Plaintiffs John C. Powers and David C. Warner, as Trustees of the Collins Irrevocable Property Trust, (Plaintiffs) appeal the decision of the Falmouth Zoning Board of Appeals (Board), whose members are defendants, to grant a special permit to defendant Johnson Homes, Inc. (Johnson Homes). The special permit decision (Decision) was filed with the municipal clerk on June 8, 2012; it authorized Johnson Homes to build five multi-family residential structures, each containing two apartments, in a business-zoned area of North Falmouth. Plaintiffs also seek in this case a determination under G. L. c. 240, §14A as to the validity of a 2007 rezoning of land which includes the properties at issue in this case; Plaintiffs contend that the change constituted spot-zoning in violation of G. L. c. 40A, § 4.
Frank P. Bagarella, Trustee of Nyes Park Professional Offices Trust, along with Francis P. Bagarella and Carol A. Bagarella, Trustees of the Pharmacy Realty Trust (Bagarellas) hold title to the locus and intervened as defendants in this action. The Bagarellas, together with the Town, the members of the Board, and Johnson Homes (collectively, Defendants) assert that the 2007 zoning amendment was valid and that the Board properly granted the special permit.
II. PROCEDURAL HISTORY
Plaintiffs complaint, originally filed June 25, 2012, was amended following colloquy with the court at the August 9, 2012 case management conference. The amended complaint filed August 13, 2012 contains the following counts:
1. Count One, brought under G. L. c. 40A, § 17, seeking judgment that: [t]he decision [to grant the special permit to Johnson Homes] exceeds the authority of the Zoning Board of Appeals, is based on legally untenable grounds, and is unreasonable, arbitrary and capricious, and thus should be annulled.
2. Count Two, a request for declaration, under G. L. c. 240, §14A [Note 1], that :[t]he rezoning of [the locus, Lots 8 and 9 in 2007] from Residential B to Business 3 constitutes spot zoning....
The parties sought at several points the opportunity to resolve this litigation consensually. The court afforded them chances to do so. After initial efforts failed to achieve settlement, discovery proceeded, and on June 18, 2013, Johnson Homes and the Bagarellas filed motions for summary judgment. Plaintiffs filed opposition on August 16, 2013, the Defendants replied on September 19, 2013, and the summary judgment motions, along with related motions to strike, were heard by the court on September 30, 2013. Following argument, the court from the bench made rulings awarding partial summary judgment to the Defendants, based on those facts not in dispute, and otherwise directed the parties to prepare for trial, concluding material disputes of fact prevented full disposition of the case under Rule 56. [Note 2]
The case proceeded to trial on the issues left unresolved on summary judgment. On March 21, 2014, in the presence of counsel, I took a view of the locus, the lots adjoining it, and the surrounding area. The trial in this case opened on March 25, 2014, and proceeded for two days of testimony. Over the course of the trial, forty-six exhibits were admitted in evidence, some in multiple parts, and eight witnesses testified. Johnson Homes called Thomas Bunker, Edward Lewis, Jeffrey Ryther, Leslie Fields, Jennifer Conley and David Johnson. Plaintiffs called Robert Daylor and Webster Collins. Court reporters were present at all times and created transcripts of the testimony and proceedings. When the taking of evidence concluded on March 26, 2014, the court suspended the trial. Counsel were instructed to await the receipt of the trial transcripts, to file and serve posttrial legal memoranda and proposed findings of fact and rulings of law, and that trial would resume for closing arguments. After the transcripts were filed in May 2014, counsel reported renewed efforts underway among the private parties to settle this litigation. They requested and received extensions of the time in which to make their post-trial written submissions. After these further efforts at resolution were reported as unsuccessful, counsel made their posttrial written submissions. They were reviewed by the court, and the case then argued by counsel. I now decide the case.
III. FINDING OF FACTS
Based on all the evidence, and the reasonable inferences I draw therefrom, I make the following factual findings and rule as follows:
1. The Intervenor-Defendants are Frank P. Bagarella, Trustee of Nyes Park Professional Offices Trust and Francis P. Bagarella and Carol A. Bagarella, Trustees of the Pharmacy Realty Trust. These parties hold title to (or serve as trustees with respect to the common areas of) two adjoining parcels, Lot 8 and Lot 9, in the North Falmouth area of the Town of Falmouth, Massachusetts. The lots are shown on Plan 11332-G issued by this courts Barnstable Land Registration District.
