On June 1, 1988, the Plaintiffs, Anthony and Mary Williams ("Plaintiffs"), filed a complaint seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Defendant, City Council of the City of Woburn ("City Council" or "Council"), denying their application for a special permit, pursuant to Section 5.1 (2) (a) of the City of Woburn Zoning Ordinance ("Ordinance"), to convert their single-family dwelling, located at 22 Reed Street in Woburn, to a two-family residence. Alternatively, the Plaintiffs seek a declaration that section 5.1 (2)(a) of the Ordinance is invalid as applied to their property.
The matter was tried on August 29, 1990, at which time the Court appointed a stenographer to record, and later transcribe, the testimony. Three (3) witnesses testified and two (2) exhibits, all of which are incorporated herein for purposes of any appeal, were introduced into evidence.
On all of the evidence before the Court, I make the folloing findings of fact, certain of which have been admitted by the Defendants in response to the Plaintiffs' requests for admissions:
1. For the past twelve (12) years, the Plaintiffs have owned and resided at 22 Reed Street, which property is located in a residential ("R-2") zoning district of Woburn. Ths property is improved with a single-family residence and two-car garage, and contains approximately 14,143 square feet of land, with frontage on both Reed Street and Brandon Court (see Exhibit No. 2).
2. Reed Street is a paved way of approximately forty (40±) feet in width, with a traffic flow which is generally light in nature. On-street parking exists on Reed Street and, to an even greater extent, on neighboring streets, such as Foster and Monroe Streets. As shown in part on Map No. 25 of the Woburn Assessors' Maps (Exhibit No. 2), Reed Street runs in a northerly direction off of Pleasant Street, a heavily traveled thoroughfare leading to the center of Woburn.
3. Detached two-family dwellings and conversions of existing single-family dwellings are allowed in the R-2 zone upon the issuance of a special permit from the City Council (Ordinance, Section 5.1 (2)(a)).
4. In the R-2 zoning district, within three hundred (300) feet of the Plaintiffs' residence, approximately 59% of the homes are two-family dwellings and approximately 40% are single-family dwellings. The remaining 1% is comprised of multi-family residences.
5. In February of 1988, the Plaintiffs applied to the City Council for a special permit, pursuant to Section 5.1 (2) (a) of the Ordinance, to convert their home to a two-family residence. The Plaintiffs' purpose in applying for the permit was to create two apartments, one of which would be occupied by them and their two (2) children, ages seven (7) and eleven (11), and the other of which would be rented out to a tenant, or tenants, for a stated monthly fee. The Plaintiffs contemplated that, at a future date, the second apartment would be occupied by one of their children and his or her family.
6. Pursuant to Section 11.5 of the Ordinance, the City Council "shall not issue a special permit unless it finds that the use which is the subject of the application will meet the conditions specified below, and in addition any and all conditions specified for the permit elsewhere in this ordinance." Of these specified conditions, the following are the most pertinent hereto:
1. Satisfactory provision and arrangement of ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control and access in case of fire or catastrophe. If traffic due to the proposed use is projected to exceed the capacity of existing roadways, a service road or divided entrance drive may be required by the City Council (emphasis added).
8. The proposed use or structure will not be adverse to the general purposes of this ordinance.
7. On May 3, 1988, the City Council held a duly advertised public hearing on the Plaintiffs' special permit application. At the close of the hearing, the Council voted 5-4 to deny the application, but gave no reasons for its decision at that time.
8. On May 17, 1988, the City Council reconvened and, after voting to affirm 5-3, one member then being absent, its denial of the Plaintiffs' application, rendered a formal decision. This decision cited the following three (3) reasons for the denial:
1. A grant would be inconsistent with the purposes of the Zoning Ordinance to prevent overcrowding, insofar as there have been numerous two-family conversions in that neighborhood over the past years.
2. The street is narrow and would be too congested and possibly hazardous if another multi-family dwelling were allowed.
3. Previous grants of two-families in the area were primarily under old 1970 Zoning Ordinance, only one being under current Ordinance.
In special permit appeals brought pursuant to G.L. c. 40A, §17, the reviewing court hears the matter de novo, makes its own findings of fact and, on the facts so found, affirms the decision of the permit granting authority unless it is determined to be based on some legally untenable ground or is unreasonable, whimsical, arbitrary or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); 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). Insofar as the court's review is limited to the legal validity of the permit granting authority'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), it may not substitute its judgment for that of the permit granting authority. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969).
Denials of special permit applications are within the discretion of the local permit granting authority, which is, in this case, the Woburn City Council. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559-560; Gulf Oil Corp. at 277-278; MacGibbon at 638. The Court's duty in this instance is therefore to a ascertain that the Council acted fairly and reasonably on all of the evidence presented to it and that the reasons cited in support of its decision have a substantial basis in fact and were not mere pretexts for arbitrary action, or veils for reasons which are unrelated to the purposes of the Zoning Ordinance. Vazza Properties. Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). Here, the City Council's decision to deny the Plaintiffs' special permit application was based on its concerns that the two-family conversion proposed by the Plaintiffs will cause overcrowding within the neighborhood and traffic congestion on Reed Street and adjacent roadways.
