MISC 09-415306

September 23, 2014

Worcester, ss.




The instant action concerns the property known and numbered as 159 Gates Pond Road in Berlin, Massachusetts (property/locus). It was initiated by David P. Brennan (plaintiff / Brennan) as an appeal pursuant to G.L. c. 40A § 17 from a decision of the Town of Berlin Zoning Board of Appeals (Board) denying a Special Permit and Site Plan Review. While the Board also denied the plaintiff’s application for a Variance, the plaintiff, in his Complaint, explicitly waives any appeal from that denial.


At the time of his application, Brennan conducted a business, Brennco Equipment Corporation which removed and/or hauled sand from a sand pit located in Sudbury, Massachusetts. He used dump trucks to move sand from Sudbury for purposes of delivery to other towns. He sought a Special Permit and Site Plan Review in order to operate a home-based contracting business from, and store his heavy equipment at, his residence at 159 Gates Pond Road. Because the Bylaw precluded the storage at the locus of any vehicle exceeding 30,000 pounds in gross vehicle weight and because Brennan in his Application sought to keep vehicles at the locus weighing up to 73,000 pounds, Brennan simultaneously sought a Variance. [Note 1] For the reasons enumerated infra at paragraph 9 the Board denied all relief sought by the plaintiff. This appeal followed.

The plaintiff alleges that the Board’s Decision was legally untenable, whimsical, and arbitrary or capricious. He therefore requests that the court annul that Decision.

At a trial conducted on April 2, 2014, this court heard the testimony of David Brennan, Lawrence Brandt, Dennis Bartlett, Melissa DiFonzo, Kevin Diggins, and Robin Berry. Twenty-one exhibits were admitted into evidence. Those exhibits are incorporated by reference into this decision for purposes of appeal.

Findings Of Fact

On all credible testimony, exhibits, stipulations and other evidence properly introduced at trial or otherwise before it, and the inferences reasonably drawn therefrom, this court finds as follows:

1. David P. Brennan owns the property and resides at 159 Gates Pond Road, Berlin, Massachusetts. The locus is comprised of 233,732 square feet or 5.368 acres. [Note 2] It is improved with a single family dwelling and a garage/barn; it is located in a resident/agricultural zoning district.

2. At the time he submitted his Application, Brennan served as president and sole shareholder of Brennco Equipment Corporation, an excavating contractor.

3. Since filing his application with the Board, Brennan claims to have sold all of the equipment listed in his application. [Note 3] He testified that he has not been engaged in the work for which he requested a home-based contracting permit since 2010. He is currently employed buying, remodeling and selling homes. [Note 4]

4. The plaintiff apparently sought a building permit in conjunction with his proposed Home-Based Contracting Business. In denying the requested Building Permit by letter dated July 27, 2009, the Building Commissioner indicated that Brennan was obliged to seek a Special Permit for a Home- Based Contracting Business, Site Plan Review and a Variance pursuant to “Section 540.6 of the Zoning Bylaw the vehicles[’] gross weight exceeds 30,000 gvw.” [Note 5]

5. Section 540 of the Zoning Bylaw (Bylaw) is captioned “Home-Based Contracting Business.” Subsection 540.6 thereof provides as follows:

No vehicles with gross vehicle weight [GVW] greater than 30,000 lbs shall be stored or used on the property. [Note 6]

6. Consequently, on July 29, 2009, Brennan filed with the Board an Application For Hearing And Findings Of Fact as well as a Site Plan Approval Application For an Commercial/Industrial Use. By virtue of these submissions, Brennan sought a Special Permit, Site Plan Review, and a Variance from the truck weight limitation of 30,000 pounds. .

7. An attachment to the Application For Hearing And Findings Of Fact [Note 7] contained an Equipment List of items to be stored at the residence. This list included one 2006 ten-wheel Mack dump truck and one 1972 antique ten-wheel Mack dump truck. Each truck was listed by Brennan at “73,000 lbs.” [Note 8] The list included the statement that “[t]he two dump trucks above are always going to be on site as they will be garaged there.” The following exchange took place on Mr. Brennan’s direct examination:

Q: Now with your application, Exhibit No. 4, you describe that vehicle [the ten wheel dump truck] as being 77,000 pounds gross vehicle weight?

A: Seventy-three thousand.

Q: Seventy-three thousand, I’m sorry. Is that correct? A: Yes, I did.