2. On Lot 8 exists Nyes Park Professional Offices, a Massachusetts condominium established by Master Deed dated January 11, 1989. Peter J. Bagarella is Trustee of Nyes Park Professional Offices Trust.
3. By deed dated February 15, 1993, Peter J. Bagarella conveyed Lot 9 on Land Court Plan 11332G to Peter Bagarella and Francis Bagarella as trustees of the Pharmacy Realty Trust. By the same deed, Mr. Bagarella conveyed Unit 3 in Building 2 of the Nyes Park Professional Offices condominium to the trustees of the Pharmacy Realty Trust.
4. Lot 8 has a land area of approximately 1.51 acres and is currently developed with three commercial buildings. These buildings contain, in total, four medical offices and one pharmaceutical supplies business. This land is often referred to as the Nyes Office Park or the North Falmouth Medical Office Center, and has been subjected to the provisions of G.L. c. 183A to create the condominium there.
5. Lot 9 is a pipe-stem shaped lot that has a land area of approximately 1.1 acres. It is currently not improved by any buildings. It has approximately seventy-five feet of frontage on County Road.
6. Together, Lots 8 and 9 have an area of approximately 2.61 acres.
7. Defendant Johnson Homes is a Massachusetts corporation with a principal place of business at 143 Palmer Avenue, Falmouth, Massachusetts.
8. On August 30, 2011 Johnson Homes applied to the Board for a special permit to construct sixteen residential dwelling units within eight buildings on Lot 9. Johnson Homes applied for the permit pursuant to §240-51, and §240-212 through 240-220 of the Falmouth zoning bylaw.
9. Johnson Homes later amended their proposal from sixteen new dwelling units down to ten new dwelling units. As proposed, these new units would be contained in five new residential buildings. Each building would contain two apartments. Two of the buildings would have flat style apartments (one on each floor); the other three buildings would have townhouse units (each unit taking up a portion of two floors). All five buildings are proposed be built in a colonial style.
10. On June 7, 2012, the Board voted to grant the special permit to Johnson Homes. The Boards written decision was filed with the Falmouth Town Clerk on June 8, 2012.
11. As a condition of the permit, Lots 8 and 9 were required to be merged into one lot. [Note 3]
12. If the Project is built and the lots are merged, Lots 8 and 9 will have a total of fifteen units contained in eight buildings. There will be ten new residential units within five new residential buildings and five existing commercial units within three existing commercial buildings.
13. In 2007, the Town rezoned Lot 9 to be in a business district. Prior to this amendment, the now proposed use of the site would not have been permitted.
14. John C. Powers and David C. Warner, as trustees, hold title to 87 Garnet Avenue, North Falmouth, Massachusetts, which consists of three parcels immediately north of Lot 9. The trustees also hold title to two Megansett Harbor waterfront parcels on the west side of Garnet Avenue.
15. The beneficiaries of the trust are Webster Collins and his wife, children, and grandchildren (Collins).
16. 87 Garnet Avenue has operated as a farm since 1962. The parcel was farmed intermittently from 1962 until the late 1990s. Since then, the same tenant farmer has rented the land from the Collins family.
17. Lots 8 and 9 are located within the village of North Falmouth, in the town of Falmouth. North Falmouth contains a historic district, but Lots 8 and 9 are not within that district.
18. Many of the areas existing buildings do not have a consistent architectural style.
19. The locus is located in a mixed-use neighborhood that includes business and other residences. Directly across the road, there is a public library, a playground, and a basketball court.
20. A local bus route and Route 28 also are within a mile of the site.
21. A body of water known as Cedar Lake is located to the west of locus. Megansett Harbor is located well to the northwest of locus.
22. The parties agree that there is a shortage of affordable housing in North Falmouth. The ten new units will be rented at a market-affordable rate. [Note 4]
23. The locus is serviced by town water. No application for approval of a Title V system for the locus has yet been filed with or approved by the local board of health.
24. Electricity and natural gas are available from existing utility lines on County Road. Garbage will be collected from the apartments using an on-site dumpster. The development will comply with all current building codes, electrical codes, and plumbing codes.