Inasmuch as the Ordinance expressly includes "traffic flow and control" among the factors which the Council may consider in deciding to grant or deny a special permit application, I find that the Council acted within its discretion in citing "traffic congestion" as a reason for its denial in this instance. In addition, I find this ground for denial to contain basis in fact. The parties have stipulated that approximately 59% of the residences lying within three hundred (300) feet of the Plaintiffs' home in the R-2 zoning district are already two-family residences. In addition, testimony and evidence reveal that onstreet parking exists on Reed Street and to an even greater extent, on the adjacent ways known as Foster Street and Monroe Street. Further, even though Reed Street itself is lightly traveled, it intersects with a heavily traveled main street leading to the center of the City. Accordingly, despite the absence of expert testimony relative to the existing traffic conditions on and around Reed Street, the record before the Court reveals that the general area in which the Plaintiffs propose to convert their single-family home to a two-family home is susceptible to traffic congestion and potential hazards associated with on-street parking. Inasmuch as the City Council determined these factors to be substantial problems, and as it is its assessment of the seriousness of the situation, and not the reviewing judge's, which must control, I find that the Council did not exceed its authority or abuse its discretion in citing "traffic" as a basis for denying the Plaintiffs' application for a special permit. See Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973) (rescript opinion).
The City Council also cites "overcrowding" as a basis for its denial of the Plaintiffs' special permit application. Inasmuch as the prevention of overcrowding of land is an express purpose of the Ordinance under Section 1 thereof, I find the Council's action to be consistent with Section 11.5 (8) of the Ordinance, which provides that the Council "shall not issue a special permit unless it finds that the use which is the subject of the application will not be adverse to the general purposes of [the] ordinance." Although I would note that if the City Council habitually applies "overcrowding" as a basis for denying speciai permits to all structures in the R-2 zone, it would, in essence, be creating a prohibited, rather than a permitted, use, I find no such evidence in the record before me. Moreover, I do not find this to be the case inasmuch as zoning is a local matter, Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 117 (1955); Martin v. Town of Rockland, 1 Mass. App. Ct. 167 , 169 (1973), and much weight must be accorded the judgment of the City Council, which is presumed to be familiar with local conditions, such as those associated with Reed Street and the surrounding area. See Burnham at 117; Beckett v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96 , 101 (1978).
Despite the fact that the City Council and I may differ in judgment on whether the Plaintiffs' special permit application should have been allowed on the instant facts, I cannot rule, in consideration of all of the foregoing, that the such local legislative body erred as a matter of law in its decision to deny the permit. Accordingly, for the above reasons, the decision of the Woburn City Council must be sustained.
Having ruled that the City Council's denial of the Plaintiffs' application for a special permit to convert a single-family residence to a two-family residence did not exceed its authority and must be upheld, the Plaintiffs seek a determination that Section 5.1 (2) (a) of the Ordinance is invalid as applied to their land. The test for determining the validity of a zoning ordinance is whether it furthers any purpose of the Zoning Act, G.L. c. 40A, §§2 and 3, which purposes include securing safety from fire and other dangers, lessening congestion in the streets, preventing the overcrowding of land, providing adequate light and air, avoiding undue concentration of population and facilitating provisions for water, sewerage and other public requirements. Cross v. Planning Board of Chelmsford, 345 Mass. 618 , 621 (1963); Moss v. Town of Winchester, 365 Mass. 298 , 299 (1974); MacNeil v.Town of Avon, 386 Mass. 339 , 340 (1982); Fogelman v. Town of Chatham, 15 Mass. App. Ct. 585 , 588 (1983). Every presumption is to be indulged in favor of the ordinance, 122 Main Street Corporation v. City of Brockton, 323 Mass. 646 , 649 (1949), and it will be upheld unless found to be arbitrary and unreasonable, with no substantial relationship to the public health, safety, morals or general welfare. Schertzer v. City of Somerville, 345 Mass. 747 , 751 (1963); MacNeil at 340. Where the reasonableness of a zoning ordinance is fairly debatable, the judgment of the local legislative body which gave its being will be sustained. Crall v. City of Leominster, 362 Mass. 221 , 233 (1972). The petitioner bears the heavy burden of establishing to the contrary. Sturges v. Town of Chilmark, 380 Mass. 246 , 256 (1980).
Applying these well-settled principles to Section 5.1 (2) (a) of the Woburn Zoning Ordinance, I find that, in requiring a special permit for two-family residences and conversions of single-family residences to two-family residences, in the R-2 zone, the City advances the legitimate zoning objectives of preventing overcrowding of land, lessening congestion in the streets and avoiding undue concentration of poplation. Additionally, I find that, in view of the conditions affecting Reed Street and the general surrounding area, all as discussed above, Section 5.1 (2) (a) is valid as it has been applied to the Plaintiffs' land.
In consideration of all of the foregoing, I rule that the decision of the Woburn City Council, denying the Plaintiffs' application to convert a single-family residence, located at 22 Reed Street in the R-2 zoning district, to a two-family residence, did not exceed its authority and must be affirmed. I further rule that Section 5. 1 (2) (a) of the Woburn Zoning Ordinance, which requires a special permit from the City Council for such conversions, is valid as applied to the Plaintiffs' land.