AUCLAIR BUILDERS, INC. v. GEORGE DEKEON, WILLIAM C. PIKE, ARTHUR J. BOWER, GENE P. GRILLO, BRIAN S. DEMPSEY, BETSY A. CONTE, WILLIAM C. MACEK, THERESA BAUMANN and PAUL T. RICE, JR., as they constitute the CITY COUNCIL OF THE CITY OF HAVERHILL; THE BRADGATE COMPANY, INC. and the CITY OF HAVERHILL.

This is an appeal pursuant to the provisions of G.L. c. 40A, §17 of the denial by the City Council of the City of Haverhill of an application for a special permit covering land owned by the plaintiff on North Avenue in Haverhill in the County of Essex. There also is a count in the complaint alleging that §255-89 of the Haverhill Code is invalid as applied to locus and after the remand by this Court to the Council the complaint was amended to add in Count III an appeal from the second decision of the city Council with questions also presented as to the Open Meeting Law.

The plaintiff entered into a purchase and sale agreement with the Bradgate Company, Inc. ("Bradgate") which also brought an action seeking to overturn the action of the City Council in denying the special permit now before the Court. This second case bears Land Court Miscellaneous Case No. 130494. The cases were consolidated, but on January 25, 1990 the parties to the later action filed a stipulation of dismissal disposing of the matter. In addition, a like stipulation was joined in by all parties as to Bradgate's counterclaim in the present litigation. Bradgate was also dismissed by agreement as a defendant in the present action.

There remain outstanding motions filed by the parties and either not marked up or disposed of by the Court in open court. For purposes of the record I now deny any motion still outstanding.

A trial was held at the Land Court on January 26, 1990 and April 12, 1990 at both of which sessions a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. Witnesses called by the plaintiff were Ronald Auclair, the plaintiff's principal, William Pike, Vice President of the City Council and Dermot J. Kelly, a traffic engineer. The defendants called Donald S. Woodbury, the owner of condominium units at the Northside Condominium, Gerard Roccaprioci, a resident of Brickett Hill and an owner of a condominium unit there and Brian S. Dempsey, President of the City Council.

On all the evidence I find and rule as follows:

1. Auclair Builders, Inc., the plaintiff, is the owner of two adjoining parcels of land, one containing 2.7 acres and the other approximately 5 acres as shown on the assessors' plan of the area (Exhibit No. 1).

2. The locus abuts on the northeast a condominium development known as Northside Condominium. A second condominium development is known as Brickett Hill Condominium. The development contemplated by the plaintiff has been named Kensington Gardens, and constitutes the filling between two multi-family developments.

3. The locus is situated within a stone's throw of the New Hampshire/Massachusetts state line (provided the propellant of the missile has a strong arm).

4. On August 4, 1988 Bradgate applied for a special permit to construct a multi-family development at 468 and 478 North Avenue. The purchase and sale agreement above referred to was contingent on Bradgate's obtaining the required approval to construct 63 two-bedroom rental units in six two and one-half story buildings.

5. The locus is situated in the Residential, Rural Density (RR) zoning district in which single-family residences on minimum lot sizes of 80,000 square feet are permitted of right and multi­family developments are permitted by special permit.

6. On October 3, 1988 the City Council held a public hearing at which the planning director had recommended approval of the project subject to 19 conditions which were drafted and attached to the decision of the Council which conversely voted to deny the application. The Council vote was one in favor and seven opposed to the granting of the application. The decision was filed with the Haverhill City Clerk on April 18 of that year, and as presented to the Court, there were no reasons set forth for the Council's action in the decision, only statements by individual councilors. Accordingly, on appeal to this Court, a partial summary judgment was granted on March 1, 1989 remanding the matter to the City Council for further action and retaining jurisdiction pursuant to the dictates of MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515 (1976) requiring at least a minimum statement of reasons for disapproval.

