This is an appeal pursuant to G.L. C.40A, s.17 and C.240, s.14A, challenging the denial of the Defendant Planning Board ("Board") of the Plaintiffs' application for a special permit in the form of site plan approval. The Plaintiffs' also challenge that portion of the North Andover Zoning By-law ("By-law") which appears to require a special permit for a permitted use.
This matter came on to be heard on October 24, 1989 on the Plaintiffs' motion for summary judgment. After considering arguments of counsel and reviewing the pleadings and memoranda filed in conjunction therewith, I find there to be no issue of material fact and that, accordingly, the case is ripe for summary judgment.
The Board argues that, despite the language of the By-law, the site plan review process contemplated therein is not "special permit site plan review". A plain reading of the By-law appears to require site plan approval by special permit for the use proposed by the Plaintiffs, which use is allowed as of right. Rather than voiding in its entirety the special permit portion of the By-law and leaving the Town with no site plan review whatsoever, I find that, as suggested by the Town, the Board, in acting on the Plaintiffs' application, is empowered with nonspecial permit site plan review authority. Pursuant to such authority, I find that, so long as the specific area and use criteria set forth in the By-law are met by the Plaintiffs, the Board lacks discretionary power to deny approval. Such power is limited to imposing reasonable terms and conditions on the proposed use. Prudential Insurance Company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 (1986). Thus, the Board is not authorized to deny or to modify the plan for reasons related to the off-site impacts of a pemitted use nor is it authorized to impose conditions directed at the mitigation of such impacts. The Board may, however, impose reasonable conditions relative to the operation of the permitted use or to matters such as vehicular or pedestrian traffic, safety, lighting, landscaping or the like.
The decision of the Board, dated September 29, 1988, denying the Plaintiffs' application for site plan approval thus exceeded its authority and is hereby remanded to the Board for further consideration consistent herewith.
The Court retains jurisdiction in this matter for the determination of any further issues which may arise in carrying out this decision and order.
By the Court
GORDON HALL, III, DAVID J. BERTON and JERRY A. GOLDLUST vs. PAUL A. HEDSTROM, GEORGE PERNA, JOHN SIMONS, ERICK NITZCHE and MICHAEL LEARY as they are the PLANNING BOARD OF THE TOWN OF NORTH ANDOVER and the TOWN OF NORTH ANDOVER.