25. At 113,859 square feet, the newly merged lot will exceed the Falmouth bylaws minimum lot area requirement of 80,000 square feet.
26. The building on the land that abuts the locus to the north was constructed in the 1800s as a single family residence.
27. The closest residential neighborhood to the building site is a summer colony known as Megansett. This area is busy between June and September but is essentially empty during the winter. All uses within the Megansett section are residential, with the sole exception of one nursing home.
28. There is an 8 to 10 change in elevation between the westerly border of Lot 9 and the easterly border of Lot 9. Under the proposed plan, a considerable amount of soil will be removed from the development parcel to level the property. The exact amount was not specified by either party.
29. Under the proposed plan, a number of trees will be removed from Lot 9. Neither party specified the exact number, but one witness, Mr. Bunker, testified that it may be over one hundred.
30. Most of the existing vegetation will be removed from the site, but the site plan indicates that new vegetation will be planted.
31. The apartments to be constructed under the challenged special permit will be at least fifty feet away from the Collins property. At the highest point, the buildings in the development will be thirty-four feet tall.
32. The apartments will be located behind the existing commercial buildings on Lot 8 and behind a row of trees that will be planted between the two lots.
33. The ten new units will require five new septic systems with tanks and related facilities, affording a total design flow of 2,200 gallons per day. These tanks and other system components will be placed on what is now Lot 9.
34. The septic system for the new units will require six 1,000-gallon leaching pits. These pits will be placed on Lot 9, immediately adjacent to the Collins property. The leaching pits for the existing buildings on Lot 8 currently are located on Lot 9.
35. The development will provide twenty-two parking spaces, two of which will be handicap- accessible. The entrance to the parking lot from County Road will have a crosswalk and a stop sign.
36. Bylaw §240-51(A)(5) of the Town of Falmouth zoning bylaws states, in relevant part:
Uses allowed on special permit from the Board of Appeals [i]n B-1, B-2 and B-3 Districts [include]. . .Multifamily use if the Board of Appeals finds: that the public good will be served; that the business zoned area would not be adversely affected; and that the uses permitted in the zone would not be noxious to a multifamily use. The density of any approved proposal shall not exceed six units per acre.
37. Bylaw §240-216 states, in relevant part:
In addition to any specific requirements elsewhere in this chapter, or where no specific restrictions are made applicable to a use allowed by special permit, the special permit granting authority shall grant a special permit only upon its written determination that the proposed use will not have adverse effects which overbalance its beneficial effects on either the neighborhood or the Town, in view of the particular characteristics of the site. . .The determination shall indicate that the proposed use will be in harmony with the general purpose and intent of this chapter and shall include consideration of each of the following:
A. Adequacy of the site in terms of size for the proposed use;
B. Suitability of the site for the proposed use;
C. Impact on traffic flow and safety;
D. Impact on neighborhood visual character, including views and vistas;
E. Adequacy of method of sewage disposal, source of water and drainage;
F. Adequacy of utilities and other public services;
G. The effect of the proposed project on the adequacy of the supply of affordable housing in the Town;
H. The decision of the Planning Board under Article XXXVIII or Article XXXIX under multiple review; and
I. Compliance with all applicable sections of the zoning bylaws including, but not limited to, all performance requirements under Articles XXII to XXIV.
J. For those special permits providing affordable housing, the special permit granting authority shall require the following standards be met by conditioning the special permit accordingly: [affordable housing standards omitted]
A. The Summary Judgment Rulings
On summary judgment, the Plaintiffs argued that the Board misinterpreted the density regulations in §240-51 of the zoning bylaw, and that the Boards Decision, which rested on that interpretation, was therefore unreasonable and legally untenable. Plaintiffs also took the position that the 2007 rezoning constituted illegitimate spot-zoning and benefited only the owners of the rezoned parcels. Johnson Homes and the Bagarellas sought summary judgment in their favor on these issues, and also argued that Plaintiffs did not have the requisite standing to contest either the special permit or the rezoning. The court after hearing granted summary judgment on a number of issues raised by the amended complaint; the full text of the docket order reflecting the courts summary judgment ruling is reproduced in the margin. [Note 5] In succinct form, the court resolved on summary judgment the following issues:
Standing. The court ruled that the Plaintiffs possessed the requisite standing as person[s] aggrieved to pursue their appeal under G. L. c. 40A, § 17, and also, under the somewhat different and more relaxed standard governing such cases, to bring a request for declaration under G.L. c. 240, § 14A. Aggrievement under G. L. c. 40A, § 17 was established by the courts ruling, and the issue was not left open for trial.
