WILLIAM S. MacLEOD and DOUGLAS MIFFLIN and MacMIFF DEVELOPMENT CORPORATION vs. TOWN OF NORTH ANDOVER ZONING BOARD OF APPEALS, FRANK SERIO, JR., CHAIRMAN, ALFRED E. FIRZELLE, ESQUIRE, AUGUSTINE NICKERSON, WILLIAM SULLIVAN and WALTER SOULE and TOWN OF NORTH ANDOVER PLANNING BOARD, PAUL A. HEDSTROM, GEORGE PERNA, JOSEPH MAHONEY and JOHN SIMONS.

Miscellaneous cases No. 133740 and 133741 were commenced in the Essex County Superior Court on July 22, 1985 and November 4, 1988, respectively, [Note 1] with the North Andover Planning Board ("Planning Board") being added as a Party-Defendant in both actions on August 8, 1990. These matters were consolidated for trial on February 17, 1989 and thereafter, on April 19, 1989, were transferred to the Land Court.

By Miscellaneous Case No. 133740 William S. MacLeod ("MacLeod"), Doglas Mifflin ("Mifflin") and MacMiff Development Corporation ("MacMiff"), seek judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Defendant, North Andover Zoning Board of Appeals ("ZBA"), denying MacMiff's petition for a special permit to construct a single-family residence within one hundred (100) feet of a tributary to Lake Cochichewick, on land located at 163 Salem Street in North Andover ("Locus"). Mifflin and MacLeod bring Miscellaneous Case No. 133741, pursuant to the provisions of c. 40A, §17, seeking judicial review of a further decision of the ZBA, denying their petition for reconsideration of MacMiff's application for relief from the requirements of the North Andover Zoning By-law ("By-law") (Exhibit No. 16), with respect to the aforesaid construction on Locus.

These consolidated appeals were tried in the Land Cort on April 6, 1990, at which time the Court appointed a stenographer to record and transcribe the proceedings. Three (3) witnesses testified, eighteen (18) exhibits were admitted into evidence and one chalk was presented to assist the Court. The chalk and all of the exhibits are incorporated herein for purposes of any appeal. At the time of trial, the Defendant ZBA also filed a motion, pursuant to Mass. R. Civ. P. 12 (b) (6) or 12 (b) (1), to dismiss the Plaintiffs' actions for failure to state a claim upon which relief can be granted and/or for lack of subject matter jurisdiction.

On August 8, 1990, the Court allowed the Plaintiffs' motion to amend its complaints to conform to the evidence introduced at trial. Accordingly, the Plaintiffs set forth an additional count in each complaint, said counts being brought pursuant to G.L. c.231A, §1, for declarations that the special permit application filed with the Planning Board on April 9, 1985 was deemed to have been granted by such Board on June 14, 1985.

On all of the evidence, I make the following findings of fact:

1. MacMiff acquired title to a parcel of land ("MacMiff Parcel"), of which Locus constituted a part, by deed from William and Constance McAndrew, dated October 16, 1984, recorded at Book 1881, Page 115 in the Essex North District Registry of Deeds (Exhibit No. 1). This parcel was then known as and numbered 175 Salem Street in North Andover.

2. In late 1984, MacMiff submitted a plan ( "ANR Plan" or "Plan") (Exhibit No. 3) to the Planning Board for its approval under the provisions of G.L. c. 41, §81B. The Plan purported to divide the MacMiff Parcel into two (2) lots - Lot No. 1, which is now referred to as Locus, containing 98,005 square feet of land, and Lot No. 2, containing 43,560 square feet of land.

On or about November 15, 1984, the Planning Board endorsed the Plan "approval under the Subdivision Control Law not required" and, thereafter, it was recorded as Plan No. 9710 in the Essex North District Registry of Deeds. This action by the Planning Board had the effect of freezing the zoning of the MacMiff Parcel as to use until November 15, 1987.

3. As shown on the Town of North Andover Zoning Map (Exhibit No. 5), Locus is located in North Andover's Watershed Zoning District.

4. On April 9, 1985, MacMiff submitted an application to the Planning Board, seeking a special permit to construct a single­ family residential dwelling on Locus, at a point located seventy­eight (78) feet from a tributary to Lake Cochichewick and within the Watershed District (See Exhibit No. 8). MacMiff proposed an on-site subsurface sewerage disposal system in connection with this construction, which system would utilize a septic tank and seepage pits, of sufficient capacity to accommodate flows of up to 600 gallons per day (See Exhibit No. 4).

