GERARD MEEHAN, trustee of the G&T Realty Trust v. RICHARD DALEY, JR., MARY JEKA, HERBERT FOSTER JR. and MARLENE SMITHERS as members of the CITY OF SOMERVILLE BOARD OF APPEALS.

Introduction

This case concerns the property at 9-11 Aldersey Street on Prospect Hill in Somerville, owned by plaintiff Gerard Meehan as trustee of the G&T Realty Trust. After full review and hearing, the City’s Planning Board recommended the granting of a special permit allowing the residential development described below. Despite this, in a ruling Mr. Meehan contends was arbitrary, capricious, and misapplied the relevant ordinance provisions, the defendant Zoning Board of Appeals rejected that recommendation and denied the permit. Mr. Meehan then filed this G.L c. 40A, §17 appeal.

The issues, in brief, are these.

The neighborhood in which the permit is sought is dominated by large multi-family residences on small, closely-packed lots. The Meehan property is an exception. Its lot is by far the largest in the area — at 25,000 square feet, nearly twice the size of anything nearby — and occupied solely by an 1850’s farmhouse located at its center, long since converted to a three-family dwelling and currently rented to tenants. The rest of the lot is vacant and unlandscaped, used only as space to park cars. See Exs. 1 (assessor’s map, annotated) [Note 1] & 2 (aerial photograph).

Mr. Meehan seeks to develop his property by restoring the historical features of the farmhouse, reducing its three units to two, and adding a building to its left (Building A) and another to its right (Building C) (the farmhouse is Building B). See Exs. 3 (building footprints) & 4 (site plan). The new buildings would be located towards the sides of the lot to isolate and showcase the historic farmhouse at the center. Id. Each of the three buildings would be fully compliant with every dimensional requirement in the zoning ordinance — height, front setbacks, side setbacks, rear setbacks, floor area ratio (the ratio of the net floor area of the building to the total area of the lot), and the rest. [Note 2] Parking would be compliant. [Note 3] The total number of dwelling units on the lot, spread between the three buildings, would now be eleven — three in Building A on the left, two in the farmhouse, and six in Building C on the right. Eleven units is fully compliant with the requirements for issuance of the special permit sought. [Note 4]

Of particular relevance to the issues in this case, each of the new buildings would be shorter than its neighbors, architecturally matched to the farmhouse and the other residences in the neighborhood, pulled back from the farmhouse to preserve its view from the street, and turned sideways to the street to minimize visual impact and maintain streetscape scale. In relative size, scale, mass, appearance, and density, the buildings would be fully compatible with the surrounding neighborhood — the new 3-unit building on the left (Building A) with the abutting three-building, nine unit development on that side (17 & 17R Aldersey Street); [Note 5] the six-unit building on the right (Building C) with the abutting properties on that side (1 Aldersey, 42 Walnut Street and 44 Walnut Street, which together occupy a similarly-sized land area and together have six units in three buildings, plus a large garage); [Note 6] and the three Meehan buildings with the buildings they abut to the rear (#10, #14, #16 and #18 Summit Avenue — fifteen units in four buildings with three large garages). [Note 7] See Exs. 1-7, especially 5, 6 & 7 (photographs of massing model of proposed development and surrounding properties). [Note 8] Taken together, the three Meehan-site buildings would also be similar in streetscape mass and scale with the buildings on both their side of Aldersey (#1 through #24 Aldersey) and across the street (#4 through #21 Aldersey). See id. and Ex. 8 (current assessor’s map of surrounding neighborhood).

The Meehan development could have been built as of right at any time prior to 1988, and could be built as of right today except for this: in a 1988 ordinance, retained in the comprehensive revision of the Somerville Zoning Ordinance passed in 1990, the City “up-zoned” its Residence A (“RA”) Districts, establishing a minimum lot size of 10,000 square feet, a maximum of one principal structure per lot, and limiting “as of right” projects to no more than two units apiece. None of the twenty-two properties in the vicinity of the Meehan lot is compliant with those requirements, and this was alleged also to be the case for much of the rest of Somerville as well. [Note 9] Mr. Meehan challenged the validity of the up-zoning in Meehan v. City of Somerville, Land Court Case No. 03 MISC. 286419 (KCL). What preserved the up-zoning from that challenge was its safety valve: the provisions in the ordinance permitting and guiding the Zoning Board in allowing more dense developments by special permit with site plan review. See Order Allowing Defendants’ Motion for Summary Judgment in Misc. Case No. 286419, Denying Plaintiff’s Motion for Reconsideration, and Denying Defendants’ Motion for Summary Judgment in Case No. 297149 at 8 (Dec. 13, 2004).