Spot Zoning. The court ruled that nothing in the record supported going to trial on the Plaintiffs challenge to the 2007 rezoning by the Town, and that there were no facts which, even if proved at trial, would cause the court to conclude this was impermissible spot zoning. Accordingly, the validity of the 2007 rezoning was established at summary judgment as matter of law on uncontested facts.
Interpretation of the Density Regulations in Section 240-51. The court ruled that the Boards interpretation of the density regulations in section 240-51 of the Falmouth zoning bylawthat, because fifteen total residential units were allowed, the number of units here proposed, five commercial and ten residential units, were allowedwas not arbitrary, capricious, or legally untenable and would be respected and applied by the court. This interpretation is therefore the law of the case.
Combination of Lot 8 and Lot 9. On this point, the court accepted as adequate that the lawful and effective combination of lot 8 and lot 9 is a condition imposed by the Board as a prerequisite to obtaining a building permit; that once combined, the new unified lot will contain adequate area and support the total density proposed; and that the Plaintiffs challenge to the Boards Decision on this point failed as matter of law.
De Novo Review. As to the remaining issues presented, the court determined they required the court to undertake de novo review of the facts underlying the Boards Decision to grant a discretionary special permit, and required the taking of evidence at trial to decide if the Boards determination (that the remaining conditions of the bylaw for issuance of the special permit were satisfied) has a sufficient factual basis. Accordingly, the court denied summary judgment on these issues.
The courts rulings on summary judgment are incorporated fully into this decision, and are set out in note 5 of this decision as they appear on the courts docket for this case. Nothing in the subsequent proceedings in this case, including in the evidence heard at trial, has caused me to doubt or depart from the rulings made on summary judgment. I turn now to the questions left open following the rulings on summary judgment.
B. Burden of Proof and Standard of Review
When a local zoning boards approval of a special permit is appealed, as an initial matter, the burden of proof is on the party to whom the special permit was granted to show its entitlement to have the permit. See Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-560 (1954). If so, the court then proceeds with the familiar, if peculiar combination of de novo and deferential analyses, Wendys Old Fashioned Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), normally applied to special permit review. The burden then rests on the party seeking to overturn the grant of the permit, and the court considers this appeal de novo, but with respect for the local board.
The standards for this de novo proceeding are well established. To affirm the boards decision, the trial court must independently find that facts exist supporting each of the permits requirements for issuance. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 n.5 (2003) (quoting Vazza Properties v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973)). Judicial review of a local zoning boards approval of a special permit involves a combination of de novo and deferential analyses. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-75 (2012); Wendys Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court must review the factual record without deference to the boards findings. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953); Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). It is for the judge to determine the content and meaning of relevant statutes and bylaws. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-75 (2012); Britton, 59 Mass. App. Ct. at 73-74. This review by the court is, however, circumscribed by the requirement to defer to the judgment of the local authority. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Gervk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co.. Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with the validity but not the wisdom of the boards action. Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing an appeal under section 17 of G.L. c. 40A is not authorized to make administrative decisions. See Pendergast, 331 Mass. at 557-58; Gervk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the boards judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).
Said another way, these foundational principles mean that the court may overturn a decision of a local board only if the decision is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt.. Inc., 40 Mass. App. Ct. at 246. Where the courts findings of fact support any rational basis for the municipal boards decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.
C. Requirements for a Special Permit
Under the Falmouth zoning bylaw, a special permit for multifamily use may be issued if the Board determines that two prerequisites are met. First, the development must meet the requirements listed under §240-51(A)(5). Second, the proposed development must not have adverse effects that outweigh its benefits to the neighborhood or the Town. See §240-216 of the bylaw.
To grant a special permit for multifamily use, the Board must first determine that the proposed development meets the requirements listed under §240-51(A)(5). This section requires that the public good will be served, that the business zoned area would not be adversely affected, and that the uses permitted in the zone would not be noxious to multifamily use. This section also provides that the density of any project may not exceed six units per acre.