8. There followed an Equipment List generally kept off site which included one Caterpillar 980G Wheel loader and one Caterpillar D8N Bulldozer. The weight for each was given as “70,000 lbs.” This list included the following notation:

Generally the Loader and Dozer above are always on site elsewhere but occasionally could come home so we are noting that possibility. (emphasis added)

9. The Board conducted a public hearing on September 9, 2009. Having determined that the application did not meet the Special Permit criteria specified in Section 1223, the Board denied Brennan’s Special Permit application on October 15, 2009. Referencing each Subsection, it found as follows:

* As to 1223.1, whether the use would contribute to social economic or community needs, the vote was unanimous that it would not significantly contribute to these values.

* As to 1223.2, regarding traffic flow and safety, the vote was unanimous that it would have a significant adverse effect.

* As to 1223.3 regarding adequacy of public utilities and other public services, the vote was unanimous that the addition of large trucks on this residential road would likely place a greater need for repairs, improvements, and traffic control.

* As to 1223.4, regarding the neighborhood character and social structures, the vote was unanimous that it would adversely affect a neighborhood strongly committed to retaining its residential character.

* As to 1223.5, regarding impacts on the natural environment, there was insufficient evidence to make a definite finding.

* As to 1223.6, regarding potential fiscal impact on town services, tax base, and employment, the Board found unanimously that beneficial impact on employment and tax base would be minimal, but an adverse impact on the tax base would be substantial if the change of the rural residential character of the neighborhood was reflected in lower property values, assessments, and property tax revenues to the Town. Town services relating to public safety could demand expenditures of funds to repairs and policing. [Note 9]

10. Simultaneously therewith, the Board issued a Decision on the Brennan

Variance application as follows:

Since the truck weight limit variance request is appurtenant to the issuance of the special Permit above denied, it is now moot.

There followed a separate unanimous vote to “deny the variance.”

11. In paragraph 24 of its Complaint, the plaintiff states as follows:

The Plaintiff makes no Appeal of the requested Variance as the request is moot as he will use no vehicles with a gross weight over 30,0000 lbs. [Note 10]

As it has not been challenged in this appeal, the Decision of the Board to deny the requested Variance stands.

12. Following the Board’s vote on the Special Permit and the Variance requests, the Board rendered a Decision on the Site Plan Approval application as follows:

Since the Site Plan is appurtenant to the issuance of the Special Permit above denied, it is now moot.

There followed a separate unanimous vote to “deny Site Plan Approval.”

13. The Table of Accessory Use Regulations in Section 340 of the Zoning Bylaw [Note 11] requires that one seeking to establish a Home-Based Contracting business in an RA [Note 12] District first secure a Special Permit. Such use is also subject to Site Plan Review.

14. Melissa DiFonzo (DiFonzo), a neighbor of the plaintiff, resides at 158 Gates Pond Road with her husband and two children. DiFonzo recalled observing Brennan's equipment causing traffic disruption, citing an “occasion where...one of the pieces of equipment was so large that it... blocked the entire road, so the bus had to wait probably about 10, 15 minutes because it couldn't make the angle to get up to 159 Gates Pond Road, so traffic was stopped on both ends.” [Note 13]

15. Gates Pond Road is twenty feet wide in the vicinity of 159 Gates Pond Road. [Note 14] There are no sidewalks on the Road. [Note 15] It is posted for “No thru traffic.” [Note 16]

16. Gates Pond Road is winding and hilly [Note 17] with a narrow sharp turn near the locus at 159 Gates Pond Road. [Note 18] In addition, there are other difficult turns and blind corners. [Note 19]

17. Gates Pond Road is a popular destination for bikers and runners. [Note 20] The nearby Hudson High School Track and Cross Country teams frequently run on the road. [Note 21] The Hudson High School Track Team “jogs by there daily. And it’s a very narrow, sharp, hairpin turn….” [Note 22] There are “a lot of families in the neighborhood…” [Note 23]

18. Gates Pond Road is traversed by school buses. [Note 24] The nearest Town of Berlin school is in the center of Town. It is approximately two miles from the locus. [Note 25] The Town of Hudson High School is approximately three quarters of a mile from the locus. [Note 26]

19. There are children who ride the school bus who live on Gates Pond Road. These children are picked up and dropped off by the school bus on the Road. [Note 27]

20. Section 110 of the Bylaw provides that it is “adopted in accordance with the provisions of Massachusetts General Laws, Chapter 40A. [Note 28] In relevant part, M.G.L. c. 40A, s. 1A defines “zoning” as, “ordinances and by-laws, adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants.” (emphasis added)


G.L. c. 40A § 17

The plaintiff initiated the instant action challenging the denial by the Town of Berlin Zoning Board of an Application for a Variance, Special Permit and Site Plan Approval.