Mr. Meehan applied for such a permit. As noted above, each of his buildings would be fully compliant with every dimensional requirement in the zoning ordinance. The development meets all parking requirements. It can easily be serviced by the City’s electricity, water and sewerage systems. It would not create any traffic, drainage or safety issues. There was no evidence it would adversely affect the fair market values of any of the neighboring properties, and might well enhance them. [Note 10] It would add an affordable unit to the City’s housing stock and a financial contribution to others. [Note 11] Moreover, the number of units proposed — eleven — is fully compliant with the area requirement (lot area per unit) set forth in the ordinance for the granting of special permits, and the overall floor area ratio (the ratio of the net floor area of the buildings to the total area of the lot) is fully compliant with current zoning. The requirement of Historical Commission approval [Note 12] ensures architectural authenticity and integrity. Every objective criterion set forth in the ordinance has thus been satisfied.

As noted above, after a full review and hearing, including a complete analysis of all applicable provisions in the zoning ordinance, the Planning Board unanimously recommended that the special permit be granted. [Note 13] The Zoning Board, however, (the special permit granting authority under the Zoning Ordinance), rejected this recommendation and denied the application based on its conclusions — the factual basis and reasoning for which were not explained — that the development was “too large with respect to the scale, massing, and design of the two buildings proposed,” “not compatible with the surrounding neighborhood in an RA zone,” had “too many” units for the site, and “would be substantially more detrimental for the neighborhood.” [Note 14] At trial, the Board stated that each of these conclusions was “visual”-related — its assessment of the size of the buildings in comparison with the others in the neighborhood. [Note 15] This can be a permissible ground for denial, but only if allowed by the ordinance, within the parameters the ordinance sets, and with a rational basis in the facts. See Britton v. Zoning Board of Gloucester, 59 Mass. App. Ct. 68 , 73-74 (2003); Wendy’s Old Fashioned Hamburgers of New York Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 383 (2009) (internal citations and quotations omitted). For the Board to be upheld, those facts must be “substantial facts which rightly can move an impartial mind, acting judicially, to the definite conclusion reached.” Wendy’s Old Fashioned Hamburgers, 454 Mass. at 386. (emphasis added; internal citations and quotations omitted). See also Vazza Properties Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973) (discretion may not be exercised arbitrarily; the problems allegedly perceived must be “substantial problems and not mere pretexts”; board must act “fairly and reasonably on the evidence presented to it” and the reasons given for its decision must have “a substantial basis in fact”).

The case was tried before me, jury-waived, on a case-stated basis with the court permitted to weigh the evidence and draw inferences. That evidence consisted of stipulations, photographs, the agreed-upon or otherwise admitted portions of affidavits and exhibits, and an extensive site view which was particularly informative both for context and the overall evaluation of the evidence. [Note 16] Based on the evidence submitted, my assessment of the weight, credibility and reliability of that evidence, the reasonable inferences I draw from that evidence, my observations at the view, and in accordance with the legal standard set forth above, I find and rule as follows.

Facts

These are the facts as I find them after trial.

The property at issue is 9-11 Aldersey Street in Somerville. Its lot is rectangular in shape, 25,000 square feet in area, has two hundred feet of frontage, and is by far the largest parcel of land in the neighborhood — almost twice the size of anything near it. As noted above, it is currently occupied by a 2 ½ story 1850’s farmhouse located at its center, converted long ago to a three-family dwelling and presently rented to tenants, with the remainder of the lot vacant and unlandscaped, used by the tenants and their visitors to park their cars. The existing building and property have been designated historic and are on Somerville’s Local Historic District list, as are several other lots and buildings along Aldersey Street and, behind the Meehan property, on Summit Avenue.

The properties nearby are as follows. See Exs. 1-3, 5-8. [Note 17]

On the lot to the right of the Meehan property (1 Aldersey Street) are a 3-car garage located directly on the boundary line and a massive [Note 18] multi-story 3-family structure, originally Victorian but with a later large addition that expanded the building both upwards and sideways. Also on that side, at 42, 44 and 48 Walnut Street, are other large residential structures and their accessory buildings.

On the lot to the Meehan property’s left (17 & 17R Aldersey Street) are a 3-car garage on the boundary line, a large asphalt parking area in front of that garage along the boundary, a large 8-family structure, [Note 19] and another one-family building (9 units in all). Next to that lot, at the corner of Aldersey Street and Vinal Avenue (24 Aldersey Street), is a 6-family residence with a large asphalt parking area to its side.

Across the street from the Meehan property are an 18-unit, flat-roofed brick apartment building with a large asphalt parking area (4 Aldersey Street), and then a series of closely-packed houses on small lots (6 Aldersey Street, 8 Aldersey Street, 12 Aldersey Street, [Note 20] 14 Aldersey Street, 16 Aldersey Street , 18 Aldersey Street and 21 Aldersey Street) (see Exs. 1, 2 & 3). All but three of them (#18, #14 & #16) are multi-families, and 14 & 16 Aldersey are attached single family residences and thus, from the street, have the appearance of a side-by-side multi-family house.

