WILLIAM D. NORMAN, TRUSTEE OF THE 106 HUMPHREY STREET REALTY TRUST, WILLIAM D. NORMAN and KAREN C. NORMAN [Note 1] vs. JEFFREY SCHRIBMAN, BARBARA SHEFFTZ, BARRY PORTNOY, DAVID DELANY, DOUGLAS G. MOXHAM, JOHN A. BENNING, GEORGE VALLIS, JOHN W. HACKETT, HARRY GROSSMAN and JOANNE SILVA, [Note 2] as they are members of the BOARD OF APPEALS OF THE TOWN OF MARBLEHEAD.

In Hitchcock v. Douglas Moxham et al. as members of the Board of Appeals of the Town of Marblehead, the Town of Marblehead and Kerry Duffy, Miscellaneous Case No. 128863, this Court pointed out that the Appeals Court had held after the trial but before the decision therein was entered that it was valid for a town by-law to provide for relief from dimensional requirements by exceptions, Emond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 630 (1989), as the Town of Marblehead has done. In the present case the question arises as to whether members of the Board of Appeals (the "ZBA") acted arbitrarily and unreasonably in refusing to grant the plaintiff such a special permit. I hold that the Board did so act and remand this matter to it for the issuance of a special permit subject to a requirement that the existing garage be demolished and such other provisions as the ZBA reasonably may require.

This is an appeal pursuant to the provisions of G.L. c. 40A, §17 from the Board's denial of such a special permit in its decision filed with the Town Clerk on May 12, 1988. A trial was held at the Land Court on June 12, 1990 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff was the only witness in his own behalf. Witnesses for the defendant were Edward Spignese, a neighbor of the plaintiff's and Douglas Moxham, a former chairman of the ZBA. Thirty-one exhibits were admitted into evidence, some with multiple parts, and they are incorporated herein for the purpose of any appeal. The parties entered into an agreed statement of facts (Exhibit A) and based thereon I find and rule as follows:

1. By this action, filed on May 14, 1988, William D. Norman, Trustee of 106 HUMPHREY STREET REALTY TRUST u/d/t dated August 14, 1987 and recorded with the Essex South District Registry of Deeds at Book 9135, Page 342, William D. Norman, individually and Karen C. Norman, individually, all of 106 Humphrey Street, Marblehead, Essex County, Massachusetts ("plaintiffs") seek judicial review, pursuant to Massachusetts General Laws, Chapter 40A, §17 of a Decision of the defendant, Board of Appeals of the Town of Marblehead ("Board") filed with the Town Clerk on May 12, 1988, being Decision No. 1246 ("Decision") denying the plaintiffs Application for a Special Permit to subdivide the property located at 106 Humphrey Street, Marblehead, Essex County, Massachusetts ("Locus") into two lots, which lots each contain less than the minimum area required by the Marblehead Zoning By-Law ("By-Law").

2. The plaintiff, William D. Norman, Trustee of 106 Humphrey Street Realty Trust acquired title to Locus by deed of Joseph L. Paine, Executor under the will of Hattie Ellen Russell, a/k/a H. Ellen Russell, recorded with the Essex South District Registry of Deeds at Book 9135, Page 351 (Exhibit No. 2).

3. The beneficiaries of the 106 HUMPHREY STREET REALTY TRUST were, at all times, William D. Norman and Felix P. Quinn.

4. William D. Norman and Karen C. Norman, individually, acquired title, husband and wife as tenants by the entirety, by deed of William D. Norman, Trustee of 106 Humphrey Street Realty Trust, recorded with the Essex South District Registry of Deeds at Book 9491, Page 456. (Exhibit No. 3). Recorded simultaneously with the said deed was a Beneficiaries' Certificate recorded in said Registry at Book 9491, Page 457 (Exhibit No. 4) and a Trustees' Certificate recorded in said Registry at Book 9491, Page 458 (Exhibit No. 5).

5. Locus is shown as Land of Russell on a plan entitled "PLAN OF LAND IN MARBLEHEAD, MASS KNOWN AS RUSSELL'S GARDENS", Philip J. Leary, C.E., Scale 1" = 100', dated October, 1928 recorded with the Essex South District Registry of Deeds at Plan Book 56, Plan 22 ("Subdivision Plan") (Exhibit No. 24). At the time of the recording of the Subdivision Plan, Locus complied with all of the dimensional requirements of the By­Law then in effect.

