DENNIS P. SWEENEY, as he is Trustee of BRIGHT MORNING REALTY TRUST vs. GLENN A. SCHRICKER, JEANNE GARRISON, HAROLD P. HILBERG, WAINO J. KANGAS, JR. and RAYMOND D. TRUDELL, as they are members of the BOARD OF APPEALS OF THE TOWN OF BOXBOROUGH and the TOWN OF BOXBOROUGH.

The Plaintiff, Dennis P. Sweeney, as he is Trustee of Bright Morning Realty Trust ("Plaintiff"), filed Superior Court Civil Action No. 86-8040 in the Middlesex County Superior Court on December 31, 1986. This action was brought pursuant to G.L. c. 40A, §17, for judicial review of a decision of the Defendant, Board of Appeals of the Town of Boxborough ("Board"), in which decision the Board denied his application for a special permit to convert a residential unit, in a six (6) unit dwelling owned by him, located at 1238 Hill Road in Boxborough's Industrial-Commercial zoning district ("Locus"), to a real estate office.

By complaint filed in the Land Court on May 28, 1987, and amended on April 27, 1990, the Plaintiff commenced Miscellaneous Case No. 123506, pursuant to G.L. c. 240, §14A and c. 231A, §1, seeking a declaration that the Town of Boxborough's ("Town") creation of a residential zoning district within a designated Industrial-Commercial zoning district is a denial of equal protection under the law and is in violation of the Federal and State Constitutions. The Plaintiffs also sought a determination as to the applicability of Sections 3, 4.5.2.1, 4.3.1.2 and 4.6.1.1 of the Boxborough Zoning By-law ("By-law") (Exhibit No. 1) to his proposed use of Locus.

On March 29, 1988, the cases were consolidated for trial in the Land Court. A trial was held on March 17, 1990, at which time the Court appointed a stenographer to record and transcribe the testimony. Five (5) witnesses testified and nine (9) exhibits, all of which are incorporated herein in the event of any appeal, were accepted into evidence.

On all of the evidence before the Court, I find as follows:

1. As shown on Sheet No. 8 of 12 of the Boxborough Assessor's Tax Maps (Exhibit No. 6), Locus, which is identified thereon as Lot No. 179, lies within the Industrial-Commercial zoning district. As shown more specifically on a plan entitled "Plan of Land in Boxborough/Littleton, Mass.", dated August 1, 1986 (Exhibit No. 4), Locus is improved with a six (6) unit apartment building.

2. The apartment building on Locus was constructed in 1965, at which time such multi-family uses were permitted in the Industrial-Commercial zoning district.

3. In 1970, zoning in the Town was changed so as to prohibit apartment uses in the Industrial-Commercial zone. At that time, the apartment building on Locus became a nonconformng use, which is defined in Section 2.2 of the By-law as follows:

A building, lot, or use thereof, lawfully in existence at the time of adoption or amendment of the By-Law but which does not conform to the regulations contained herein.

4. The Plaintiff, a real estate broker licensed in Massachusetts, acquired title to Locus in 1977.

5. On August 25, 1986, the Plaintiff filed an application for a special permit with the Board (See Exhibit No. 2). Specifically, the Plaintiff sought the following relief:

Special permit to alter non-conforming use. Applicant desires to convert an existing residential unit in a six (6) unit dwelling to real estate office. Industrial­ Commercial Zoning District (7.3.1.3); Special Permit to erect freestanding sign (6.5.5.5).

6. The Plaintiff requested a special permit from the Board, so as to operate a real estate office out of Unit No. 6 at Locus. As contemplated, the office would be open seven (7) days a week, during the hours of 8:00 A.M. and 5:00 or 6:00 P.M. , and would employ up to four (4) employees. There would be a separate entrance through which employees and clients could access the office. Office parking would be accommodated by eight (8) existing on-site parking spaces.

7. Unit No. 6 at Locus is a one-bedroom, ground level apartment, with an area of between 300 and 350 square feet. As of the time of trial, this unit was occupied by one residential tenant. A total of eight (8) residential tenants were then in occupancy of Units No. 1 through 4, with Unit No. 5 being vacant.

8. Relevant portions of Section 4.5 of the By-law provide the following with respect to the Industrial-Commercial zoning district:

4.5.1 Permitted Uses: Subject to any applicable provisions of [Section] 7.3 [Special Permits].

4.5.2 Uses which may be permitted by the Board of Appeals in accordance with Section 7.3 of this By-law:

4.5.2.1 Any other use not otherwise permitted in Section 4.5.1 which is permitted in a Business or Office Park district.

9. Professional and business offices are uses permitted in the Office Park District under Section 4.6.1.1 of the By-law.

10. Section 7.3.1.3 of the By-law provides that any change or extension of a non-conforming structure or use shall be permitted only upon the issuance of a special permit.

11. Pursuant to Sections 7.3.2.2.1 through 7.3.2.2.1.5 of the By-law, the Board shall grant special permits, only if it finds that the structure(s) and/or use(s) proposed shall:

a.) Comply with all of the requirements and be in harmony with the general purposes of this By-law.

b.) Not be detrimental to the health and welfare of the occupants and users of the site or of the public.

c.) Not adversely affect or be noxious to the premises adjoining the site because of density of population, intensity of use or otherwise, nor shall the traffic generated by the use proposed create a serious hazard to pedestrians or vehicles.

d.) Not be substantially more detrimental to the neighborhood than the existing use in the event of an application for an extension and/or alteration of a non-conforming use.

e.) Be accompanied by adequate methods for storage and disposal of sewage, refuse and other wastes resulting from the uses permited on the site and for drainage and/or retention of surface water.

