THE WINCHESTER BOAT CLUB, INC. v. TOWN OF WINCHESTER, VIRGINIA A. HOEFLING, AMY G. WANGER, and ANN M. MATARESE, as they constitute the ZONING BOARD OF APPEALS OF THE TOWN OF WINCHESTER, and ANDREW D. GUTHRIE, JR., CATHERINE M. GUTHRIE, JOHN DOE and JANE DOE.

There presently are two pending actions which concern the use for recreational purposes of vacant land adjoining the Winchester Boat Club, on Cambridge Street in Winchester in the County of Middlesex, one in the Superior Court Department and the other in the Land Court Department. By order of the Chief Administrative Justice I was designated as a Superior court Justice to hear the Superior Court action together with the Land Court action.

The Land Court litigation is an Appeal by The Winchester Boat Club, Inc. (the "Boat Club") of a denial by the defendant Board of Appeals ("ZBA") of a special permit to use land adjoining the Boat Club's site for recreational purposes or a judgment that it was constructively granted and it is also an action for a declaratory judgment pursuant to G.L. c. 231A, § 1 and 2 as to the rights duties and status of the parties under Sections 4.14-14 of the Winchester Zoning By-Law. The plaintiffs in the Superior Court action were allowed to intervene. The Superior Court litigation was brought by abutters who recognized the possibility that the special permit for a predominantly outdoor recreational use had been constructively granted and sought to have it annulled. The term "the plaintiffs" as used herein refers to the Superior Court litigation.

On a motion in the Superior Court Case by the Boat Club for Summary Judgment I found and ruled that the special permit had been constructively granted, but that the abutters Andrew D. Guthrie, Jr. and Catherine M. Gutherie, the Superior Court plaintiffs, had their right of appeal pursuant to G.L. c. 40A, §17 and a trial de novo. The proponents of the grant of the special permit must now prove by a preponderance of the evidence that the grant was in accordance with law and not arbitrary, unreasonable, capricious or whimsical.

A trial was held at the Land Court on June 10, 1992 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The Boat Club called as witnesses Frederick Russell, a professional civil engineer with BSC, Domenic J. Serratore, the Building Commissioner and Zoning Enforcement Officer of the Town of Winchester, Ralph Swanson, a member of the Boat Club and a former Commodore, James E. Barger, the Chief Scientist of Bolt, Beranek and Newman, specialist in acoustics and Verna J. Swanson the Boat Club Commodore. In turn, the plaintiffs called Andrew Guthrie and Catherine M. Guthrie, the plaintiffs and abutters to the locus, Ann M. Matarese, a member of the ZBA at the time of the hearing and decision. Angus Beaton and June Beaton abutters to the present location and the locus, both John Carroll M.D. and Donna Carroll neighborhood residents and abutters to the locus, Edward D'Agostino and Donna Marie D'Agostino, residents of Everett Avenue, on which the locus purchased by the Boat Club abuts, and Mary Callahan, a resident of Everett Avenue.

A view was taken by the Court in the presence of counsel on June, 1992.

On all the evidence I find and rule as follows:

1. The Boat Club is located at 65-69 Cambridge Street (Mass. State Route No. 3) in Winchester. It was incorporated as a nonprofit corporation in 1901 and has been continuously carrying on its program of swimming, boating and sailing opportunities in the same location on Mystic Lake. Its basic goal is "to measure the family unity" a concept much in vogue in 1992. Its existence predated the presence of the plaintiffs and their witnesses by many years.

2. The Boat Club first entered into a purchase and sale agreement with Mr. and Mrs. John A. Caruso, the then owners of the locus which during the pendency of the two actions was purchased by the Boat Club. [Note 1] The parcel fronts on Everett Street and includes a rectangular parcel extending to Cambridge Street over which the land owned by the Guthries has a right of way. The present Boat Club premises adjoin the locus which lies to the east.

3. Both the locus and the present Boat Club are situated in an R D B district, which is a residential zone. The Winchester Zoning by-law authorizes in such a District, in Section 4.4 (14) a "Country Club, sporting grounds or other predominantly outdoor recreational use excluding any use conducted as a gainful business" with the grant of a special permit by the ZBA.

4. Section 8.5 of the by-law sets forth the criteria for the grant of a special permit, and they are set forth in the footnote to this paragraph. [Note 2]

5. The Boat Club's membership is limited to 325 families. Currently there are between 300 and 310 outstanding memberships with a waiting list. This translates to about 1030 members of all types of which 10% are not Winchester residents. Activities at the Club generally commence on April 19 and end on October 12 and include sailing on Mystic Lake with sailing lessons, races, regattas for sailing enthusiasts from other areas, a swimming pool (and one for small fry) with a lesson component, and social activities in the clubhouse including movies.

6. To address the complaints of neighbors the loudspeaker system has been discontinued, the rubbish pick up has been scheduled at a later hour and the height of the fence increased to bar after-hours intruders. These concessions relate to the existing club premises, not the new land acquired from the Carusos where much less intense activities are planned.