To grant a special permit, a board next must find that the proposed development will not have adverse effects that outweigh its benefits to the neighborhood or town. Bylaw §240-216 of the Town of Falmouth. This determination must include consideration of each of the following, as applicable:
A. Adequacy of site
B. Suitability of the site
C. Impact on traffic flow and safety
D. Impact on neighborhood visual character, including views and vistas
E. Adequacy of method of sewage disposal, source of water and drainage
F. Adequacy of Utilities and other public services
G. The effect of the proposed project on the adequacy of the supply of affordable housing in the Town
H. The decision of the Planning Board under Site Plan Review
I. Compliance with all applicable sections of the zoning bylaws
J. Standards to be met for affordable housing
Considering each of these factors, the Board must determine that the proposed use will be in harmony with the general purpose and intent of the zoning bylaw.
D. The Boards Determination of Compliance With §240-51(A)(5)
I find, on the evidence I credit, that the Board reasonably determined that the proposed development by Johnson Homes met all the requirements of §240-51(A)(5). See Shirley, 461 Mass. at 475; Wendys, 454 Mass. at 383. The facts that I have found in this case support the Boards conclusion that (1) the public good will be served by the development, and (2) the business-zoned area will not be adversely affected. These facts also support the conclusion that (3) the uses permitted in the lots will not be noxious to multifamily use, and (4) the proposal will not exceed a density of six units per acre.
The Board first reasonably concluded that the development will serve the public good by providing market-affordable, modern housing. See §240-51(A)(5); Wendys, 454 Mass. at 381. I must defer to the Boards decision when it is supported by a rational view of the facts. See Shirley, 461 Mass. at 475; Wendys, 454 Mass. at 383. The parties agree that there is currently a shortage of clean, relatively affordable housing in Falmouth. Allowing this development to be constructed will increase the supply of affordable rental units in the area. The parties also agree that the area around the locus is used primarily during the summer, and that the area is desolate in the winter months. Given the reduced rent expected to be charged for the new apartment units and the year-round rental they will promote, this development likely will bring new families to the area, who will remain in Falmouth year-round. This will promote the public good, and the Boards determination on this score has factual support.
The Board also reasonably concluded that the new residential units will not adversely affect the business-zoned area around the locus. See §240-51(A)(5). When determining whether a development will adversely affect an area, courts have considered factors such as traffic flow, safety, public utilities, town services, demographics, [and] the environment. . . Advanced Dev. Concepts, Inc. v. Blackstone, 33 Mass. App. Ct. 228 , 233 (1992).
The facts that I have found in this case support the conclusion that the business-zoned area surrounding the locus will not be adversely affected. See §240-51(A)(5). Jennifer Conley, a traffic engineer, testified in a manner I find credible that this development will generate incredibly light traffic flow in the area. Ms. Conley also testified that the developments parking lot and driveway would create no safety risks whatsoever, and I adopt her view of the evidence. Thomas Bunker, a professional land surveyor and site planner, testified persuasively that this development would have full access to public utilities, including electricity, town water, and garbage disposal. Ms. Leslie Fields, a coastal geologist, testified that the development would have no negative effect on the surrounding environment, and, as fact finder, I adopt her position on this. The area surrounding the locus is occupied primarily by office buildings and small businesses. Relying on and accepting this expert testimony, I conclude that the development will have no significant effect on the neighborhood business-zoned area in terms of traffic, safety, public utilities, town services, or the environment. These facts, which I accept and find to be so, support the conclusion reached by the Board that the business-zoned area surrounding the locus will not be adversely affected.
Third, I find as a factual matter that the Board reasonably concluded that the uses permitted in the business-zoned area surrounding the locus will not be noxious to multi-family use. See §240-51(A)(5). Again, I am bound to defer to the Boards decision when it is supported by a rational view of the facts. Right nearby, Lot 8 contains four doctors offices, a pharmacy, and a medical supplies store. The surrounding area contains small businesses, including a hair salon, a convenience store, and a hardware store. On the other side of County Road from the locus, there is a public park and a baseball field and other athletic facilities. None of these uses pose any real risk of being dangerous or disruptive. In fact, the mix of uses surrounding the locus appears complementary to the proposed multi-family residential use. I find there is ample factual support, given the composition of the neighboring uses allowed and currently in place, for the Boards determination that they will not be noxious; rather, they will be well-suited to exist harmoniously in proximity to the proposed multi-family use.