7. In accordance with the order of the Court, the City council convened a second public hearing on April 4, 1989 and on April 11 by an eight to one vote, again denied Bradgate's application. The decision rested principally on the Council's concern that an additional multi-family development would unacceptably contribute to already undesirable traffic conditions along North Avenue which has become a popular means of access to and from New Hampshire for Haverhill residents, commuters and tourists. Additional reasons included the following:

2. The Planning Board recommended against the project. The council gives great weight to the advice of the Planning Board in determining the suitability of the project to the goals of the Master Plan.

3. The vacancy rate at adjacent Northside Condominium is high. Although a condominium, many units are owned by investors and held out for rental. There is no need for additional rental units in the immediate area in question.

4. The Council has not received a definitive answer on the authority of the Trustees of Northside Condominium to grant permission for this project to tie into and use the sewer system at Northside Condominium.

5. The proposed site is abutted by two multi-family projects. To allow a third in the area would have a detrimental affect on the neighborhood and on the existing single family residences in this RR zone. If allowed, this project would convert almost all of the RR land on its side of North Avenue to multi-family use.

6. The Master Plan does not contemplate conversion of entire segments of RR land to multi-family use.

7. The City is close to finalizing a new Master Plan.

8. The schools in the area are already filled to capacity, even after re-opening of the Smiley School. The project would have an adverse effect upon the schools.

9. Because of these findings of fact, the Council concludes that the project is not essential or desireable to the public convenience or welfare, a required finding under the provisions of Chapter 255-76 (D) (3).

10 . Because of these findings, the Council concludes that the requested use impairs the integrity and character of the district and is not in conformity with the goals and policies of the Master Plan and will create a danger to the general public because of traffic impact, all of which is contrary to the required findings under the provisions of Chapter 255-76 (D) (4).

Attached to the denial was the same list of 19 conditions as was attached to the October, 1988 denial.

8. There was uncontested testimony at trial by Mr. Dermot Kelly, plaintiff's traffic expert, to the effect that the source of the traffic problem along that portion of North Avenue related to an intersection in Plaistow, New Hampshire which requires but does not have a traffic signal. In addition, there was uncontested testimony by Mr. Kelly that there would be no degradation of current traffic conditions should the locus be developed as proposed, and the Planning Director concurred that any impacts would be minimal. The expert concluded that the proposed development would generate a total of 38 trips (6 entering and 32 exiting) during the morning peak traffic hours and would have a minimal impact on traffic conditions along North Avenue. The evening peak traffic conditions would consist of 45 trips with 30 of those entering the locus and 15 exiting. On a normal day the site would generate a total of 456 trips equally divided among those coming and going. The level of service would be high during each time but lowest during the evening peak.

9. North Avenue is generally about a 24 to 26 foot wide level roadway; if a car stops to turn into either of the existing two developments, the roadway is too narrow for vehicles behind it to pass on the right without running onto the lawn of the abutting homes. The intersection in Plaistow, New Hampshire is not signalized and during times of heavy peak travel, such as that during a Labor Day weekend, traffic backs up to the driveways into the two existing developments.

10. Section 255-76 of the Code governs generally the issuance of special permits in the City of Haverhill. The City Council is empowered by subsection "A" thereunder to hear and decide on special permit applications for multi-family residential development. The remaining relevant subsections provide as follows:

D. In applying for a special permit, the applicant need not demonstrate hardship since the basis for the action is of general benefit to the city as a whole. In granting a special permit, the [City Council], with due regard to the nature and condition of all adjacent structures and uses, and the district within which the same is located, shall find all of the following general conditions to be fulfilled:

(1) The use requested is listed in Table of Use and Parking Regulations as a special permit in the district for which application is made.

(2) Where pertinent, the use requested also meets the special permit conditions listed in Article XI.

(3) The requested use is essential and desirable to the public convenience or welfare.

(4) The requested use will not impair the integrity or character of the district or adjoining zones, nor be detrimental to the health, morals or welfare and will be in conformity with the goals and policies of the Master Plan.

E. In addition, the [City Council] shall find all special conditions set forth in Article XI, the Table of Use and Parking Regulations and the Table of Dimensional and Density Regulations for a particular use are complied with.