6. As shown on the Subdivision Plan, and as shown on the compilation of the maps on file with the Marblehead Assessors' Office (Exhibit No. 22), Locus, which is depicted thereon, contains 18,537+/- square feet of land, with 301.12 feet of frontage on Auburndale Road/Humphrey Street as follows:

a. 200 feet of frontage on Auburndale Road;

b. 22.98 feet of frontage on the curve at the intersection of Auburndale Road and Humphrey Street;

c. 78.14 feet of frontage on Humphrey Street.

7. Locus is situated within the Single Residence ("S-R") Zoning District of Marblehead, in which district single-family residential dwellings are permitted as a matter of right (see By-Law Article IV, Section IV.2, Table 1). The following are the dimensional requirements of the S-R District:

Lot Area: 10,000 square feet Frontage: 100 feet

Setback: 20 feet Sideline: 15 feet

Rearline: 15 feet Max. Hgt.: 35 feet

Off-street Parking Spaces: 2 per unit

Minimum Open Area Per Lot: None

(See By-Law Article V, Section V.l, Table 2).

8. The Town of Marblehead allows for exceptions to the dimensional requirements by special permit. The legal validity of this process was upheld in Land Court Miscellaneous Case No. 128863, dated September 14, 1989. (See By-Law Article I, Section I.5A).

9. Locus lies within the S-R District, which district has not had any changes in classification, permitted uses, area or dimensional requirements since 1965, the minimum lot size, since that date, being 10,000 square feet.

10. In granting a special permit pursuant to Article I, Section I.5B of the By-Laws, the By-Laws provide that the Board shall consider the following criteria before granting a special permit:

I.5B The Board of Appeals shall consider the following criteria before granting a special permit:

a. The specific site is an appropriate location for such use or structure.

b. The use as developed will not adversely affect the neighborhood.

c. There will be no nuisance or serious hazard to vehicles or pedestrians.

d. Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

To assure that the foregoing conditions are met, the Board may impose any restrictions deemed necessary, such as but not limited to the following:

aa. Greater than minimum [sic] yard requirements.

bb. Modification of exterior appearance; limitation of size, occupancy, or extent of facilities.

cc. Regulation of traffic and site plan features; additional off-street parking requirements.

dd. Screening of parking areas or other premises from view of use of appropriate wall, fence, or planting.

ee. Control of the number, location and size and lighting of signs.

11. By Application dated September 8, 1987 ("First Application"), the plaintiffs requested that a special permit issue by the Board of Appeals allowing the subdivision of Locus into two separate lots (Exhibit No. 6). Proposed Lot A consisted of 10,000 square feet of land and complied, in all respects, to the S-R dimensional requirements. Proposed Lot B contained 8,530 square feet (less than the required minimum area). The proposed garage on Lot B (not then in existence) had less than the required sideline and rear yard setback. All of the other dimensional requirements of the S­R District were met. The garage located on Lot A was to be removed.

12. After due and adequate publication and notification, the Board of Appeals held a public hearing on Tuesday, October 13, 1987 at the Selectman's Room at Abbott Hall. Present and sitting at the hearing were defendant members Vallis, Shefftz, Delany, Levy and Chairman Moxham. After presentation of the Application, and comments from abutters (three in favor and seven in opposition), the Board of Appeals made various suggestions and recommendations to the plaintiffs. The plaintiffs' request to withdraw the Application, without prejudice, was granted (see Notice of Decision marked as Exhibit No. 8 and Decision of Board of Appeals No. 1200 marked as Exhibit No. 9).

13. In the Second Application, the plaintiffs changed the Subdivision Plan, submitted a new Application to the Board of Appeals dated February 5, 1988 ("Second Application"), which was filed with the Board of Appeals on March 2, 1988 (Exhibit No. 10).