Finally, the proposed development will not exceed a density of six units per acre, as mandated by §240-51(A)(5). When the Board approved this permit, it required that Lots 8 and 9 be merged for the purposes of calculating density. [Note 6] The merged lot will contain the five existing commercial units, as well as the ten new apartment units. Under the bylaws density requirement, the new 2.61 acre lot could contain a maximum of fifteen units. In keeping with the rulings the court made on summary judgment, I conclude now, as I did then, that the Boards decision to allow the merger, and to find satisfied the density requirement, was authorized by the bylaw, properly interpreted. The Boards determination in this regard was not arbitrary, capricious, or legally untenable.
E. The Boards Determination of Compliance With §240-216
The Board, paying attention to the factors it was obliged to consider, reasonably determined that the adverse effects of the proposed development will not overbalance the projects benefits to Falmouth, and to the neighborhood surrounding the locus, in view of the particular characteristics of the site. See §240-216. I conclude, after evaluating all the evidence at trial and making my own findings, that this determination is more than sufficiently borne out by the facts.
At trial, Johnson Homes presented extensive evidence, which I credit, that the project to which the Board granted a permit, with its ten new residential units, passes muster under §240- 216, including satisfying the ten enumerated factors of that section. I credit the evidence showing that the site is adequate and suitable and that the development will not cause any significant impact to traffic flow or safety. There is uncontroverted testimony that the development will increase the supply of market-affordable housing in Falmouth. The weight of the evidence supports the conclusion that the development will be in harmony with the general purpose and intent of §240-216.
I find first that the Board reasonably concluded that the site will be adequate for the proposed residential units. §240-216(A). Under §240-108 of the Falmouth bylaw, a ten-unit site must have twenty parking spaces, including one handicap-accessible space. This site will contain twenty-two spaces, including two handicap-accessible spaces. I agree generally with and adopt the testimony offered by Jennifer Conley, the traffic engineer; she testified credibly that this parking lot would be well lit and safely accessible. I also find that the evidence of Thomas Bunker, a civil engineer, was believable and worthy of adoption. He testified that the water runoff from the new units will flow into catch basins on Lot 8, and will therefore pose no threat to abutting properties. He further testified that the ten units will require five new septic tanks and related facilities, which will be safely installed in the northeast corner of Lot 9. I come to the conclusion, based on the evidence, that the proposed development will have sufficient and safe parking, lighting, water drainage, and sewage disposal. I concur with the Boards determination that this site is adequate for ten new residential units. The facts I find show these conclusions by the Board to be rational, and supported by those facts.
Next, I find the Board reasonably concluded that the site is suitable for the proposed development, §240-216(B). The new apartments will be located in an existing mixed-use neighborhood that includes businesses and other residences. Directly across the road, there is a public library, a playground, and a basketball court. Local schools and transportation are also nearby. It rationally can be said that the area surrounding the locus is well equipped for, and will provide a suitable setting for, the ten new residential units. The Boards determination that this site is suitable for development is rational, and supported by the facts.
Third, the Board reasonably determined that the development will have no significant effect on traffic flow and safety. See §240-216(C). I accept generally the testimony on this given by engineer Jennifer Conley. I conclude, based on her evidence, that the new residences will generate only five to six trips an hour, during peak hours. Ms. Conley testified that an office building constructed in the same place would generate ten to twelve trips per hour. Ms. Conley stated that this incredibly light traffic will have no adverse effect on traffic flow in the area. On the issue of traffic and parking safety, the Plaintiffs own witness, Robert Daylor, agreed with Ms. Conley that the development appears to be safe. The entrance to the parking lot from County Road will have appropriate safety features, including a crosswalk, a stop sign, and a sidewalk separated from traffic. When a vehicle is exiting the property, the driver will be able to see 300 feet on one side, and 400 feet on the other. I accept what Ms. Conley testified: that this puts this project on this site well above the industry standard of 200 feet. Based on this testimony, which I credit, I conclude that parking and driving on and near the property will be safe, and that the Boards determination that the development will have no significant effect on traffic flow and safety was warranted by the facts I find.