11. Article XI of Chapter 255 of the Haverhill Code sets forth various Special Permit Conditions, both generally and specifically applicable depending on the use. Section 255-89, entitled "Special conditions relating to multifamily dwelling units within the RR , RH , RU and IG Districts", provides in full as follows:

A. The proposed development must conform to the respective requirements of Article VI (Table of Dimensional and Density Regulations).

B. The development shall be served by both public water and sewerage systems.

C. The maximum continuous length of any building facade in any one direction shall not exceed two hundred fifty (250) feet.

D. The plan and roadway and respective utility improvements in the tract shall be subject to the definitive plan and performance guaranty requirements of the Rules and Regulations Governing the Subdivision of Land in the City of Haverhill, Massachusetts.

E. The services of a consultant to act as Clerk of the Works, directly responsible to the City Engineer, to assure that proper construction practices are implemented according to any standards or procedures set forth by the City Council as a condition for the issuance of the required special permit and according to the subdivision plans and specifications approved by the Planning Board, shall be required, upon the written recommendation of the City Engineer, for any multifamily development where new roadway and/or utility systems are required. Said Clerk shall be selected and reimbursed as outlined with §255-92.2, Clerk of the Works: cluster residential development, multifamily residential development and single-family residential development.

F. The developer shall install street identification signs on all rights-of-way and drives within the development. Said signs shall be in place upon completion of final paving of each respective way or drive.

G. The developer shall install streetlighting on all rights-of-way and drives within the development. The lighting shall be in place prior to paving of each respective way or drive.

In Section 255-90 is found the procedure to be followed by the City Council when sitting as a special permit granting authority. The only attack on technicalities in the present litigation stems from an alleged violation of the Open Meeting Law at a meeting prior to the April 4, 1989 public hearing where it is contended the Council went into executive session to consider its position.

12. Section 255-76 of the Code provides that absent specification otherwise, at the time the special permit is granted the permit pertains to the property and not to the individual who applied; in other words the special permit runs with the land and is not personal, all as the Appeals Court has held (and the statute now provides) in the case of a variance.

13. The only opposition at the hearing before the City Council appears to have been residents of the two existing developments, one on each side of the locus. If the testimony before the Court mirrored that before the City Council, the objections from a resident of one of the condominiums was grounded in snobbery and may have been a manifestation of the phenomenon of NIMBY. The plaintiff, of course, may always have resort to the provisions of G.L. c. 40B if he is able to meet certain of the chapter's requirements, but this is not an issue here. The only other opponent to testify at the trial was a member of the City Council who emphasized the master plan on which the appropriate authorities were working but which has not been completed and the inadequacy of schools to serve the area. There was no evidence at the trial as to the population mix contemplated by the plaintiff nor the actual school facilities in the City of Haverhill. Neither was any evidence offered as to the status of the Master Plan.

Standing of Plaintiff

The companion case brought by Bradgate was dismissed by agreement at the commencement of the trial of the present case. The City contended that dismissal of the Bradgate action in effect constituted the dismissal of the present case since it was Bradgate who had signed the application for a special permit. It is true that the application for the special permit was signed by Bradgate, but the plaintiff was required also to sign as owner of the locus. There is a question as to whether the signature on behalf of the plaintiff constituted the plaintiff a co-applicant with Bradgate. I find and rule that it does. In addition, it is clear that the owner of the real estate was a person aggrieved by the decision of the City Council and entitled to appeal pursuant to the provisions of G.L. c. 40A, §17. Butts v. Zoning Board of Appeals of Falmouth, 18 Mass. App. Ct. 249 (1984). It is far from clear that the grant of a special permit depends on the financial ability or other characteristics of the applicant, rather than on the viability of the project and its compatibility with the requirements of the zoning ordinance. The Appeals Court has ruled that it is the land, not the owner, which is determinative of the grant of a variance, and I find and rule that the same standard should govern the issuance of a special permit. Indeed the Haverhill Code recognizes the distinction that any decision will run with the land.

