted to the Board, it does not vest the Plaintiff with an unbridled license for further buildings upon Locus without the prior authorization of the Board nor to make use or uses of Locus which are inconsistent with the By-law.

Judgment accordingly.


[Note 1] Although Locus is situated in the Airport Zoning District, it does not constitute airport-owned or airport-related property.

[Note 2] The Savings Bank subsequently waived that portion of its application pertaining to the use of a temporary trailer on Locus.