Fourth, the Board reasonably concluded that the new apartments will not have a significant impact on the neighborhoods visual character. See §240-216(D). The apartments will be at least fifty feet from the Collins property line. Johnson Homes also has agreed that it will plant trees between Lot 9 and the Collins land to provide visual separation, and I rely on this undertaking in concluding that the Plaintiffs neighboring property will suffer no real adverse visual impact. Of course, even with these measures, the new development inevitably will affect the view from the Collins farm by removing the vegetation and fill that is currently on Lot 9. property. The highest point of the new development will be thirty-four feet tall and will be at least somewhat visible from the Collins property. I find, however, relying on the evidence, that this visual change will not visit a substantially adverse impact on the neighborhoods visual character. The Board was not obliged to conclude that there will be no visibility whatsoever of the new construction from the Plaintiffs property. The local zoning law only required the Board to consider the impact on the neighborhoods visual character, including views and vistas. The balance of what is an acceptable impact of that sort is a matter committed to the Boards judgment and discretion, which I am obligated to respect unless deeply lacking in factual support. That is not the case here.
One property owners interest in keeping views entirely unimpaired cannot, without explicit support in the governing local law, allow that owner to veto a development nearby. In the case of the Falmouth zoning law, the standard the Board is to consider relates not to impact on one particular neighbor, but rather is whether the development will have a significant impact on the neighborhoods visual character. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994). In Kenner, the court interpreted a zoning bylaw that stated, . . .when deciding whether to grant a special permit, a Board shall consider. . .the impact of scale, siting and mass on neighborhood visual character, including views, vistas and streetscapes. Id. The court concluded that, this language does not suggest that the zoning bylaw was designed simply to protect individual homeowners views of the ocean from their own property. Rather, the bylaw addresses the visual impact of a proposed structure, or of changes to an existing structure, on the visual character of the neighborhood as a whole. Id.
Although the instant development very well may affect the view from the Collins house, I find, agreeing with the Board, that the new units will not produce any significant impact on the neighborhoods visual character as a whole. As Plaintiffs own witness agreed, many of the existing buildings in the area do not have a consistent historical or architectural style. Indeed, there is a historic district in Falmouth, but this portion of County Road is not within that district. I find the Board could reasonably have concluded that projects five new colonial-style buildings will not be significantly out of place in this mixed-use neighborhood which enjoys architectural diversity already. Furthermore, the new apartments will be located mostly behind the already existing commercial buildings on Lot 8, and behind a row of trees that will be planted between the two lots. The units will have little to no impact on the view from County Road, or any other public way. Therefore, the facts that I have found in this case support the Boards conclusion that the new apartments will not yield a significant impact the neighborhoods visual character.
I next find that the Board reasonably concluded that the sewage disposal system and water source for the new development will be adequate. See §240-216(E). I adopt generally the evidence offered by Mr. Jeffrey Ryther, a registered civil engineer and soil evaluator, when he testified that the developments septic system will be adequate, safe, functional, compliant with law, and substantially similar to other systems routinely approved by the Board of Health. With a design flow of 2,200 gallons per day, the system meets the industry standard of 110 gallon per day for all 20 bedrooms. There is no doubt that, as Mr. Bunker further testified, the new apartments will be serviced by town water and will meet all requirements of the Town of Falmouth Water Department. Plaintiffs did not offer any contradictory evidence on these two issues. The facts as I have found them support the Boards determination that the sewage disposal system and water source of the new development will be adequate.
Next, I find that, as to the factors to be considered under §240-216(E), the Board reasonably concluded that the drainage of the site will be adequate, and that it will pose no danger to the surrounding area. Storm water from Lot 9 will flow towards catch basins on Lot 8. This runoff, along with the septic systems leaching pits, will add phosphorous and nitrogen to the sites groundwater. [Note 7] At trial, Plaintiffs contended that this groundwater would flow into Cedar Lake and Megansett Harbor, causing environmental damage from eutrophication. I do not agree.