In an appeal of a denial of a Variance or Special Permit, the burden lies with the plaintiff [Note 29] to prove that “the variance was denied solely on a legally untenable ground or that the decision was arbitrary and capricious.” As noted supra, the plaintiff has waived any claim arising out of the Board’s denial of the Variance request. Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979). “Review of a board's decision...pursuant to G.L. c. 240 § 17 involves a “peculiar” combination of de novo and deferential analysis.” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009). While a judge is to give no evidentiary weight to a zoning board's factual findings, the decision of the board cannot be disturbed unless it is on legally untenable ground or is based on an unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use regulations to the facts as found by the judge. Among the purposes of the Zoning Act is to achieve “greater implementation of the powers granted to municipalities,” including “restricting, prohibiting, permitting or regulating” the uses of land.1975 Mass. Acts 808, § 2A. These powers are not to be “narrowly” construed. Wendy's Old Fashioned Hamburgers of New York, Inc., 454 Mass. at 381, citing Collura v. Arlington, 367 Mass. 881 , 885 (1975).

A judge must give “substantial deference” to a board's interpretation of its zoning bylaws and ordinances Manning v. Boston Redevelopment Auth., 400 Mass. 444 , 453 (1987) and review with deference legal conclusions within the authority of the board. See Wendy's Old Fashioned Hamburgers of New York, Inc. 454 Mass. 374 , 380; Mellendick v. Zoning Bd. of Appeals of Edgartown, 69 Mass. App. Ct. 852 , 857, 872 (2007). Deference is owed to a local zoning board because of its special knowledge of “the history and purpose of its town's zoning by-law.” Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1971). Even “when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld ... if a rational basis for the denial exists which is supported in the record.” Wendy's Old Fashioned Hamburgers of New York, Inc. 454 Mass. 374 , 380.

The Board relied primarily on safety and public welfare concerns in rendering its decision. From the record before it, this court finds that those concerns constituted appropriate bases for denying the plaintiff’s Application for a Special Permit. [Note 30] The Board was concerned that to an unacceptable degree, the proposed use would entail large dump trucks occupying and operating upon portions of relatively narrow roads. Gates Pond Road lacks sidewalks while it is travelled by school buses that pick up children and drop them off along the Way. Neighbors testified that the Gates Pond Road was frequented by joggers in addition to high school track and cross country teams. Bikers frequently used the Road, as well.

In its consideration of Subsection 1223.2 of the Bylaw, the Board found that the grant of a Special Permit for the proposed use would have a significant adverse effect on traffic flow and safety. It explained that these adverse effects would arise from “increased commercial use in this established rural residential area served by a narrow, winding road lacking sidewalks which is heavily used by school children and other pedestrians.” [Note 31]

While the Board did not provide more particularized reasons for their denial, their safety and public welfare concerns comprised a reasonable basis for denial. If a rational basis exists in the record, a denial by a board will be upheld. Wendy's Old Fashioned Hamburgers of New York, Inc. 454 Mass. 374 , 380. It is not the place of this court to substitute a judgment for the conclusion of the Board, but rather to determine whether or not the Board rendered a decision based upon legally untenable ground or rendered a decision that was otherwise unreasonable, whimsical, arbitrary, or capricious. “If reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit [such as a problem with traffic and pedestrian safety], it [is] the board's decision, and not the court's, which [is] controlling.” Bellas, 56 Mass. App. Ct. 1106 citing Kinchla v. Bd. of Appeals of Falmouth, 11 Mass. App. Ct. 927 (1981).