Behind the Meehan house is the fast-rising slope of Prospect Hill with a high wall at the rear edge of the lot. [Note 21] The structures along and behind that wall (10 Summit Avenue, 14 Summit Avenue, 16 Summit Avenue and 18 Summit Avenue) are again, with a single exception (16 Summit Avenue), multi-family dwellings, many with large additions since the last editions of the tax assessor’s map (see Exs. 1 and 3), and all at elevations higher than the Meehan lot. The rear buildings on the #10, #14 and #16 Summit Avenue lots are either on or nearly on the Meehan boundary line. Id.

Aldersey Street is a 40’-wide two-way, two-lane public street with pedestrian sidewalks and on-street parking on both sides. It is a side street and not a major thoroughfare or cut-through. Only minimal traffic was observed during the view, and there was no credible evidence that any traffic issues either presently exist or would be created by the proposed development. The professional studies conducted on behalf of Mr. Meehan and admitted into evidence show that there would be no traffic, access, drainage or safety impacts resulting from that development. On-street parking is readily available and would continue to be readily available.

The Meehan property is in a Residence A (RA) district which presently requires a minimum lot size of 10,000 square feet (SZO §8.5.A) and limits new “as of right” construction to no more than one principal structure (SZO §7.2) with a maximum of two dwelling units (SZO §7.3). This is relatively recent. Although the neighborhood has been RA zoned since at least 1925, RA zones did not have a minimum lot size or “two unit” restriction until 1988/1990 after most, if not all, of the structures in the neighborhood were built. In recognition of this, the ordinance allows the construction of developments with more than one principal structure and more than two units, otherwise dimensionally and parking compliant, if they are granted a special permit with site plan review. SZO §§7.2, 7.3. [Note 22] This is the permit at issue in this case, and the only zoning requirement the project lacks. [Note 23]

In an RA district, there are three pre-requisites for such a permit: (1) at least 2250 square feet of lot area per dwelling unit, SZO §§ 7.3 and 8.5.B, [Note 24] (2) compliance with all other applicable dimensional and parking requirements, SZO §§7.3, 8 & 9, and (3) a minimum of ten percent affordable housing units on-site, and in no case less than one affordable unit, SZO §§7.3, 2.2.4. There is no dispute that the Meehan development satisfies each of these pre-requisites. [Note 25]

The ordinance then goes on to list a series of other factors for evaluation of residential special permits. These are set forth in SZO §5.2.4.B (Design Guidelines) and §5.2.5(a) – (u) (Findings and Determinations for Special Permits With Site Plan Review). The only ones at issue are the following: [Note 26]

Design Guidelines in dispute (compliance with all others is undisputed): [Note 27]

* Buildings should be generally of the same size and proportions as those existing in the neighborhood. … SZO §5.2.4.B.1.

* Where practical, new or infill building construction should share the same orientation to the street as is common in the neighborhood. When not contrary to any other zoning law, front and side yards should be of similar dimensions as those typical in the area. SZO §5.2.4.B.5.

Required Findings and Determinations for Special Permit With Site Plan Approval in dispute (compliance with all others is undisputed):Id.

* Site and area compatibility. [The proposed development] is designed in a manner that is compatible with the existing natural features of the site and is compatible with the characteristics of the surrounding area, and that the scale, massing and detailing of buildings are compatible with those prevalent in the surrounding area. SZO §5.2.5 (d).

* Relation of buildings to environment. [The] buildings [in the development] are 1) located harmoniously with the land form, vegetation and other natural features of the site; 2) compatible in scale, design and use with those buildings and designs which are visually related to the development site; 3) effectively located for solar and wind orientation for energy conservation; and 4) advantageously located for views from the building while minimizing the intrusion on views from other buildings. SZO §5.2.5(j).

* Historic or architectural significance. With respect to Somerville’s heritage, any action detrimental to historic structures and their architectural elements shall be discouraged insofar as practicable, whether those structures exist on the development parcel or on adjacent properties. If there is any removal, substantial alteration or other action detrimental to buildings of historic or architectural significance, these should be minimized and new uses or the erection of new buildings should be compatible with the buildings or places of historic or architectural significance on the development parcel or on adjacent properties. SZO §5.2.5 (l).

Special permit consideration is not an “up or down” proposition. Section 5.2.6 of the ordinance specifically grants the Board the power to condition an approval on “such other conditions and limitations as it deems necessary to insure that the findings and determinations that it must make under Section 5.2.5 are complied with,” including, but not limited to:

* Front, side or rear yards up to fifty percent (50%) greater than the minimum required by the Ordinance. [SZO §5.1.6.a].

