CATHRYN M. BODIO and RICHARD W. BODIO vs. WILLIAM G. BASSETT, LAWRENCE J. HURLEY, JOHN F. MARA, E. VINCENT CARLSON and BARBARA G. PARAS, as members of the ZONING BOARD OF APPEALS OF THE TOWN OF EASTON.

Plaintiffs, appealing under G. L. c. 40A, §17, seek to annul a decision dated August 8, 1990 (the "Decision") of the Zoning Board of Appeals the "Board") of the Town of Easton (the "Town"), denying Plaintiffs a special permit to construct a two-family dwelling at 24 Reynolds Street in the Town.

On July 29, 1991, the parties filed an Agreed Stipulation of Facts. A trial was held on July 29, 1991, August 28, 1991, and November 1, 1991. A stenographer was appointed and recorded the testimony. Thirteen Exhibits (some with multiple parts) were introduced into evidence; all of them are incorporated in this Decision for the purposes of any appeal.

The following witnesses testified: Plaintiff; Mary P. Connolly (Director of Public Health for the Town's Board of Health); John A. Pires (the Town's Building Inspector); Andrea Pucillo (a neighbor); Louis F. Freitas (a local real estate broker, appraiser and developer); Donald Meade (a quadriplegic, who is a proposed tenant of the downstairs apartment); and Dwayne Farrell (Safety Officer in the Town's Police Department), witnesses for Plaintiffs; and Ralph Harris (a sergeant in the Town's Police Department and next-door neighbor to Plaintiffs); and Anne Carney (the Town's Assistant Assessor), witnesses for Defendants.

I find and rule for Defendants, as follows :

1. Plaintiffs, Cathryn M. and Richard W. Bodio, husband and wife, own two adjacent parcels of land at 24 and 26 Reynolds Street in North Easton. Defendants are duly appointed members of the Board.

2. 24 Reynolds Street ("Locus") contains approximately 10,031 square feet of land and is vacant, with the exception of a two-car garage at the rear of the lot. Locus is a rectangle 167'± by 60' (its street frontage). Locus is shown on Assessor's Map U22 as Lot 54 (Exhibit 6). 26 Reynolds Street has approximately 9,969 square feet of land, and contains a two-family dwelling. This parcel is shown on Assessor's Map Ul7 as Lot 142 (Exhibit 6). According to the Assessor's Map, the other lots on Reynolds Street have acreage and frontage roughly similar to Plaintiff's lots, as do the lots on the neighboring streets.

3. Both parcels are located within a Residential Zoning District as shown on the Town's Zoning Map (Exhibit 10). The principal use allowed in a Residential Zoning District is a one family detached dwelling per lot.

4. The minimum lot size in a Residential Zoning District is 40,000 square feet, as provided in section VI of the Town's Zoning By-Law (the "By-Law") (Exhibit 9).

5. Both parcels are smaller than the current By-Law requires. They are nonconforming lots, existing prior to the adoption of the By-Law. The parties have stipulated that the lots are grandfathered under the By-Law, and Plaintiffs are entitled as of right to build a single family home on Locus, pursuant to Section 4-7 of the By-Law.

6. The neighborhood surrounding Locus is pleasant and comprised of a mix of single and two-family homes, predominantly of colonial and Victorian style. Approximately fifteen homes on Reynolds Street are assessed as single-family homes, and seven are assessed as two-family homes. The streets in the immediate neighborhood have roughly the same mix. Locus is the only buildable lot left on the street. The general area in which the neighborhood is located "is the North Easton Village District, a desireable residential area.

7. Reynolds Street is two blocks from Main Street, which runs through the center of Town. School children walk along the sidewalk of Reynolds Street (which has a sidewalk only on one side) to and from school related activities. Generally, it is a quiet, lightly traveled, tree-shaded residential street. During peak traffic hours it is occasionally used as a cut through to avoid downtown traffic. Almost all parking is done off-street.

8. Section 5-3 A-2, Table of Use Regulations of the By­Law, allows for construction of a two-family dwelling within the Residential Zoning District upon the issuance of a Special Permit by the Board.

9. Pursuant to Section 12-7 of the By-Law, a Special Permit applicant is not required to demonstrate specific hardship. In granting a Special Permit, Section 12-7 requires that the Board take into consideration the nature and condition of adjacent structures and uses, the district Locus is located in, other "appropriate safeguards", and the following general conditions:

1. The use requested is listed in Table of Use Regulations as a Special Permit in the District for which application is made.

2. The requested use is essential or desireable to the public convenience or welfare.

3. The requested use will not create undue traffic congestion, or unduly impair pedestrian safety.

4. The requested use will not overload any public water or drainage system or any other municipal system to such an extent that the required use or any developed use in the immediate area or in any other area of the Town will be unduly subjected to hazards affecting health, safety, or the general welfare.

5. Any special regulations for the use set forth in Section VII are fulfilled.

6. The requested use will not impair the integrity or character of the District or adjoining zones, nor be detrimental to the health or welfare of inhabitants of Easton.

7. Permits may impose conditions, safeguards, and limitations on time and use.

10. In the Spring of 1990, Plaintiffs applied for a building permit to construct a two-family dwelling upon Locus, containing two 600-650 square foot apartments, each having a single bedroom. The plans (Exhibit 4) show the building to be an attractive Victorian-style structure. Plaintiffs intend to devote the first floor unit to a handicapped individual (witness Meade). John Pires, the Town Building Inspector, denied the permit, citing the need for a Special Permit.