14. The Second Application proposed that the property be subdivided into two lots. The first lot, Lot A, consisting of 8,824 square feet, less than the minimum area required in the S-R District, met with all other dimensional requirements. Lot A designated a "buildable area" which complied with all of the setback requirements of the S-R District. The second lot, Lot B, consisted of 9,710 square feet, less than the minimum required area. Further, the existing garage was to be moved from Lot A to Lot B with less than the required side and rear yard setbacks. Lot B, otherwise, complied with all of the dimensional regulations of the S-R District.

15. After due and adequate publication and notification, the Board of Appeals held a public hearing on April 26, 1988 at the Selectmen's Room at Abbott Hall. Present and sitting at the hearing were the defendant members Schribman, Shefftz, Portnoy, Delany, and Chairman Moxham. The Plaintiffs presented the application which was supported by three abutters. Attorney McElroy, representing eleven abutters, opposed the application.

16. After the hearing, the board voted to deny the Second Application, which denial is the subject of this action.

17. The Subdivision Plan (Exhibit 24) shows 47 lots fronting on Auburndale Road ranging (exclusive of Locus) in size from 5030 square feet to 7100 square feet. The average lot size fronting on Auburndale Road as shown on the Subdivision Plan (exclusive of Locus) is 5,953 square feet.

18. The proposed subdivision, and construction of a single family dwelling on Lot A, would not create a nuisance or serious hazard to vehicles or pedestrians.

19. There are adequate and appropriate facilities and services to Locus for the proper operation of the proposed use after the subdivision and construction of a single family dwelling on Lot A.

20. The procedural requirements, notifications and filings in this action have been met by the Plaintiffs.

On all the evidence I further find and rule as follows:

21. The reasons given for the Board in denying the special permit in its 1988 decision, as distinguished for reasons enunciated by individual members of the Board, were only the general purpose and intent of the Marblehead Zoning By-law and a recent Town Meeting's affirmation of larger lot size requirements in other parts of Marblehead.

22. In addition to the subdivision of which the locus is an unnumbered lot, subdivisions adjoining the locus and including a large area in the Humphrey Street neighborhood close to Swampscott consist of lots much smaller than locus and smaller than the subdivided lots will be (see Exhibit Nos. 22-27, 29H, 30 and 31).

23. The Marblehead Zoning By-law provides in Section 1.5A under the general heading of special permits that the ZBA "may grant exceptions to dimensional regulations in Table 2. . . . On acting on these matters, the Board shall take into consideration the general purpose and intent of this By-Law and may impose such conditions and safeguards deemed necessary to preserve community values. Subject to appropriate conditions and safeguards, the Board may grant a permit without finding of hardship or for stated reasons, may deny the permit." The by-law then provides in Section 1.5B for the criteria to be considered before granting a special permit. It is unclear whether such criteria are applicable where the Board is granting an exception from the provisions of the by-law rather than a true special permit, but this case has been presented to the Court as if such criteria were applicable and has been so decided. The decision of the Board does not meet the requirements of Section 1.5A that in denying a permit the reasons for doing so must be given, for those set forth were very general and will be evaluated later in this decision.

24. After suggesting at the presentation of the plaintiff's original petition that he make the two lots more nearly equal in size, although less than the required 10,000 square feet, the Board allowed the plaintiff to withdraw his application. He proceeded to have the plans for the house to be constructed on the vacant lot prepared, as also requested by a Board member at the first hearing, and presented these to the Board with his second application. The membership of the ZBA had changed in the interim period, and he was no more successful in the face of neighborhood opposition. Those parties opposed, however, almost unanimously had lots less than the proposed new subdivided lots in area, and the suggestion that the plaintiff's land be kept open was not accompanied by an offer to contribute to the cost of its purchase for such purposes by the Town.

25. The factor which weighed most heavily with the members of the ZBA was their perceived view that the members of the 1987 Town Meeting wish to create larger lots in Marblehead. Whatever inference may be drawn from action taken by the Town Meeting in other sections of the Town, there was no proposal that the minimum zoning requirements be changed in the district in which the locus is situated and in view of the size of the lots in the neighborhood this hardly could constitutionally be done.