* Orientation of ground floor uses so as to achieve desired relationship of uses to street and neighbors. [SZO §5.1.6.b]

* Screening of parking areas or other parts of the premises from the street by specified walls, fences, planting or other means. [SZO §5.1.6.c].

* Modification of the design of the structure in terms of size, but not reducing the allowable floor area ratio by more than twenty percent (20%)…. [SZO §5.1.6.d].

The process for obtaining a special permit with site plan review involves: (1) initial review by the Inspectional Services Department to determine what relief is necessary, (2) review by the Somerville Planning Board staff, (3) a hearing before the Planning Board, which receives submissions from all relevant City departments and commissions as well as interested neighbors, (4) a vote and formal written recommendation by the Planning Board to the Board of Appeals, evaluating all aspects of the project, and finally (5) a hearing and vote by the Board of Appeals on the permit itself. A special permit may be granted unconditionally when all criteria have been met, or conditionally when any negative impacts would be adequately mitigated by the imposition of those conditions. SZO §5.2.1; §5.2.6; §5.3.6.

Mr. Meehan purchased the 9-11 Aldersey Street property on July 16, 1999. On May 15, 2003, after extensive work with his architects, site engineers and traffic consultants, he applied for a special permit with site plan review, seeking to retain the existing farmhouse and construct two new buildings, one on either side of it. He initially proposed a 30-unit project but, after protracted interaction with the Planning Board, the Historic Commission and the neighbors, modified and downsized his proposal to address their concerns, ultimately requesting the retention of the existing structure (modifying its interior to reduce it from 3 units to 2) (Building B), restoring its historic features, adding a 6-unit building to its right (Building C), and a 3-unit townhouse structure to its left (Building A) — 11 units in all. To minimize their mass on the streetscape and assure their visual compatibility with the structures around them, the proposed new buildings were turned sideways to the street, their fronts made architecturally consistent with the windows, dormers, porches and other features of their neighbors, and their height made shorter than the buildings on either side. See Exs. 3-7.

The development was reviewed by the Inspectional Services Department (“ISD”) and, in addition to needing the §7.2 and §7.3 special permit identified above, was initially deemed in violation of SZO §4.4.1 (alteration, reconstruction, extension or structural change to a non-conforming structure), §4.5.3 (expansion of a non-conforming use), and §7.11.1.d (townhouse units in RA zones). However, after further review, the ISD determined that there were no such violations, and the Planning Board concurred. §4.4.1 is inapplicable because the existing structure (the farmhouse) meets all dimensional requirements in the zoning ordinance and is thus not a nonconforming structure. §4.5.3 is inapplicable because the existing structure’s current use as a three-family is grandfathered, and there would be no expansion, alteration, enlargement or extension of the structure or use; all that would occur is the restoration or replacement of period details on the building’s exterior, and a reconfiguration of the existing interior space to create a two-family. §7.11.1.d is inapplicable because the ordinance permits up to three townhouse units in RA Districts (the number sought by Mr. Meehan) if a §7.3 special permit is obtained; the relevant issue is thus the §7.3 special permit. A fourth issue raised subsequently by the ISD — did the project lack one parking space under SZO §9.5.1.a? — was addressed by a revised plan that added that space. [Note 28]

The various City Departments brought their comments to the attention of the Planning Board. None had any material problem with the application. The issues they raised were either ones to be addressed at the time of the building permit application (lighting plan, the details of utility hook-ups, the screening and baffling of air conditioning condensers, etc.), or the subject of Historical Preservation Commission review and ruling. Various neighbors and Aldermen came to the Planning Board hearings and expressed opposition, but the objections they raised proved either groundless (alleged traffic, parking, emergency access, and road safety impacts, when the evidence was (and is) that there would be no such impacts); unfounded (fear of an adverse effect on the value of neighboring homes or the neighbors’ “quality of life,” when there was (and is) neither evidence nor credible basis to believe there would be such an effect); or issues for the Historic Preservation Commission (specific building features). Their remaining argument, and the one they chiefly pressed, was a preference for a smaller project, expressed as a concern that the new buildings would be out of scale, and thus incompatible, with their surroundings.