5. Lake Cochichewick is the source of the public drinking water supply for the Town of North Andover.

6. On or about April 14, 1988, the North Andover Board of Health issued its approval to MacMiff's proposed subsurface disposal design (See Exhibit No. 6). Thereafter, on April 23, 1988, the North Andover Conservation Commission issued its determination that MacMiff's proposed construction on Locus "is within the Buffer Zone, as defined by in the regulations, but will not alter an Area Subject to Protection Under the Act . . ." (See Exhibit No. 7).

7. At all times relevant hereto, Section 4.133 (1) of the By-law has read as follows:

Watershed District

(1) Purpose:

The Watershed District surrounding Lake Cochichewick, source of water supply, is intended to preserve and maintain the filtration and purification function of the land, the ground water table, the purity of the ground water and the lake, to conserve the natural environment and to protect the public health, safety and welfare.

8. At the time of MacMiff's application for a special permit, Sections 4.133 (3) (c) and (d) of the By-law read as follows:

c) A no-cut buffer zone shall exist one hundred fifty (150) feet horizontally from the annual mean high water mark of Lake Cochichewick and twenty-five (25) feet horizontally from the edge of all tributaries in the watershed.

d) No construction shall occur two hundred fifty (250) feet horizontally from the annual mean high water mark of Lake Cochichewick and one hundred (100) feet from the edge of all tributaries, except by Special Permit (emphasis added).

9. As of April 9, 1985, the application filing date, Section 2.65 of the By-law designated the Planning Board as the "Special Permit Granting Authority" of all special permits to "The Watershed District" (See Exhibit No. 16).

10. At all times relevant hereto, Section 10.31 of the By-law provided that the special permit granting authority may not approve a special permit application unless it finds, in its judgment, that all of the following conditions have been met:

a) The specific site is an appropriate location for such a use, structure, or condition;

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;

e) The Special Permit Granting Authority shall not grant any Special Permit unless they make a specific finding that the use is in harmony with the general purpose and intent of this By Law.

11. At a Town Meeting held on April 28, 1985, nineteen (19) days after MacMiff had applied for a special permit, and before such application was acted upon by the Planning Board, the Town of North Andover voted to approve five (5) "Watershed District Preservation Articles", numbered eleven (11) through fifteen (15) (See Exhibit No. 9). The Articles read in relevant part as follows:

Article 11: . . . to raise and appropriate or take trom available funds the sum of $75,438 to be expended under the direction of the Board of Selectmen for the purpose of undertaking comprehensive planning studies in connection with the preservation of Lake Cochichewick and the public drinking water supply of the Town . . .

Article 12: . . . to amend Section 4.133, Watershed District, of the Zoning By-law, by adding a pargraph (4), as follows:

(4) Lake Cochichewick Preservation Amendment

a) Notwithstanding anything contained in this bylaw to the contrary, no permits shall be issued for the construction of any new building, structure, road or driveway or for earth removal, except for the proposed municipal water filtration plant, within the watershed District for a period of three (3) years from the effective date of this amendment.

b) This amendment shall not apply to any renovation, alteration, or addition to an existing building, structure, road, driveway, or any structure in agricultural or horticultural use.

c) A use variance may be granted by the Board of Appeals for the issuance of a building permit within this three-year period but not for a use not otherwise allowed by the district regulations.

Article 14: . . . to amend Sec.tion 4.133 Watershed District by deleting the following from subsection (d) of paragraph (3):

"except by Special Permit"

and add the following in its place:

The intent herein is dimensional and the North Andover Board of Appeals shall grant a variance upon a showing of substantial hardship owing to the soil, shape or topography of the land, including the right to cross such tributaries . . . (emphasis added).

Article 15: . . . to amend Section 2.65, Special Permit Granting Authority, of the Zoning By-law by deleting the following words:

"the Watershed District" . . .

The effect of these Amendments was to require a variance from the ZBA, rather than a special permit from the Planning Board, in order to perform construction in the Watershed District. Although not material for reasons stated below, it would appear that, despite the stated intention of a "dimensional" change, the change evidenced by the By-law Amendments is a change in use, inasmuch as a variance, and not a special permit, is now required for construction in the Watershed District.

12. On or about May 17, 1985, MacMiff submitted an "Application for Relief from the Requirements of the Zoning Ordinance" (Exhibit No. 10) to the ZBA. By this Application, MacMiff sought a special permit to construct the aforesaid single- family residence on Locus, said dwelling to be located within one hundred (100) feet of a tributary to Lake Cochichewick.

MacMiff did not pursue its special permit application before the Planning Board nor did the Planning Board ever take any action with respect thereto.

