TRUST UNDER THE WILL OF PAUL J. KEATING and P.J. KEATING COMPANY vs. ROBERT BOSTROM, GENE DILDA, DEBRA JONES, BARRY LIGHT and EDWIN WEST, as they are members of the ZONING BOARD OF THE TOWN OF TOWNSEND.

Plaintiffs appeal under G.L. c. 40A, §17 a denial by the Zoning Board of Appeals (the "Board") of the Town of Townsend (the "Town") of a special permit to remove gravel from a parcel of land ("Locus") located on Tyler Road in Townsend. The plaintiff trust (the "Trust") is the owner of Locus. The plaintiff P.J. Keating Company (the "Company") is an affiliate of the Trust and is engaged in the sand and gravel business.

The parties filed a joint pre-trial memorandum. A trial was held on January 17, 1991, at which testimony was taken before a court stenographer, who has prepared a transcript. Seventeen exhibits, some with multiple parts, were introduced. The exhibits are incorporated in this Decision for purposes of any appeal. Eight witnesses testified. Plaintiff called Paul Keating, Chief Executive Officer of the P.J. Keating Company; John Keating, an employee at the P.J. Keating Company; Phillip Bartlett, Highway Superintendent for the Town; William May, Chief of Police of the Town; and Robert O'Neil, an environmental consultant. Defendant called John Wilder, Jane Wilder and Mary Curran, all residents of Tyler Road. The Court took a view of the Locus on February 5, 1991.

On all the evidence I find and rule as follows:

1. Section 6.3 of the Zoning By-law of the Town, as amended in 1978, allows large scale removal of gravel by special permit of the Board. That section was in effect in February, 1983 when the Trust filed for a special permit under Section 6.3.

2. On June 24, 1983, the Board granted to the Trust a special permit (the "1983 Permit") with seventeen restrictions to allow the removal of gravel from land on Tyler Road in Townsend for fifteen months.

3. Residents of Tyler Road appealed to the Superior Court. On May 2, 1984, the Superior Court dismissed the complaint.

4. Appellants appealed to the Appeals Court. On January 2, 1986, the Appeals Court modified the Superior Court's judgement and affirmed.

5. On April 9, 1987, the Company filed with the Town Clerk of Townsend a reapplication for a special permit to allow the removal of gravel from Locus.

6. In 1987, the Board consisted of five members and two alternates. The five members were Robert Bostrom, Debra Jones, Edwin West, Gene Dilda and Barry Light. The two alternates were William Wilkinson and William Wood.

7. On May 13, 1987, the Board conducted a public hearing to discuss the Company's application. The five members and alternate Wilkinson were present. In order to receive information from the Conservation Committee and the Highway Department, the Board voted to continue the public hearing until May 20, 1987.

8. On May 20, 1987, the site was viewed and the public hearing continued. Board member Edwin West did not attend this portion of the hearing.

9. After the public hearing, the Board conducted a series of working sessions to discuss the application, including sessions on July 22, 1987, July 27, 1987 and July 28, 1987.

10. Board member Barry Light did not attend the working session on July 22, 1987, and Board member Gene Dilda did not attend the working session on July 28, 1987.

11. The working sessions included discussion of possible conditions and restrictions that might be imposed on the special permit, should one be granted, as well as the findings of fact that were approved by the Board at its August 3, 1987 meeting.

12. On August 3, 1987, the Board denied the application by a vote of three in favor, two opposed. Members Bostrom, Jones and Light voted to grant the special permit; members Dilda and West voted to deny the special permit.

13. At the Board's August 5, 1987 meeting, it was announced that Town Counsel had determined that the August 3, 1987 vote on the application was invalid because Board member West should not have voted, since he had missed the continuation of the public hearing on May 20, 1987. Alternate Wilkinson was requested to vote in place of Board member West.

14. At the August 5, 1987 meeting, the Board again denied the application by a vote of three in favor, two opposed. Members Bostrom, Jones and Light voted in favor of the application; members Dilda and alternate Wilkinson voted against the application. Member West abstained.