The Planning Board addressed all this in its findings and recommendations, evaluating each applicable ordinance provision and stating its findings provision by provision. On the matters at issue in this appeal — the relative mass, scale and number of units in the Meehan development and its overall compatibility with the neighborhood — the Planning Board found the following. With respect to the project’s consistency with the purpose of the zoning district (SZO §5.2.5.c), it found that the development met the criteria for a §7.2 and §7.3 special permit with site plan review, specifically allowed in RA Districts, and thus complied. With respect to the project’s site and area compatibility (SZO §5.2.5.d), it found that Mr. Meehan “has attempted to design the proposed structures so that they are compatible with the site and neighborhood in terms of scale, massing and detailing” and was working with the Historic Preservation Commission on final design, materials and colors. With respect to the project’s consistency with the zoning ordinance overall (SZO §5.2.5.h), it found that the development would “conserve the value of land and buildings, help preserve the historical and architectural resources of the City and also encourage housing for purposes of all income levels.” With respect to the project’s preservation of landform and open space (SZO §5.2.5.i), it found that “under the Applicant’s proposal the site would be brought into compliance with the requirement of 25% landscaped area” and that “the landscape plan proposed will enhance the attractiveness of the site for the occupants of the development, as well as for occupants of abutting properties.” With respect to the relationship of the project’s buildings to the environment (SZO §5.2.5.j), it found that “the Applicant has attempted to redesign the project [a reference to its downsizing from the originally-proposed 30 units] so that it is compatible in scale, design and use with those buildings and designs which are visually related to the development site”, and noted that Mr. Meehan also continued to work with the Historic Preservation Commission to address its issues. With respect to the project’s historic or architectural significance (SZO §5.2.5.l), it found that “the Applicant has redesigned the project to preserve the existing historic building and improve the visibility of the building within the development”, and noted that further permitting was required from the Historic Preservation Commission. With respect to enhancement of appearance (SZO §5.2.5.m), it found that “the site is presently void of any formal landscaping and is in a rather unkempt condition. The landscaping proposed should help enhance the appearance of the three proposed buildings, while still preserving the views of the existing historical structure.” It noted that additional landscaping could be incorporated into the sides and rear of the site. With respect to prevention of adverse impacts (SZO §5.2.5.r), it found that “since this is a proposed residential development that adheres to all setback requirements of the ordinance, no adverse impacts to light, air and noise, wind and temperature levels are anticipated”, and noted that since the project must conform with “the requirements of the City Engineer’s Department and Lights and Lines Department” to ensure all mechanicals are properly screened, vented and baffled in conformance with the noise ordinance, “there should be no adverse impacts in the immediate vicinity of the development.”

The Planning Board also discussed the Design Guidelines and, based on them, made a further relevant finding and comment. The finding was its answer to the question, did the new and infill buildings share the same orientation to the street and have similar front yards and side yards as is common in the neighborhood? Its answer was “yes.” As the Planning Board found, the buildings were “similar to the rest of the buildings on Aldersey Street” and “compl[ied] with all dimensional requirements of the ordinance and have setbacks comparable to other buildings in the neighborhood.” The Planning Board’s comment was in response to the neighbors’ complaints about the project’s size and scale. On that it said:

The Applicant has attempted to design this project so that it is compatible with the surrounding neighborhood and, to the greatest extent possible, in compliance with the requirements set forth under the zoning ordinance. The [Planning] Board would, however, encourage the Applicant to continue working with the neighborhood, the ZBA and the Historic Preservation Commission to resolve any outstanding issues surrounding the project, particularly with respect to the design, scale and massing of the two new buildings being proposed. Ideally, the footprint, size and height of these two new buildings could be further reduced, achieved either through a reduction in size of the individual units or through a reduction in the number of units. This would allow these two new buildings to be pulled back further from Aldersey Street and allow for an increased setback between all three buildings, improving the setting and views to the existing Robert A. Vinal house and helping ensure that these two new structures do not dominate the streetscape and detract from the setting of this existing historic home. [Note 29] With respect to the design detail of the buildings the [Planning] Board would defer to the Historic Preservation Commission to determine historical accuracy and compatibility of the proposed design, and would ask the Applicant to continue cooperating with the Commission.

Planning Board Recommendation at 13-14. The Planning Board noted, however, that it was simply “encourag[ing]” such a course of action and giving its thoughts on on an “ideal” resolution. Judged strictly by the standards in the ordinance and the project’s compliance with those standards, the Planning Board was clear and unequivocal; the project warranted the special permit requested, and the Planning Board recommended that the permit be granted. Id. at 13 (recommendation of approval of the §7.2 special permit with site plan review for more than one principal structure in a Residence A (RA) zoning district), 14 (recommendation of conditional approval of the §7.3 special permit with site plan review for more than three units in an RA zoning district).

The Zoning Board then heard the case and, as noted above, rejected the Planning Board’s recommendation and denied the special permit application in its entirety. The reasons given were that the development was deemed “too large with respect to the scale, massing, and design of the two buildings proposed”, “not compatible with the surrounding neighborhood in an RA zone”, had “too many” units for the site, and “would be substantially more detrimental for the neighborhood.” Decision, Somerville Board of Appeals, Case No. 2003-20, 9-11 Aldersey Street (Feb. 4, 2004). Neither facts nor analysis were given to explain how the Board came to these conclusions.