7. The newly acquired land is intended to increase the green component of the Boat Club's holdings, to add to the open space in the neighborhood, to provide a vantage point to watch the boats well out into Mystic Lake (they not being visible for the present Club premises) and simply to enjoy the scenery, to provide room for recreational activities of youngsters, and to free parking space on the present club grounds by moving boats to the locus.

8. The plaintiffs formerly belonged to the Boat Club and ceased participation only when their son was grown. Other witnesses continued their membership during the youth of several children. Two other abutters have a Cape Cod residence as well so their summer presence is not constant. It is a regrettable fact of life that tolerance for the young and their exuberance often decreases with increasing age. That appears to be a factor here.

9. The Metropolitan District Commission has a nearby beach and sailing facility. Also on the Mystic Lakes are other boat clubs with college connections.

10. The plaintiffs fear an increase in traffic, congestion, noise and the like from the addition of the adjoining land. However, the acquisition would appear to be traffic neutral since no additional club members are contemplated, and the locus in any event has no direct access to a public way. Dispersing the club participants would lend to decrease, not increase the noise factor, and other complaints of the plaintiffs are directed to the Boat Club itself, not the locus. In any event the Boat Club has responsibly attempted to rectify any complaints. It intends to work with the Conservation Commission which with other town authorities supports the addition of recreational area to provide a suitable crossing of the brook. The Boat Club has had a long history of environmental responsiveness.

11. Noise tolerance varies with the individual. The Boat Club's expert testified that with the loudspeaker eliminated, as has been done, the noise from the Club itself is significantly reduced. If the six foot high fence which the Boat Club plans to erect around the perimeter is in fact added, the witness testified that the noise level at the points on the abutters' properties to which he testified would increase by only three decibels which is imperceivable. He also pointed out the cocktail party effect, i.e. the more concentrated the people, the louder the noise with anticipated dispersion of members helping to reduce the noise level. I adopt these opinions.

12. Some of the boats presently stored on the existing Boat Club property now will be stored on the newly acquired premises which will make available approximately five additional spaces on the present site. The Boat Club's property abuts Route 3, a State Highway. Offsite parking of members and their guest generally is on the town way, Everett Avenue. If parking presents problems for the abutters as may be the case not only in Winchester but in any neighborhood where there is an attractive or useful facility, the town authorities have the power to regulate it.

13. The decision [Note 3] of the ZBA addresses the provisions of section 8.5 of the Winchester zoning by-law which generally requires that the Board grant special permits only "where such conditions and safeguards as required by the by-law have been met and only after a determination that such grant would comply with all other provisions of the by-law and would not adversely affect the public health, safety, welfare, comfort or convenience of the community." More specifically the by-law requires the Board to address the considerations set forth in footnote 2.

The evidence introduced at the trial and incorporated in my findings supports the majority of the Board in its rulings in the conditions precedent to a special permit grant.

The initial question raised by the two actions is the applicability of G.L. c. 40A, §16 which limits the reconsideration of an application "which has been unfavorably and finally (underlining added) acted upon by the special permit granting authority ...." within two years without compliance with certain conditions. The statute further provides for withdrawal of an application without prejudice prior to publication and thereafter with the approval of the special permit granting authority. The ZBA has a practice of denying applications without prejudice for a variety of reasons including the furnishing of additional materials, consultation with the abutters and the like. Examples of this are found in other recent decisions (see Exhibits nos. 10A, 10B and 10C) as well as in other matters appealed to this Court. In the present case the original decision made it clear that the Board's action was not final nor was it unfavorable, two prerequisites to the moratorium. The November 19, 1990 decision of the ZBA (Exhibit No. 11) recited that the Board did not have sufficient evidence to make the Section 8.5 findings and concluded:

Accordingly, by a vote of 3 to 0 this Board denies relief but does so without prejudice so the petitioner can return to the Board within the statutory period and present a record that addresses the consensus of the by-law, the Board, the neighbors and others who spoke to the petition.

This language clearly takes the second petition out of the section 16 moratorium and authorized the submission of the evidence sought by the Board. This question was not raised in the Superior Court complaint nor in the Land Court intervenors' complaint, but I have dealt with it at length as the parties have argued it.

The standard by which a zoning board of appeals must meet in acting on an application for a special permit was set forth by Supreme Judicial Court in MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 (1970) (MacGibbon II) and MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 (1976) (MacGibbon III). [Note 4] The Board has discretionary power to act on the permit and the decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. On appeal the trial judge must hear the matter de novo and determine the legal validity of the Board's decision upon the facts found by the judge. "The granting of a permit must be upheld if it is for a use that is in 'harmony with the general purpose and intent of the ordinance or by-law'. . . and the decision does not rest on 'a legally untenable ground' (citations omitted) and is not unreasonable, whimsical or arbitrary." Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). It is the Board's judgment, not the Court's which prevails. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 (1979).

I find and rule based on the facts which I have found that the decision of the ZBA was neither legally untenable nor unreasonable, whimsical, capricious or arbitrary and the special permit must be upheld. Accordingly, a judgment will issue dismissing the Superior Court complaint with prejudice and a judgment will issue in the Land Court case as to the constructive grant and the compliance of the special permit with the by-law provisions applicable thereto.

Judgment accordingly.