15. At the Board's August 10, 1987 meeting, it was announced that, upon advice of Town Counsel, alternate Wilkinson's vote against plaintiff's application could not be counted because alternate Wilkinson had not been sworn in as a Board member when he voted. As a result, Town Counsel advised that the August 5 vote on plaintiff's application was three in favor and one opposed to granting the special permit; therefore, the permit was denied.

16. The Board filed its decision with the Town Clerk on August 14, 1987. The reasons stated for the denial in the decision are:

the board found that a gravel removal operation would have a substantial adverse effect on the present and future character of the neighborhood due to the magnitude of the operation and to traffic flow, noise and safety conditions and would have a detrimental effect on the natural resources (the land in question). Parenthesis in original.

17. Plaintiffs filed this action September 1, 1987. Both parties moved unsuccessfully for Summary Judgement, but the Court made detailed findings of fact dated April 11, 1989.

18. On February 2, 1986, when the Appeals Court's Memorandum and Order resulted in final judgment, the 15 month special permit period commenced. The Company began preparing Locus for the removal of gravel in conformity with the 17 conditions imposed by the Board. It opened up less than 10 acres of Locus, immediately at the end of the access strip. When it finished work (it alleges full compliance with the conditions, which defendants deny), the Company had only approximately one week in which to remove sand and gravel from Locus before winter weather required the suspension of operations. Since the special permit expired in early Spring of 1987, the Company did not resume operations.

19. The Company has been in business since 1921, first as a road contractor and then since about 1940 primarily as a provider of ready-mix concrete and blacktop paving. Although its business has expanded, its base is the materials business, obtaining gravel and stone and incorporating them into blacktop and concrete for sale to the public. Present management includes the third generation of the Keating family.

20. The Trust acquired Locus in 1970. Locus has approximately 100 acres. It is predominantly woodland, with a portion near the entrance having been cleared as a result of the Company's limited gravel removal operations to date. Locus contains sand and gravel of a type particularly suited to the Company's operations, particularly in conjunction with a blacktop plant operated by the Company in Dracut. Locus is an irregularly shaped parcel set back from Tyler Road about 580 feet and having access to Tyler Road by a 100 foot strip leading from the main portion of Locus to Tyler Road. The Company proposed to leave Locus by way of Tyler Road and exiting onto Route 31, and the 1983 Permit required that route.

21. The number of houses on Tyler Road between Locus and Route 31 increased from eleven to fifteen between 1983 and 1987.

22. The Company spent between $35,000 and $40,000 in initial preparation of Locus and in attempts to comply with the conditions of the 1983 Permit.

23. Plaintiffs argue that the desired special permit was constructively granted pursuant to G.L. c. 40A, §9, 11th paragraph, because the Board failed to take final action within ninety days following the date of the public hearing. Plaintiffs point to the various problems described in paragraphs 13 to 15 above and suggest:

Through the ZBA's own mistakes and omissions, it was unable to produce five members competent to vote on Keating's application for a special permit. The failure of ZBA members to attend hearing or to be properly sworn cannot operate to the detriment of Keating. Because the ZBA failed to provide the vote of a five member board within the ninety day period specified by M.G.L. c. 40A Section 9, Keating's request for a special permit must be deemed to have been granted, pursuant to the statute.

24. Plaintiffs' argument is met by Garnache v. Acushnet, 14 Mass. App. Ct. 215 (1982), in which the Court recognized the ability of a five man board to act with four members:

Moreover, the town, by § 5.2 of its protective by-law, had established a board of appeals of five members, and a temporary vacancy did not alter the by-law. It continued to be a board of five members and a decision by the board required the concurring vote of at least four members. Accordingly, the board acted properly in reserving action until at least four members could rehear the case.

25. The hearing was held on May 13, 1987 but was continued to May 20, 1987. The Board's Decision was filed with the Town Clerk on August 14, 1987, prior to the expiration of 90 days from May 20, 1987. (August 18, 1987). Plaintiffs' contention is that a valid vote was not taken within the ninety days, a concept rejected by the Appeals Court in Mullin v. Planning Board of Brewster, 17 Mass. App. Ct. 139 (1983), at page 144.