13. On July 2, 1985, following a public hearing on the matter, the ZBA filed its decision on MacMiff's special permit application with the North Andover Town Clerk (See Exhibit No. 12). In its decision, the ZBA voted unanimously to deny MacMiff's application for the following reasons:

. . . the provisions of Section 10.31 were not satisfied, specifically, that the site is not appropriate because of the lack of a town sewer. The provisions of Section 4.133 (1) were also referenced and the grant of the permit would not protect the public health and welfare. The Board also took note of the action of Town Meeting, prohibiting construction around the Lake and pending the study of the Lake.

14. On July 22, 1985, MacMiff filed an appeal of the ZBA's decision with the Essex County Superior Court, said action being referred to herein as Miscellaneous Case No. 133740.

15. By deed from MacMiff dated September 2, 1986, recorded at Book 2306, Page 87 in the Essex North District Registry of Deeds (Exhibit No. 2), Mifflin and MacLeod acquired title to Locus as tenants in common.

16. On or about September 6, 1988, Mifflin and MacLeod filed a petition for reconsideration of MacMiff's 1985 application. for relief from the requirements of the By-law (See Exhibit No. 11).

17. At a public hearing held on October 11, 1988, the ZBA voted to deny the application for reconsideration, on the ground that such petition was not properly before such Board. Specifically, the ZBA noted that "there shall be no reconsideration of a decision of the Board, except upon written request of the applicant or a person aggrieved by the decision filed with the clerk not later than ten (10) days after the filing of the decision with the Town Clerk" (Exhibit No. 17).

18. On November 4, 1988, Mifflin and MacLeod filed an appeal of the ZBA's denial with the Essex County Superior Court, said action being referred to herein as Miscellaneous Case No. 133741.

Massachusetts General Laws Chapter 40A, Section 17 provides in relevant part, as follows:

Any person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the land court department . . . 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 . . .

In reviewing such appeals, the Court hears the matter de nova, makes independent findings of fact and affirms the decision of the special permit granting authority 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. 35 , 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). Insofar as the Court's review is limited to the validity of the special permit authority's action in granting or denying the special permit application, 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 Court is prohibited from substituting its judgment for that of such authority. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969); Subaru at 486-488; Garvey at 856.

Following the endorsement of the ANR Plan, MacMiff, on April 9, 1985, submitted its special permit application to the Planning Board (See Finding No. 4). After the April 28, 1985 Amendments to the By-law, however, the Planning Board no longer had authority to hear or act upon such applications. This apparently was understood by MacMiff, inasmuch as it filed an application for a special permit with the ZBA on May 17, 1985. The ZBA properly considered the application in accordance with the standards set forth in Section 10.31 (Special Permit) of the By-law, inasmuch as MacMiff's right to have its application heard and considered under Section 10.31 was preserved by the aforesaid endorsement of the ANR Plan. In any event, I find that the ZBA did not act unreasonably or exceed its authority in denying MacMiff's special permit application.

Generally speaking, a board's decision to deny a special permit does not require detailed findings. See Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 162 (1962); Board of Appeals of Southampton v. Boyle, 4 Mass. App. Ct. 824 , 825 (1976). The record before the Court indicates that the ZBA's decision was based primarily on the proposed project's lack of Town sewer. I find this determination, which was reached in accordance with the Town's interest in preserving the purity of Lake Cochichewick, to be reasonable in view of the requirement, under Section 10.31 (d) of the By-law, that the special permit granting authority find that "adequate and appropriate facilities will be provided for the proper operation of the proposed use".

As to MacMiff's filings with the Planning Board on April 9, 1985, I find that, by its subsequent filings with the ZBA on May 17, 1985, MacMiff had waived any right under such prior fiing. Moreover, since the Planning Board had no authority to hear or act upon the pending application after April 28, 1985, it could not thereafter approve the same by nonaction or otherwise. I find further that the ZBA's denial of Mifflin and MacLeods' 1988 application for reconsideration was proper and did not exceed its authority for the reasons stated by the ZBA and for the applicants' apparent failure to comply with G.L. c. 40A, §16. I note further that, even if the ZBA had agreed to reconsider MacMiff's special permit application, it is likely that the petitioners therefor would be faced with variance standards, rather than those of a special permit, inasmuch as the zoning protection afforded them under G.L. c. 40A, §6 had expired in November of 1987.

In consideration of all of the foregoing, I rule in summary that the ZBA's denial of MacMiff's special permit application, as well as its subsequent affirmation of this decision in October of 1988, are reasonable in light of the By-law Amendments and, accordingly, must be upheld.

The Plaintiffs and Defendants have filed requests for findings of fact and rulings of law, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, insofar 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.