NORMAN BOGOSIAN, NORMAN DAVIDSON, MARK GOLDENBERG, CAESAR HOFFMAN, CYNTHIA KERBEL, HYMAN LONDON, NANCY POPKIN and HERBERT ZIMMERMAN vs. VINNIN ASSOCIATES REALTY TRUST and RICHARD A. BENCAL, PETER DORE, RICHARD FEBONIO, JAMES M. FLEMING, ARTHUR LEBRECQUE and EDWARD LUZINSKI as they are members of the CITY OF SALEM BOARD OF APPEALS.

By complaint filed April 11, 1990 and amended on June 28, 1990, pursuant to G.L. c. 40A, §17, Plaintiffs seek the annulment of a decision ("the Decision") of the Zoning Board of Appeals of the City of Salem ("the Board") which granted a special permit to Defendant, Vinnin Associates Realty Trust ("Vinnin Associates") for the construction of a 123 bed nursing home ("the Nursing Home") at 7 Loring Hills Avenue (Sometimes referred to as 7 Carol Way) in Salem ("Locus").

This case was tried on March 7 and 8, 1991, at which times the proceedings were transcribed by a court-appointed reporter. Twelve witness testified and twenty-two exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. By deed dated October 20, 1983, Vinnin Associates took title to Locus (Exhibit No. 15). James Zieff, sometimes also known as L. James Zieff as Trustee of Vinnin Associates, is the present title holder to Locus. Locus is a parcel of land in Salem of approximately 2.0 acres and is shown as proposed Lot Dl on a subdivision plan entitled "The Village at Vinnin Square, Carol Way" and dated November 8, 1985 ("the Plan") (Exhibit No. 22) (Locus is more clearly shown on Exhibit No. 2). Presently Lot Dl is part of Lot D as shown on the Plan.

Locus may be accessed via Loring Hills Avenue and Carol Way, both of which are private ways (See Exhibit Nos 8 and 22). A utility easement was paved as a connecting private driveway link between Carol Way and Loring Hills Avenue ("the Link") and would allow immediate access to the front of the Nursing Home (See Exhibit No. 2). Vinnin Associates, both as abutting landowner and pursuant to reservations in the master deeds for the Village at Vinnin Square Condominium ("Village I") and for the Village at Vinnin Square Condominium II ("Village II"), has the right to use Carol Way, Loring Hills Avenue and the Link (See Exhibit No. 17, Section 7E and Exhibit No. 19, Section 7E).

2. Locus in an R-3 zone under the Salem Zoning Ordinance ("the Ordinance") (Exhibit No. 5). Section V (B) (4) (a) of the Ordinance requires a special permit for the construction of the Nursing Home in such district. Locus complies with all density regulations and parking requirements of the Ordinance.

3. On March 1, 1990, Vinnin Associates filed an application for a special permit to allow construction of the Nursing Home at Locus (Exhibit No. 7).

4. Section IX (D) of the Ordinance provides that the Board shall deny special permits when not in harmony with the purpose and intent of the Ordinance. Section I (1) of the Ordinance provides:

For the purpose of promoting the health, safety, convenience, morals, or welfare of the inhabitants of Salem, the Zoning Regulations and restrictions of this ordinance, . . . are designed among other purposes to lessen congestion in the streets; to conserve health; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent over-crowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the City; and to preserve and increase its amenities, to preserve and protect the water supply, open space and conservation of natural resources, to prevent the pollution of the environment, and community blight, to ensure housing for all income levels and compliance with the Master Plan of the City of Salem.

5. On April 5, 1990, the Board issued a decision granting a special permit subject to a list of conditions (Exhibit No. 6). The Board found as follows:

1. The proposed use will promote the public good by meeting the need for nursing.

2. The proposed nursing home is in harmony with the intent of the Zoning Ordinance.

3. The proposed nursing home will promote the public health, safety, convenience and welfare of the City's inhabitants.

6. The Massachusetts Department of Public Health has established four levels of nursing home care, dependant on personnel requirements, staffing patterns and Medicare participation. Level 1 and 2 care have the patients requiring the most care. In Salem there is a 47 bed level 3 nursing home and two level 4 nursing homes with 100 beds combined. There are no level 1 or 2 nursing homes in Salem. The Nursing Home is to be a multi­level nursing home with 82 level 1 and level 2 beds and 41 level 3 beds. Many of the nursing homes in the area of Locus are filled to ninety-seven or ninety eight percent capacity. A Determination of Need was approved by the Public Health Council in September of 1988 for the Nursing Home. Presently hospital patients are frequently placed on Cape Ann or in Amesbury due to the lack of appropriate facilities. It may take 30 to 40 phone calls to place a patient and then, if successful, the wait for a vacancy may be from three to nine months.

7. Locus, while in a residential district, borders on a commercial district. Directly in front of the Nursing Home site is a strip type shopping center, including a Papa Gino's restaurant, a bank, an office building, a clothing store, and a kindergarten. Also, in the area is a funeral home, restaurants and the Vinnin Square shopping center. While Vinnin Square is clearly in the business district, it is difficult to determine from the testimony and other evidence whether the other busiesses are located in the residential or business district. There are also a five condominiums in the area including, Village I with 65 residential units, Village II with 100 residential units, Weatherly Drive Condominium with 86 residential units, Loring Hills Condominium with 38 residential units, and Loring Towers which has 250 residential units.

8. The present infrastructure, as to utilities and access roads, is more than adequate to support the needs of the Nursing Home.

9. The only traffic study of the area demonstrated that the construction of the Nursing Home would have no significant impact on traffic operations and that all intersections would continue to operate safely and below capacity during peak traffic house (Exhibit No. 14).

10. At the request of the Planning Board, Vinnin Associates create a plan which moved parking to the front of the building on the plan. There were also additional landscaping and screening changes due to the site plan process. In the interest of judicial and other economies, this order and judgment will apply to the plan before the Board as well as to Exhibit No. 12, which is the Plan later submitted to the Planning Board and which is also in conformity with dimensional and parking requirements of the 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, capricious or arbitrary. 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). 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).

In the present case, I find that Vinnin has shown the need for a multi-level nursing home in Salem and has effectively demonstrated that the Nursing Home would be in harmony with the purpose and intent of the Ordinance. I find that the Board's Decision in issuing the permit was within the authority of the Board and accordingly, this matter is dismissed.

Judgment accordingly.