At trial, the Board defended its decision based on a purported comparison of building footprints and living area. The evidence showed, however, that if a relevant comparison is made (a like to like comparison, i.e. comparing the footprints and living area of neighboring structures based on the overall amount of land occupied), the Meehan buildings have comparable numbers and merge smoothly into the neighborhood — a fact confirmed by both the scale models of the project (Exs. 5, 6 & 7) and the court’s view of the neighboring buildings. More specifically: [Note 30]

* Each of the Meehan buildings is lower than the buildings on the lots around it.

* Meehan Building C (the six-unit structure on the right) will have 6605 square feet of living area. The buildings it faces on the right (1 Aldersey and 42 and 44 Walnut, grouped together so that the overall land area occupied is approximately the same), have 11,082 square feet of living area [Note 31] (68% more than Meehan Building C) and the same number of units (six). The Meehan setbacks are either the same or greater than those neighbors (the same as the rear setbacks at 42 and 44 Walnut [the abutting side], and greater than the setbacks at 1 Aldersey Street [whose garage is directly on the property line].

* Meehan Building A (the three-unit building on the left) will have 7125 square feet of living area. The buildings it faces on the left (17 &17R Aldersey) have 6058 square feet and contain nine units. [Note 32] #17 and #17R are physically separated (and thus buffered) from Building A by the 17/17R garage, the asphalt parking area on that side of the 17/17R lot, and by the setback for Building A on the Meehan lot.

* Meehan Buildings A, C, and existing building B total 11 units. The new buildings (A & C) are turned on their side towards the street so that their streetscape widths (the relevant scale and mass) are the same as the smaller buildings across Aldersey Street (6, 8 and 12 Aldersey). See Ex. 3. Nos. 6, 8 and 12 Aldersey Street (grouped together to give a total land area comparable to the Meehan property) have 9 units total and, if 4 Aldersey is added, 27.

* The buildings behind the Meehan development are 10, 14, 16 and 18 Summit, grouped together to give a more equivalent land area. Not only are they upslope from the Meehan property, thus taller, and separated from it by a high wall; #10, #14 and #16 have large structures directly on the property boundary with no setback whatsoever. The Meehan development has all required setbacks. The total square footage living area of #10, #14, #16 and #18 is 15,381, with 14 units total. The Meehan development (all three buildings added together) has 11 units, with a total living area of 17,198 square feet. Again, the new buildings (A & C) are turned sideways so that the width (scale and mass) they present to the rear is the same as the width (scale and mass) of the buildings behind it.

Further facts are set forth in the Discussion section below.

Discussion

At issue is the denial of a special permit, ordinarily a matter of deference to the decision of the local board. But deference is not appropriate if the Board’s decision is based on “a legally untenable ground” (a mistaken interpretation or improper application of the ordinance or bylaw) or is “unreasonable, whimsical, capricious or arbitrary” (i.e., “whether, on the facts the judge has found, any rational board” could come to the same conclusion). See Roberts v. Southwestern Bell Mobile Sys. Inc., 429 Mass. 478 , 486 (1999); Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 74 (2003)).

“On review, the judge’s role is to determine whether the reasons given by the board had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Wendy’s Old Fashioned Hamburgers of New York Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 387 (2009) (internal citations and quotations omitted). While a board’s denial of a special permit need not contain detailed factual findings, see Schiffone v. Zoning Board of Appeals of Walpole, 28 Mass. App. Ct. 981 , 984 (1990), conclusions without supporting rationale and unsupported by facts in the record, that do nothing more than repeat regulatory phrases, can be indicative of a decision that is “unreasonable, whimsical, capricious or arbitrary, and therefore invalid.” See Wendy’s Old Fashioned Hamburgers, 454 Mass at 386. [Note 33] It is also noteworthy when a local board’s unsupported judgments are contrary to the determinations of other local boards and departments, also tasked with reviewing the project. See Wendy’s, 454 Mass. at 378 (noting, in reversing the zoning board’s denial of a special permit application, that both the town director and the Massachusetts Highway Department had reviewed and recommended approval of the application).

The factors governing the evaluation of the special permit at issue are detailed in SZO §§ 5.2.5 a-u and the design guidelines of §§5.2.4.B. The Board, quite rightly, has no quarrel with the Meehan development’s curb cut locations, parking arrangements or adequacy, on-site vehicle circulation, fire or emergency vehicle access, traffic generation, noise, lighting, drainage, sewerage, utility hookups, safety, or environmental impacts. As the facts show, there will be nothing adverse to the neighborhood resulting from any of these, and whatever minor details might remain to be addressed are the subject of the ultimate building permit. [Note 34] Instead, the Board made judgments about “scale, massing and design”, overall number of units, and “compatibility” with the surrounding neighborhood. But it made those judgments in conclusory fashion and, unlike the Planning Board, untethered to the guidance in the ordinance.