11. Plaintiffs then made application to the Board for a Special Permit. After notice and a public hearing, the Board denied the application by a 4 to 1 vote. The Board filed the Decision with the Town Clerk on August 8, 1990. The reasons stated in the Decision for denial of the Special Permit are as follows:

FINDING It would not be in the best interest of the neighborhood, nor the area as a whole, to permit the use of the Petitioner's land as proposed. To allow a two­family unit on parcel #54 would not be in keeping with the purpose of the Easton Zoning By-Law. To permit a two-family unit to be built in a single residential zone would increase vehicular traffic and allow for a higher density use of the parcel of land.

FINDING Easton Zoning By-Laws were established to control the growth and limit land use. The parcel is located in a single family zone and is at present held in common ownership with the abutting parcel #142. The existing zoning requirements for a single family residence is 40,000 square feet. To permit the construction of a two family on a parcel containing 10,031 square feet would violate the intent of the Zoning By-Law.

FINDING The Petitioner purchased the land and buildings as a common or contiguous parcel that included both parcel #54 and parcel #142. Parcel #142 has a two family unit and parcel #54 has an existing two-car garage. Access to the garage is over the paved driveway crossing the proposed new property lines to the existing garage. The prior owner's intent is clearly indicated on the site drawing submitted, that the two abutting parcels were to be used in common and was so deeded to the Petitioners as one parcel.

FINDING The locus is zoned for single residential use and lies within the Aquifer Protection District of the Town of Easton. To allow the Petitioner to construct a two family residence would tend to depreciate the values of single family homes in the neighborhood and could have negative effect on the Aquifer Protection District with the addition of a new sanitary system.

FINDING The lots in this subdivision, which was created in the late 1800's or early 1900's at a time of few horse-drawn vehicles, and the pedestrians walked to and from work. Today in 1990, pedestrian traffic has increased slightly, but motor vehicle traffic has replaced horse drawn wagons. This has created a high use of streets in the area. The roads and lot sizes were not established to cope with the current lifestyle in this and the surrounding neighborhood.

12. There is a considerable demand for apartments in the Town. Two family homes are in short supply and very marketable.

13. Locus, and its zoning and percolation characteristics, would support a single family residence having as many as four bedrooms.

14. Locus' neighborhood has existed for many years. I accept the Board's description of the neighborhood as a turn-of-the-century development, with streets planned for primarily pedestrian, and some horse-drawn, traffic. As was customary in those days, houses were crowded together by today's standards.

15. There was conflicting testimony as to whether people seeking to avoid the intersection of Center and Main Streets use Reynolds Street as part of a short cut; apparently some do.

16. No new two-family houses have been constructed on Reynolds Street for many years, at least twenty according to the Town's Assistant Assessor. In the last twenty years, only six new two families have been constructed in the whole Town (those were at a considerable distance from Locus).

17. A two-family residence would increase traffic on Reynolds Street, but only slightly. Dwayne Farrell, police officer and Town Safety Officer, testified that traffic would not increase in the neighborhood, and pedestrian safety would not be impacted.

18. Evidence produced at trial showed that home values would not be depreciated by an additional two-family. Plaintiffs' expert appraiser testified a two-family would not depreciate home values in the neighborhood. The Town's Assistant Assessor testified that the construction of a two-family would not cause her to lower the assessed value of other homes in the neighborhood.

19. John Pires, Town Building Inspector, testified there are no drainage problems associated with Locus, and that the available municipal services such as electricity, water, and gas, are adequate to service a two-family on Locus. Mary Connolly, the Town's Director of Public Health, testified that a two-family constructed on Locus would have no negative impact on the Aquifer Protection District, nor would it have any negative effect on the health or welfare of the Town inhabitants.

20. Plaintiffs do not have an absolute right to a Special Permit. The Decision should not be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969). The Board has discretionary power in deciding whether or not to grant a Special Permit. This discretion, however, is not limitless. G. L. 40A and the By-Law together provide standards to guide the Board. The Decision must clearly state the reason or reasons the applicable statutory and by-law standards have or have not been met. G. L, c. 40A, §15; Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972).

21. Of the seven listed conditions set forth at 9 above, I find, as to the proposed two-family structure, that: #'s 1, 5 and 7 are complied with; and that an adverse finding as to #3 (traffic), 4 (municipal systems) and 6 (to the extent it relates to health or welfare) would be arbitrary (or to put it positively, I find they have been complied with). As to #2 and the balance of #6, an adverse finding would not be legally untenable, unreasonable, whimsical, capricious or arbitrary.

22. The Decision is sufficiently explicit as to the reasons for the denial. While a finding as to undue increased traffic is not supportable, the Board's finding as to increased density is reasonable - I think particularly of the probability that there will be increased parking. The Board dwelt at some length on lot size. It is proper to express concern as to allowing a two-family house, an exception to the allowed zoning, on a substantially subsized lot, even though the lot is grandfathered so that a single family could be erected on it by right.

23. The basic law here is that one is not entitled to a Special Permit. If the Board had granted a Special Permit, it would have had ample justification, but its refusal to do so will stand.

Judgment accordingly.