MISC 129018

January 3, 1990

Essex, ss.



On August 5, 1988, David and Jane Cusick ("Plaintiffs") filed a complaint seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the City Council of Gloucester ("City Council" or "Council"), dated July 25, 1988, denying their application for a special permit to construct five single-family residential, rental units on a vacant parcel of land owned by them, located at 32 Eastern Point Road in Gloucester ("Locus").

The matter was tried on August 24, 1989 and September 6, 1989, at which times the proceedings were recorded and later transcribed by a court-appointed reporter. Twenty-one exhibits were introduced into evidence and nine witnesses offered testimony. All exhibits are incorporated herein by reference for purposes of any appeal.

On all of the evidence, I find the following facts:

1. As shown on Sheet No. 132 of the City of Gloucester Assessors' Maps (Exhibit No. 3), Locus is comprised of Lot No. 2, containing 14,866 square feet of land, 120.10 feet of frontage on Eastern Point Road and 93 feet of frontage on Grapevine Road, and Lot No. 3, containing 19,566 square feet of land and 97.90 feet of frontage on Grapevine Road.

2. That portion of Locus numbered Lot No. 2 lies entirely in the "R-3", or Medium Density Residential Zoning District. Lot No. 3 lies partly in the "R-3" zone and partly in the more restricted "R-2", or Low Density Residential Zoning District.

3. Section 2.1.3 (d) of the City of Gloucester Zoning Ordinance ("Ordinance") (Exhibit No. 15) provides in pertinent part as follows:

. . .when the boundary lines of a zoning district divide a lot having frontage on a street in a less restricted district, the provisions of the Ordinance covering the less restricted portion of the lot may extend not more than 25 feet from the district boundary. . . .

In accordance with Section 2.1.3(d), all parties hereto agree that Locus is governed by the regulations applicable to the less restrictive "R-3" zone.

4. As set forth in Section 3.2.1 of the Ordinance, multi­family dwellings located in the "R-3" zoning district are subject to the following dimensional regulations:

Minimum Lot Area (sq. ft.) 20,000

Minimum Lot Area (sq. ft.) per dwelling unit or per two guest units 5,000

Minimum Open Space (sq. ft.) per dwelling unit or per two guest units 3,500 (70%)Minimum Lot Width (ft.) 100

Minimum Lot Frontage (ft.) 80

Minimum Front Yard (ft.) (2) 20 (1)

Minimum Side, Rear Yards (ft.) 20 (1) Minimum Building Height (ft.) 30 (4)

(1) increase bv one foot for each foot by which building height exceeds 15 ft.

(4) Except that the City Council may grant a Special Exception for an increase in cases where such increase is judged by the Council to be not detrimental to the neighborhood because of view obstruction, overshadowing, or utilities considerations; but in no case may height exceed that permissible under applicable building codes.

The Plaintiffs' proposal complies in all respects to these dimensional requirements.

5. On March 30, 1988, the Plaintiffs, in accordance with Section 2.3.1 (4a) of the Ordinance, filed an application for a special permit with the City Council, seeking thereby to construct five attached, townhouse-style residential units on Locus (See Exhibit No. 7).

The Plaintiffs' proposal, which is not unlike other multi-family structures in the general surrounding area (See Exhibits No. 2 and 3), is laid out on certain plans introduced and accepted into evidence as Exhibits No. 7A and 7B. Specifically, the Plaintiffs' proposal entails the construction, and subsequent rental, of five single-family residential units, with ten parking spaces to be utilized in connection therewith. The units, which will be managed by the Plaintiffs, will be rented at a monthly rental rate of between $900.00 and $1,000.00. The entrance to such units will be off of Eastern Point Road, which road is wider and more readily accessible from Locus, than Grapevine Road. In addition, the construction of these units will result in no perceptible increase in traffic on Eastern Point Road, which traffic flow presently ranges from moderate to heavy, depending on the season and time of day. The immediate area surrounding the units will consist of 76% of open space, additional landscaping and the retention of many of the adult trees presently in existence on the property.

6. The procedure for reviewing a special permit application is set forth in Section (g) of the Ordinance, which Section reads in relevant part, as follows:

. . . Special Permits shall be granted by the Board of Appeals only if such Board makes determination that the proposed use will not have adverse effects which over balance its beneficial effects on either the neighborhood or the City, in view of the particular characteristics of the site and the proposal in relation to the site. The determination shall cite considerations of each of the following:

1. social, economic, or community needs served by the proposal;

2. traffic flow and safety;

3. adequacy of utilities and other public services;

4. neighborhood character and social structure;

5. qualities of the natural environment;

6. potential fiscal impact.

7. By letter dated May 18, 1988 (Exhibit No. 8B), S. Lawrence Colby, Jr., Fire Inspector for the Gloucester Fire Department, offered the City Council's Planning and Development Committee ("Planning and Development Committee") the following comments in support of the Plaintiffs' proposal:

In the opinion of the Fire Department, the four hour masonry wall [proposed in conjunction with the construction of the Plaintiffs' five single-family attached dwelling units] is the ideal wall and should be used as the fire wall in all newly constructed attached residential units.