“Scale” and “massing” are functions of overall lot size, frontage, building height, setbacks, lot coverage, landscaped area, floor area ratio, number of units, and lot area per unit. Each of these is specifically addressed in the ordinance, and the proposed development complies with each of the ordinance requirements. Minimum lot size is compliant. [Note 35] Building height is compliant. [Note 36] Front, side and rear setbacks are compliant. [Note 37] Floor area ratio is compliant. [Note 38] Landscaped area is compliant. [Note 39] Frontage is compliant. [Note 40] Parking is compliant. [Note 41] And, most importantly, in a section specific to special permits, the ordinance allows a minimum lot area per dwelling unit of 2,250 square feet. SZO §8.5.c. Here there are 2,272 square feet for each of the eleven units. The number of units is thus precisely what the ordinance contemplates.

Unlike the Planning Board, the Zoning Board did not acknowledge this compliance or even discuss it. The analysis thus shifts to whether, despite compliance with the specific guidance in the ordinance provisions, a rational, non-arbitrary basis exists for a determination that the development is out of scale or character with the neighborhood, i.e. what, exactly, makes it “too large with respect to massing, design and number of units” in the context of its surroundings and this neighborhood. The Board does not say, and the facts do not support such a finding.

At trial, the Board contended that the Meehan buildings would be visually “out of place” in this neighborhood. But there is nothing that rationally supports this conclusion. They are designed in the same architectural style — a point not disputed by the Board. None of the Meehan buildings come anywhere near the sheer mass and bulk of the structure to their right (1Aldersey), and the proposed new building on that side of the Meehan lot (Building C) is far less in size, scale and footprint than the buildings it abuts – 1 Aldersey, 42 Walnut Street and 44 Walnut Street. The buildings behind the proposed Meehan development —10, 14, 16 and 18 Summit Avenue — are visually unaffected. They are at higher elevations and, as a group (the only rational basis for comparison since the Meehan lot is substantially similar in area to those four lots taken together), similar in size, scale and footprint. The number of units in the Meehan development (eleven) is not out of character with the neighborhood. As with mass and scale, the number of its units must be evaluated in the context of overall lot size. There are more units in the buildings behind it (10, 14, 16 and 19 Summit Avenue — 14 units in four buildings on roughly the same footage), and the proposed number of units on the Meehan property (11, in three buildings, on 25,000 square feet) is in rough equivalence to its neighbor to the left (17 & 17-R Aldersey — nine units in two buildings on 14,425 square feet). Moving across the street, grouping the lots and buildings to make a rational comparison, the Meehan development is far less dense than the 18 unit apartment building at 4 Aldersey, and roughly equivalent to the 9 units in three buildings at 6, 8 and 12 Aldersey Street which (viewed in combination) sit on a smaller area of land. The Meehan development’s setbacks, particularly at the front and sides, are materially the same as their surroundings, mirroring the front setbacks of the homes across the street and, at their sides, greater than their neighbors (1 Aldersey, 17 & 17R Aldersey, and 16 Summit Avenue) which have structures right on their boundary with the Meehan property and thus have no setback at all. The new Meehan buildings will be turned sideways to the street, putting the majority of their “mass” and “bulk” interior-facing and reducing their visual impact on the street to a minimum. See Exs. 5, 6 & 7. And, as noted above, the Meehan development will be visually harmonious with all the buildings around it — front porches, gabled roofs and dormers, wood clapboard siding, period details and color, all subject to Historic Preservation Commission approval.

The defendant’s counter-arguments mis-apply the ordinance and lack a rational basis in the facts. They are set forth chiefly in the affidavit of George Proakis, and the flaws are apparent from a close reading of that affidavit.