Brennan presented no evidence that effectively controverted relevant testimony concerning traffic, safety or general welfare issues presented by the plaintiff’s neighbors. [Note 32] The plaintiff instead argues that he meets the requisite requirements for the operation of a home-based contracting business as specified in Section 540 of the Bylaw. [Note 33]

However, the plaintiff’s argument is flawed in this respect. Even if he were able to demonstrate compliance with the eight subsections comprising Section 540, a notion this court rejects, the plaintiff is still obliged to prove that he is entitled to a Special Permit under the criteria delineated in Section 1223 of the Bylaw. The Table of Accessory Use regulations as set forth in Section 340 makes clear that in an RA zoning district, a home-based contracting permit is subject to the grant of a Special Permit. [Note 34]

A “board may deny a special permit even if the facts as found by the judge show that a permit could have been granted.” Bellas v. Planning Bd. of Weymouth, 56 Mass. App. Ct. 1106 (2002). Section 1223 of the Bylaw provides that “special permits shall be granted by the Special Permit Granting Authority...only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the town or the neighborhood….” [Note 35] Under Subsection 1223.2, safety is among those factors requiring consideration by the Board in rendering its Decision. This court is amply satisfied that the adverse effects of the proposed use will not outweigh any beneficial impact upon the Town of Berlin or upon the neighborhood at issue.


The Board acted well within its authority in denying plaintiff's application for a Special Permit. This court concludes, based upon the trial record, that the Board’s Decision, predicated in no small measure upon safety concerns arising from increased commercial use in an established rural residential area, “served by a narrow, winding road lacking sidewalks and which is heavily utilized by school children, school buses, bikers, joggers and other pedestrians” [Note 36] resulted in a denial on appropriate grounds. This court further concludes that the Decision was not unreasonable, arbitrary, capricious, or whimsical. Nor was the decision based on legally untenable grounds. As such, this court concludes that the action of the Board should be Affirmed.

Judgment to enter accordingly.


[Note 1] Brennan now argues that two dump trucks, of the vehicles he intended to keep at the locus, weighed less than 30,000 pounds each. The fact remains that the Application listed a weight of 73,000 pounds for each of two dump trucks. This court is satisfied that Board relied, with ample justification, upon the plaintiff’s own submission in rendering its Decision.

[Note 2] See Exhibit 2.

[Note 3] Tr. 50: 11.

[Note 4] Tr. 59: 12-24. The court finds that Mr. Brennan’s testimony concerning his business activities to be confusing and contradictory. See Tr. 56: 23-24 through Tr. 59:1-16.

[Note 5] Gross Vehicle Weight. See Exhibit 7, Berlin Building Inspector denial.

[Note 6] See Exhibit 1.

[Note 7] Exhibit 6.

[Note 8] See, Exhibit 4.

[Note 9] See Exhibit 3.

[Note 10] See Tr.9:1-3. According to plaintiff’s counsel “[t]hat variance appeal was waived.”

[Note 11] See Exhibit 1.

[Note 12] Residential and Agricultural District.

[Note 13] Tr. 96-97.

[Note 14] Tr. 25: 6-11.

[Note 15] Tr. 17: 13-15.

[Note 16] Tr. Tr. 18:4-6. See also, Tr.85:10-20.

[Note 17] Tr. 107: 8-17.

[Note 18] Tr. 91: 10-11.

[Note 19] Tr. 86: 16-21.

[Note 20] Tr. 89: 12-13. Tr. 114:4-7.

[Note 21] Tr. 89: 15-17, Tr. 97: 8-9.

[Note 22] Tr. 97: 6-10. Tr. 107:8-12; Tr. 107:16-17.

[Note 23] Tr.86:22-23.

[Note 24] Tr. 54: 23-24.

[Note 25] Tr. 32-20-23.

[Note 26] Tr. 89:14:20.

[Note 27] Tr. 87: 1-4, Tr. 92: 1-4, Tr. 106: 13-16,

[Note 28] See Exhibit 1, Bylaw, p.1

[Note 29] Bobrowski, Handbook of Massachusetts Land Use and Planning Law: Zoning, Subdivision Control, and Nonzoning Alternatives §11.04 (2nd ed. 2002).

[Note 30] This court concurs with the Board insofar as the Special Permit denial renders moot the request for Site Plan Review.

[Note 31] See Exhibit 3.

[Note 32] It is noteworthy that the equipment in the plaintiff's application has been sold and that the plaintiff no longer runs the business for which he applied for a Special Permit. The plaintiff would seemingly have this court render a decision based upon speculation, claiming that he has plans to buy lighter trucks and revive his previous business. This court declines such invitation and must consider the Board's decision in light of the Application then before it.

[Note 33] See paragraph 5 supra.

[Note 34] Exhibit 1.

[Note 35] (Emphasis added). Exhibit 1.

[Note 36] Exhibit 3.