The water flow in the area is about 730 gallons per minute. This flow, with the type of construction proposed is sufficient to handle a fire in one dwelling unit.

8. On May 26, 1988, the first phase of review of th Plaintiffs' application was conducted, with the Planning and Development Committee voting unanimously to grant such application (See Exhibit No. 8).

9. By letter dated June 1, 1988 (Exhibit No. 11), Paul W. Day, Director of the Gloucester Department of Public Works, rendered his opinion that "at the present time, there are more than adequate facilities at the location of 32 Eastern Point Road. . ." and that the DPW "has no objections to the proposed construction of 5 housing units at the requested location."

10. In the opinion of Everett Saunders, Sewer Operations Manager for the Gloucester Department of Public Works, the sewer pipes presently located within the sewer infrastructure at Eastern Point Road are adequate for the five dwelling units proposed by the Plaintiffs. This opinion is incorporated in Mr. Day's letter of June 1, 1988.

11. On June 7, 1988, the City Council held a public hearing on the Plaintiffs' special permit application, at which time the City Council voted 5-3 to deny the application. In its formal decision, dated July 25, 1988 (Exhibit No. 10), however, the Council does not state any clear reasons for this denial.

The Court's review of the City Council's proceedings relative to the Plaintiffs' special permit application is delineated in G.L. c. 40A, §17, which provides:

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 Court on appeal hears the matter de novo, makes its own findings and affirms the decision of the special permit granting authority unless it rests 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, Inc. 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 special permit granting authority, Garvey at 856; Subaru at 486-488; Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969), as its review is limited solely to the validity of that 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).

The applicant for the special permit bears the burden of producing evidence at trial that he has met the statutory prerequisites and that, accordingly, the Board's decision was rendered in excess of its authority. Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981); Boyajian v. Board of Appeals of Wellesley, 6 Mass. App. Ct. 283 , 284; Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977).

One particular statutory prerequisite to a finding by the court that the special permit granting authority acted properly in rendering its decision is a finding that such authority complied with G.L. c. 40A, §15, a portion of which reads as follows:

. . . The [City Council] shall cause to be made a detailed record of its proceedings . . . setting forth clearly the reasons for its decision. . . (emphasis supplied).

In consideration of the foregoing principles, I find that, in merely reciting the opinions and comments of various City Council members with respect to the Plaintiffs' special permit application, the Council's decision lacks "definite statements of [its] rational causes and motives", Gaunt v. Board of Appeals of Methuen, 327 Mass. 380 , 382 (1950), and fails to set forth "substantial facts which may rightly move an impartial mind, acting judicially, to [its stated conclusion]". Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Williams v. Building Commissioner of Boston, 1 Mass. App. Ct. 478 , 480 (1973).

Accordingly, I find that such subjective recitations do not amount to "reasons", as contemplated by G.L. c.40A, §15. Noting, however, that this Court's review of the Plaintiffs' special permit application constitutes a "de novo" hearing, I find that, pursuant to Section (g) of the City of Gloucester Zoning Ordinance, the Plaintiff's proposed construction of five single-family residential units, which proposal is for a form of housing not unlike others in the immediate vicinity, will serve the housing needs, although not necessarily the low-income housing needs, of the Gloucester community. It thus follows that, in addressing the housing needs of the City of Gloucester, the Plaintiffs' proposal will also contribute to the City's economic/fiscal needs, specifically by a generation of revenue from real estate taxes assessed against the individual units. In so finding, however, I note, without ruling thereupon, that there may be some question as to the legal validity of that portion of the Ordinance which cites "potential fiscal impact" as a consideration in the City Council's review of a special permit application. Additionally, I find that the Plaintiffs' proposed use of Eastern Point Road as the means of access to, and egress from, the units is consistent with the Council's concern for traffic flow and safety. The construction of these five additional, single-family units on Eastern Point Road will result in an insignificant, if any, increase in the existing traffic on such road. Moreover, I find that, in accordance with uncontradicted testimony introduced at trial, existing water mains and water flow, utilities and sewer services are all adequate to safely and efficiently accommodate the five units proposed by the Plaintiffs. Further, I find that the "four-hour masonry wall" proposed by the Plaintiffs will serve as an added safety measure for the units. Finally, I find that, by landscaping the area around the units, retaining many of the existing adult trees situated on the land and leaving 76% of open space thereupon, the Plaintiffs will preserve the "qualities of the natural environment".

I rule accordingly that, as the Plaintiffs' proposal satisfies the six criteria enunciated in Section (g) of the Ordinance, it will have no adverse effects, which will outweigh its beneficial effects, on either the neighborhood or the City of Gloucester. The City Council thus exceeded its authority in refusing to grant the Plaintiffs' application for a special permit. The decision of the City Council is therefore annulled and the special permit is hereby granted.

The Plaintiffs have submitted requests for findings of fact and rulings of law, which I have considered. Certain of such requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings and rulings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.