First and foremost, the Board’s arguments ignore the language of the ordinance. The Board admits that there are buildings in the neighborhood, comparable in size, scale or mass with the buildings in the Meehan development, which, by its analysis, would also be inappropriately large, too dense, or out of scale (1 Aldersey, 4 Aldersey, 17 & 17R Aldersey, and 18 Summit Avenue at the back of the Meehan property), but attempt to distinguish them on three grounds: they are at corners (#1 and #4 Aldersey), [Note 42] received a variance under circumstances that would likely not be repeated (#4 Aldersey), [Note 43] or may have been built, expanded or converted to more dense use illegally (#17/17R Aldersey and 18 Summit). The ordinance, however, makes no such distinctions. Rather, it requires an analysis of what is common to the neighborhood and characteristic of the surrounding area — the entire neighborhood and the entire surrounding area. It does not allow the Board to pick and choose which buildings it wishes for comparison. That way lies arbitrariness, caprice and whim. And the “choice” the Board makes in this case — to ignore 1 Aldersey, 4 Aldersey, 17/17R Aldersey, 18 Summit and, for that matter, the additions to 10 Summit, 14 Summit, 6 Aldersey, 8 Aldersey and 12 Aldersey that do not appear on the zoning maps upon which Mr. Proakis based his arguments — makes no rational sense. The buildings it excludes for comparative purposes are prominent among the neighboring buildings and, in the case of 1 Aldersey, 4 Aldersey, 6 Aldersey, 8 Aldersey, 12 Aldersey, 17/17R Aldersey, 10 Summit, 14 Summit, and 18 Summit, are the closest buildings to the Meehan development. Moreover, the Meehan buildings are all dimensionally compliant with current zoning. The neighborhood buildings are not. Given all this, it cannot be said, on any objective basis, that the Meehan buildings are not “compatible” with what zoning contemplates or “out of character” with the neighborhood. [Note 44] Indeed, this was the express finding of the Planning Board.

The Board next argues, on “lot coverage” and “density” basis, that the Meehan buildings are materially different from their surrounding neighbors. But architecturally they are not. Visually, in mass, scale and size, they are not (see, e.g., Exs. 5-7). Nor are they objectively different. As previously noted, the relevant comparison is not lot by lot. It is by comparable area occupied. Thus, as noted above, the relevant comparison is Building C with the structures on 1 Aldersey, 42 Walnut and 44 Walnut; Building A with 17 & 17R Aldersey; the three buildings with their neighbors to the rear (#10, #14, #16 and #18 Summit) and across the street (#4, #6, #8, and #12 Aldersey); and the streetscape as a whole in light of the fact that the new buildings (A & C) are turned on their sides, minimizing their impact. On those, the proper comparison, even the numbers match up favorably. See the facts recited at 17-18 above.

The Board next argues that the Meehan development is too “automotive” oriented. But this is an odd objection. Its garages are underneath the buildings. Its outdoor parking areas are at the rear of the lot, under the slope of Prospect Hill and shielded from the buildings to the rear by both the slope and the high wall along the property boundary. The driveways are there to meet fire and traffic department requirements. The property as a whole will be landscaped. Driveways and garages are common up and down the street (see Ex. 2); 1 Aldersey’s garage is right next to the sidewalk, and both 4 Aldersey and 17/17R Aldersey have large, open air asphalted parking areas directly visible from the street. With its front porches and entry steps, like its neighbors’, facing the street, the Meehan development will be just as pedestrian-oriented as those neighbors.

Finally, the Board argues that the Meehan development will “overshadow” the historic farmhouse, and that the problem of such over-shadowing (in essence, blocking the view of the farmhouse as seen from the street) is “insurmountable”. There are three responses to this. First, the farmhouse view will not be blocked. As previously noted, the two new buildings have been pulled back to the sides of the lot intentionally to keep the farmhouse unobstructed. Second, “historical” considerations are not for this Board. They are the province of the Historic Preservation Commission, which will consider and act on them. Third, should that Commission permissibly rule that Buildings A & C should be set back further, Mr. Meehan can readily accommodate that ruling. See Ex. 9 (proposed re-design, showing setbacks that align all three buildings) and the supporting affidavit of Mr. Meehan’s architect, Kenneth Poole.

Conclusion

In sum, the Board acted arbitrarily and capriciously in denying the special permit application, in disregard of the ordinance commands. The ordinance was neither designed nor intended to allow “decision by preference,” but rather sets forth criteria which must be followed. Here, they were not. The Board’s decision made no attempt to explain or justify its ruling, and its post facto submissions at the trial fail to provide a rational basis in actual, relevant fact. [Note 45]

Because Historic Preservation Commission review and approval has not occurred, and the result of that process may be a re-design (see Ex. 9), it is premature to order the special permit issued. See Wendy’s Old Fashioned Hamburgers, 454 Mass. at 387-389. Instead, this matter is REMANDED to the Board to await Historic Preservation Commission review and, if a re-design occurs as a result of that review, the Board’s new decision based on that re-design. In the meantime, this court retains jurisdiction over the case, including over any appeals which may be taken (or other actions brought) from or relating to the Board’s further proceedings pursuant to this Order. No one currently a party to this litigation and aggrieved by the Board’s new decision needs to initiate in this court a new lawsuit appealing the Board’s new decision, but any such aggrieved party shall, within twenty (20) days of the filing of a revised decision with the Town Clerk: (a) file with the court (and serve on all parties) a proper motion for leave to amend the pleadings to assert a right to judicial review of the new decision, with the form of the proposed amendment annexed, and (2) file with the Town Clerk written notice of having filed the motion to amend, accompanied by true copies of the moving papers.

SO ORDERED.