Appeals pursuant to G.L. c. 40A, §17, are heard by the Court de novo, which makes its own findings and draws its own conclusions from the evidence presented at trial. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-559 (1954). Bicknell v. Board of Appeals of Boston, 330 Mass. 676 , 679 (1953). "The judge's function on appeal [is] to ascertain whether the reasons given by the [board have] a substantial basis in fact, or [are], on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Vazza Properties. Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973).

Although no applicant is entitled to a special permit, the Board's power to grant or deny being discretionary even where the facts could have supported its being issued, see Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 484 (1970); MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638 (1970), a decision of the special permit granting authority may be annulled where it is found to be arbitrary, capricious, unreasonable, or based on a legally untenable ground. Humble Oil & Refining Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 605 (1971). MacGibbon, supra, 356 Mass. at 639 (1970). Gulf Oil Corp. v. Board of Appeal of Framingham, 355 Mass. 275 , 277 (1969). The court, however, may not exercise the same discretionary latitude as the special permit granting authority, Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979), and "[t]o hold that a decision of the board denying a permit is arbitrary and capricious per se whenever the board, on the facts found by the trial judge, could have granted a permit, would eliminate the board's intended discretion." Gulf Oil Corp., supra, 355 Mass. at 277-278; the board's, not the Court's evaluation of the local circumstances controls. Subaru of New England, Inc., supra, 8 Mass. App. Ct. at 688.

The stipulation provides that the granting of relief to the plaintiff "would not create a nuisance or serious hazard to vehicles or pedestrians" and that "[t]here are adequate and appropriate facilities and services to Locus for the proper operation of the proposed use. . . ." The other condition required under the by-law to be met was that the "use as developed will not adversely affect the neighborhood." Since the predominant use of the neighborhood is single family residential structures with garages on parcels, the average area which is nearly fifty percent smaller than the proposed subdivided lots, the proposal by the plaintiff is entirely consistent with "the existing use which has been in effect at least since 1928. Accordingly the Board's decision rests on the remaining criterion, that the proposal was not "appropriate", the first of the four special permit requirements under Section 1.5B. There seems to be no legal justification for such a finding. It apparently rested on concerns expressed by some residents of the neighborhood which are not found within the by-law, i.e., charm of the neighborhood, the benefit of open space, the 1987 Town Meeting vote to increase minimum lot size requirements in some of the zoning districts as an indication of an overall desire to preserve large lots and the proscription of nonconfarming lots. The ZBA customarily had granted such applications as a matter of course and routinely allowed thirty to forty each year prior to the 1987 Town Meeting vote. The vote did not relate to the zoning district in which locus is situated, it did not amend the by-law to discontinue the granting of special permits for dimensional relief and did not make the criteria therefor more stringent. The present locus consisting as it does of an area much larger than any within the neighborhood was entitled to the granting of an exception, particularly since the subdivided lots also will exceed in size most of the neighborhood properties. While the instances where a board of appeals will be reversed for refusing to grant a special permit are rare, the Board still must act within the law and not arbitrarily or capriciously. In the present case, the plaintiff was entitled to relief and the Board's decision rested on a legally untenable ground.

In addition, the ZBA cited the general purpose and intent of the Marblehead Zoning By-Law as being a ground for finding the locus inappropriate for improvement. As stated above, the by-law's requirements "are intended to promote the health, safety, convenience and general welfare of the inhabitants of the Town of Marblehead." In upholding a section of the Uxbridge by-law which allowed for relaxation of the dimensional requirements where the proposed site for development adjoined "areas" which previously were built when the by-law permitted smaller lots, Justice Armstrong writing for the Appeals Court in Emond v. Board of Appeals of Uxbridge, supra, 27 Mass. App. Ct. at page 632, stated that

it is not unreasonable for a zoning by-law to adjust the impact of broadly drawn standards in neighborhoods where their enforcement would exceed what is necessary to preserve the character of, and protect property values in, the neighborhood. These broad purposes of zoning are not normally frustrated by uses wholly in character with the general pattern of development in the neighborhood and conforming to the dimensional standards previously and generally employed.

Such words accurately describe the present scenario.

The matter is remanded to the ZBA for the grant of the special permit subject, if the Board so elects, to the requirement that the existing garage be demolished and subject also to such other provisions as the ZBA reasonably may require.

Judgment accordingly.