12. Following public hearings on October 16, November 20 and December 4 of 1986, the Board, on December 11, 1986, voted unanimously to deny the Plaintiff's application (See Exhibit No. 3). Relevant portions of the Board's findings and decision read as follows:

7. The Planning Board . . . noted that although the existing non-conforming multi-family residential buildings are in an industrially-zoned area, they were developed in a rational manner according to zoning by­laws in force at the time of their construction. The Board felt the multi-family neighborhood "provides an effective transitional zone between single-family agricultural/residential uses . . . and the large-scale industrial commercial developments. . . . The Board believes that the introduction of a real estate office in this wholly-residential area would create a mixed use substantially more detrimental to the neighborhood than the existing non-conforming use." The Board urged the application be denied in light of Sections 7.3.2.2.1 and 7.3.2.2.1.4 of the Zoning By-law.

10. The Zoning By-law does not provie for the commingling of residential and other uses in the same building, except for Section 4.1.1.4, which provides for trades and occupations of resident occupations.

11. The current Zoning By-law does not provide for residential use in an Industrial-Commercial District.

The Board concludes that it is the intention of the Zoning By-law to separate uses by the establishment of districts set aside for each use. . . . Therefore, the Board must conclude that the commingled use violates the intent of the Zoning By-law and is more detrimental to the neighborhood than the existing non-conforming use.

In reviewing appeals brought pursuant to G.L. c.40A, §17, the Court conducts a de nova hearing at which the reviewing judge makes 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), inasmuch as the scope of its review is limited to the legal validity of the Board's decision. 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).

As a starting point, I will observe that the Boxborough Zoning By-law, as it is drafted, is somewhat convoluted. Section 4.5.1.2 of the By-law states that one class of uses permitted in the Industrial-Commercial zone is any "other use not otherwise permitted in Section 4.5.1 which is permitted in a Business or Office Park district". Following the language of this provision, I find that, under Section 4.6.1.1, professional and business offices, such as that proposed by the Plaintiff, are permitted uses in Boxborough's Office Park zoning district. It thus follows that the real estate office proposed by the Plaintiff is a permissible use in the Industrial-Commercial zone. Accordingly, I find that the Plaintiff's proposed use will not result in the expansion of a nonconforming use, inasmuch as the proposed real estate office is a permitted and conforming use in the Industrial-Commercial zone under the By-law. Further, I find that the Board's finding that such commingling of uses violates the intent of the By-law and is more detrimental to the neighborhood than the existing nonconforming, residential use lacks any factual basis. Moreover, while a "transitional zone" may be desirable, it is not required, or even suggested, by the By-law.

In addition to the foregoing, I note that, all of the By-law provisions governing uses permitted in a particular zone state that the allowance of such uses is subject "to any applicable provisions of [Section]7.3", which section pertains to uses allowed only upon the issuance of a special permit. I do not herein consider whether or not these "limitations" on permitted uses run afoul of the principle enunciated in SCIT. Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984), [Note 1] inasmuch as a reading of Section 7.3.1.2 that portion of Section 7.3 which applies to uses allowed in the Office Park district, indicates that the Board may allow such uses only if it finds the following:

. . . that the use shall comply with and satisfy the criteria (emphasis added) set forth in Sections 4.1.2, 4.2.2, 4.3, 4.5.2, 5.1.5, 6.3.4, 6.6.5 and 6.8.1.

An examination of those sections of the By-law which the Town defines as "criteria" do not amount to anything more than a description of, or limitation on, certain uses, unless of course uses themselves may be properly termed to be criteria in this instance.

Having thus found that the business office use which the Plaintiff proposes to operate on Locus is a permitted use under applicable sections of the By-law, it appears that the Board's denial of the Plaintiff's special permit application to operate such use in Boxborough's Industrial-Commercial zone is based on the Board's finding that the By-law impliedly prohibits commingled uses, which uses, if standing alone, may be otherwise permitted in a particular zone. The portion of the By-law which the Board relies on in denying the Plaintiff's special permit application is Section 4.1, the relevant subsections of which read as follows:

4.1 Agricultural-Residential District -

4.1.1 Permitted Uses: Subject to any applicable provisions of [Section] 7.3 . . .

4.1.1.4 Accessory uses customarily incidental to any of the foregoing permitted uses on the same premises, including but not limited to the following:

4.1.1.4.1 Use of a room or rooms in a dwelling for customary home occupations conducted by resident occupants . . .

4.1.1.4.2 Use of premises or of a structure thereon, incidental to the trade of a resident carpenter, electrician, painter, plumber, machinist or other similar occupation . . .

The Board's decision does not, however, reference Section 4.1 as the authority prohibiting the specific commingled use proposed by the Plaintiff. Moreover, I find that Section 4.1 serves only as a limitation on the uses which may be conducted on a lot in the Agricultural-Residential zone, rather than as a blanket prohibition of commingled uses on lots in all of the Town's zoning districts. I thus find that, with the limited exception of Section 4.1, the Boxborough Zoning By-law is silent on the question of whether there may be more than one principal use on any given lot.

For all of the reasons discussed herein, I rule that the Board exceeded its authority in denying the Plaintiff's application for a special permit to operate a real estate office out of an existing residential apartment unit located in Boxborough's Industrial-Commercial zone and, accordingly, its decision must be annulled.

The Defendants have filed requests for rulings of law, which I have considered. Certain of these requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own rulings as to those principles of law which I deem most pertinent hereto.

Judgment accordingly.