The Board of Appeals of the Town of Middleton (the "ZBA") just doesn't get it! More accurately, perhaps, gets it all too well. The ZBA realizes that to grant relief to the plaintiff, a member of a family well known in golfing circles, will provide competition for another golf driving range in Town referred to at pages 2 and 3 [Note 1] of my previous decision on land owned and leased by a prominent Middleton family or its corporation, principals in several Land Court cases. See National Amusements Inc. v. Boston, 29 Mass. App. Ct. 305 (1990).
When I remanded this matter to the Zoning Board by judgment dated February 21, 1992 I directed the ZBA to reconsider their decisions in the light of the facts and law set forth in my decisions. They did hold an additional hearing, made findings and rulings of law clearly inconsistent with my decision and again denied relief. The Board failed to understand that no residentially zoned land was included in the application for relief and those living therein had no standing to object. See Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129 (1992). The same applies to a competitor and of course, none of the abutting businesses in the same zone as the plaintiff on the surface at least objected.
The sole question for decision in the plaintiff's appeal for the Board's decision after remand is whether the plaintiff is entitled to a variance to use locus for recreational purposes. I strongly suggested that to be the case in my February decision since the flooding to which locus is subject made it a poor candidate for industrial activities. Authority for the variance is found in Dion v. Board of Appeal of Waltham, 344 Mass. 547 , 551 (1962) which recognized a Board's authority to act even if similar physical circumstances affected other properties in the district. Sherman v. Board of Appeals of Worcester, 354 Mass. 133 (1968). The ZBA obviously was confused in giving as a reason for denying the variance its conclusion that traffic would be increased. Naturally a light industrial district will have more traffic than the bulk sale of water but the proposed recreational use is to be measured against permitted industrial uses, not the status quo. Therefore, I find and rule that the plaintiff is entitled to a variance to operate the golf driving range, and this decision and judgment will serve as evidence thereof without further finding by the ZBA.
The ZBA also disregarded my findings and the authorities cited in again denying the special permit to which I find and rule the plaintiff is entitled. However, the grant of the variance makes this aspect of the case moot.
The second time around found the Board concentrating on the net designed to prevent the golf balls from intruding where they might not be welcome. I find and rule that it is a necessary appurtenance to the recreational use for which the variance has been granted.
At the time of the original denial of the plaintiffs' applications for a special permit and a variance the ZBA did grant the special permit in the Conservancy District where indeed it is a permitted use. (Exhibit No. 11) See 4.8.2. A B of the Zoning ByLaw (Exhibit lA). The same reasons which led the draftsman to limit activities in the Conservancy District apply with equal weight to the remainder of the property in the M-1 Light Industrial District.
The site plan review presents an additional problem. The ZBA did not rule on the plan since it felt the denial of the variance and special permit (although granted as to the conservancy district Exhibit 11) rendered it powerless. Accordingly I once again remand that decision to the ZBA and remind it that it cannot deny approval but merely proffer reasonable suggestions or conditions as to possible improvements Prudential Inc. Co. of America v. Board of Appeal of Westwood, 18 Mass. App. Ct. 632 (1986).
[Note 1] Calendar Magazine published by the Boston Globe on August 13, 1992 refers to the existing golf driving range and miniature golf range next to the ice cream stand on Route 114.