Standard of Review

It is well settled that a grant of a special permit is not a matter of right. It is, of course, the judgment of the applicable permit granting authority which controls and not that of the judge so long as the decision of the Board is neither arbitrary, capricious or legally untenable. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 (1979). The declination by a board to grant a special permit does not carry the obligation to set forth in as much detail the reasons for the decision as does the grant, but there still is a minimum which must be met for the court to uphold a board's decision. MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515 (1976). The Haverhill Ordinance has very general standards for the grant of all special permits which are found in §255-76 of the Code. Most of the subparagraphs express pious wishes rather than setting forth standards to guide the permit granting authority. This is particularly so of paragraph D which recites that "the basis for the action is of general benefit to the city as a whole." There is no criterion by which to judge such benefit. A like problem exists with subparagraph 3 as to the essential nature and desirability of the grant to the public convenience or welfare. However, the standard which is important in the resolution of this case and is one of those on which the Board based its decision is found in subparagraph 4, i.e., "the requested use will not inipair the integrity or character of the district or adjoining zone. . . ." The Code also sets forth in §255-89 special conditions relating to multi-family dwelling units all of which appear to have been met by the plaintiff. While the actual instrument granting an easement from the trustees of one of the adjoining condominium developments to the plaintiff to tie into either its sewerage system or to cross its land to reach the municipal sewerage system was not introduced, there was oral evidence that it had been given. One of the reasons for the Board's decision was that it had not received a definitive answer to the authority of the trustees to so act, if in fact they had, but this objection easily can be met by making the validity of the grant a condition to the special permit. Other reasons given by the Board include finalization of the new master plan, the filling of the schools to capacity, the vacancy rate at an adjacent condominium as negating the need for rental property and the recommendation of the Planning Board as entitled to weight. However, the only reason given by the Board which is persuasive to the Court, both in the light of the requirements of the sections of the Code and the quality of life of Haverhill citizens in this vicinity is the existence already of two large multi-family developments, one on each side of the site. This seems to be a valid reason for refusing approval since the City Council might well conclude that this impairs the integrity or character of the district since it was intended primarily to be a rural residential area. This is not a situation like that in Colangelo v. Board of Appeals of Lexington, 407 Mass. 242 , 245-246 (1990) where relief was granted to an applicant prior to and immediately thereafter the plaintiff but was denied to the plaintiff. The two multi-family developments already in place preceded the plaintiff's application for a special permit, and it is permissible for the Council to consider the impact on the neighborhood from a third multi-family development.

At the trial there was considerable testimony about the impact of traffic from the site. The City Council made traffic conditions a reason for the denial of the special permit. However, it does appear that it is not the use of the adjoining sites which abut the locus that have given rise to motor vehicle difficulties but the lack of a signalized intersection in the adjoining town and state. This condition should not be allowed to govern the Board's decision in the present case. See Triantafillou v. Board of Appeals of the Town of Middleton, Miscellaneous Case Nos. 126331 and 126391. This is all the more so where the Code does not refer to traffic and §255-89 relates to matters internal to the site.

Accordingly on all the evidence I find and rule that the City Council was justified in refusing to grant a special permit bsed on the impairment of the integrity of the zoning district. I further find and rule that while the criterion set forth for the grant of special permit may be vulnerable to attack, at least one of these was valid and the Council's reliance thereon justified.

Open Meeting Law

The plaintiff attacks the procedure followed during the second hearing before the City Council after the remand from this Court. The plaintiff claims that the proceedings were tainted by an executive session convened in contravention to the Open Meeting Law, G.L. c. 39, §§23A and 23B. The meeting in question appears from the transcript of the April 4, 1989 City Council meeting to have been called to discuss litigation strategy which 23B recognizes as a valid reason for an executive session.

Accordingly I uphold the refusal by the Haverhill City Council granting special permit to the applicant even though I find and rule that Auclair Builders, Inc. has standing to maintain this appeal.

Judgment accordingly.