26. Plaintiffs also contend that the failure of Board members Light and Dilda to attend working sessions of the Board (apparently each of them missed one meeting) prevented them from voting, citing Mullin, at page 143. Mullin deals with board members who miss a hearing. Light and Dilda missed only working sessions, and I find no case law that missing working sessions invalidates a vote. The rule of law suggested by plaintiffs does not square with the realities involved where volunteer members of boards of appeal try to cope with complex zoning issues.

27. So much of the Board's reasoning as relates to "detrimental effect on the natural resources (the land in question)" is unreasonable, in light of the evidence on that issue. The evidence indicates that the hydrogeologic impacts of the Company's operations will have negligible adverse impact. The Company's operations will obviously change Locus and the Board appears to be saying that of itself is a detrimental impact. However, a zoning by-law which allows (through the mechanism of a special permit) of the possibility of having sand and gravel operations must by necessity contemplate that the site of the operations will be changed.

28. Tyler Road is a residential road, with houses on large acre lots. It can properly be characterized as semi-rural. Its travelled area appears to be between sixteen and twenty feet. It has several curves and grades. The police chief and highway superintendent testified, in effect, that the road could safely handle the Company's operation, although the Chief did have concern for turning at the intersection of Route 31. Nonetheless, I find that it was not unreasonable, arbitrary or capricious for the Board to find that traffic and safety issues are a valid concern.

29. Plaintiffs' noise expert testified as to acceptable noise levels; in particular, he testified that the noise levels of the Company's trucks would be no more than a school bus. Several neighbors, on the other hand, testified as to the intrusiveness of the noise generated by the Company's activities (during the limited time in effect). The noise issue is closer than safety, but I find also that the Board's concerns are not unreasonable, arbitrary or capricious.

30. Plaintiffs cite Goodwin v. Board of Selectmen of Hopkinton, 358 Mass. 164 (1970) for the proposition that an objection to increased traffic cannot sustain a refusal to grant a permit to remove gravel. That ruling arose in the context of a permit sought under G. L. c. 40, §21 (17). It does not apply to the considerations which a board of appeal may consider as to the grant of a special permit. I note that Section 6.3.6 (b) of the Townsend By-law requires the Board to exercise its powers "with due regard to . . . detriment to the neighborhood, including impact of traffic flow."

31. Plaintiffs urge that there are special circumstances involved in this case, specifically the grant of the 1983 Permit and the history outlined at paragraph 18 above. These circumstances, argue plaintiffs, impose a special burden of fairness on defendants. The cases cited by plaintiffs do deal with special circumstances, primarily reliance by applicants on actions and representations by municipal officials. The cases could have led the Board to a different result but do not require it. Plaintiffs' predicament is unfortunate but I do not find the Town misled plaintiffs.

32. Plaintiffs' ultimate contention, on analysis, is, as expressed in Plaintiffs' Post-Trial Memorandum, that "Keating's expenditures of time and money in good faith reliance thereon (on the 1983 Permit) requires at least that the ZBA renew Keating's special permit with conditions no more restrictive than those in the 1983 Decision". Plaintiffs suggest that, had matters gone as expected, they would have had about five months' operations, instead of one week. Are plaintiffs arguing for a five month permit? I think not. Plaintiffs are, as suggested, really saying that once they undertook operations under the 1983 Permit, the burden shifts to the defendants to show why there should not be a renewal. I do not understand that to be the law. G. L. c. 40A, §9, first paragraph, allows special permits to be conditioned by limitations of time. Plaintiffs ran the risk of non-renewal.

33. Plaintiffs contend that the reasons for the Decision, set forth in paragraph 16 above, were not voted on by the Board and there is some deposition testimony which raises questions on that score. However, there was testimony by Board member West, who prepared the Decision, that he had circulated a draft decision for Board approval and that that Decision, with perhaps one or two minor changes, was the decision filed with the Town Clerk.

34. The Board could have gone either way in considering plaintiffs' renewal application and either result would have been reasonable. The Board was not unreasonable, capricious, arbitrary or unlawful in going the way it did. Accordingly, I uphold the Decision of the Board.

Judgement accordingly.