The evidence at trial that I credit indicates that stormwater and wastewater drainage from the Johnson Homes development will have little to no effect on Cedar Lake and Megansett Harbor. I follow and agree with the conclusions of Leslie Fields, a coastal geologist, on this point. She consulted a U.S. Geology Survey Map that showed the contour lines of the area surrounding the locus. Based on these contour lines, Ms. Fields concluded that the groundwater from Lot 9 would not flow into Cedar Lake. Instead, the groundwater will avoid the lake and flow into Megansett Harbor, a body of water some distance away which is too large to be affected in any material manner by such a relatively small amount of drainage-borne nutrients. Robert Daylor, the Plaintiffs own witness, agreed on cross-examination that the methodology of Ms. Fields was sound. He also did not appear to disagree with the conclusion of Ms. Fields that groundwater from Lot 9 will avoid Cedar Lake and discharge at some distance into Megansett Harbor. Based on this evidence, I find it reasonable and probable that the stormwater and wastewater drainage from locus will have no material effect on Cedar Lake and Megansett Harbor. The evidence I credit supports the Boards determination that the developments drainage system will be adequate.
Applying §240-216(F), the Board determined that the new apartments will have adequate access to utilities and public services. The facts as I find them support this conclusion. Electricity and natural gas are available from existing facilities on County Road. Trash will be collected from the apartments using an on-site dumpster. The development will comply with all current building codes, electrical codes, and plumbing codes.
The Board also appropriately considered the planning boards written decision to approve the site plan, §240-216(H), and correctly determined that Johnson Homes has complied with all applicable sections of the Falmouth zoning bylaw, see §240-216(I). The Falmouth Planning Board voted to approve the application of Johnson Homes on January 25, 2012, and there is nothing about the Planning Boards action that ought have raised concern for the Board in conducting its special permit review. At 113,859 square feet, the parcel on which the development will be placed meets the lot dimension minimum requirement of 80,000 square feet. See §240-67, and the courts rulings on summary judgment, discussed infra. The development also meets the parking requirements of §240-108: the site plan shows 22 parking spaces of appropriate size, including two accessible spaces. These spaces are safely accessible from County Road and pose no danger to pedestrians. I find that the Board adequately considered the Planning Boards written decision to approve the special permit, appropriately concluded the proposed development substantially meets the site design requirements of §240-111, and that Johnson Homes proposed development will comply with the applicable sections of the Falmouth zoning bylaw.
Finally, I find that the Board correctly determined that the new units will have no [negative] impact on the supply of affordable housing in Falmouth. §240-216(G). Although the ten new apartments will be rented at a market affordable rate, and will provide an advantage generally in serving the needs of those less able to afford rental housing, the apartments will not be affordable as set forth in the Falmouth bylaw. As such, the Board was not required to determine whether development will meet affordable housing standards, a factor set out in §240-216(J) which I conclude was not in play when the Board reviewed this project.
In summary, the Board sufficiently considered all ten factors listed in §240-216 and reasonably concluded that the adverse effects of the proposed development will not outweigh its benefits to North Falmouth. See §240-216. The facts I have found in this case support the conclusion that the development will be in harmony with the general purpose and intent of the Falmouth zoning bylaw. Nothing in the record, on the facts I have found, would indicate that the Boards determination was arbitrary, capricious, or legally untenable.
F. The Falmouth Local Comprehensive Plan
Throughout this case, Plaintiffs argued that the Boards decision to approve the special permit was unreasonable and legally untenable because the Board did not make written findings with respect to the Falmouth Local Comprehensive Plan (Local Plan), and because the Johnson Homes development is inconsistent with the Local Plan. I do not agree.
The Falmouth Boards failure to make written findings regarding the Local Plan does not make the Boards decision unreasonable or legally untenable. The Falmouth zoning bylaw does not require the Board to make written findings with respect to the Local Plan, and Plaintiffs have provided the court with no statute, appellate decision, or other authority that requires such findings. The zoning bylaw only once mentions the Local Plan. Section 240-1 states that consideration of the recommendations of the [Local Plan]. . . is one of the bylaws many individual purposes. The bylaw requires the Board to make a written finding that the granting of the permit will be in harmony with the general purpose and intent. . . of the zoning bylaw. §240- 216 (emphasis supplied). But the bylaw does not state that the Board must make written findings with respect to each and every specific purpose laid out in §240-216. [Note 8] The Boards failure to make written findings regarding the Local Plan does not make its Decision arbitrary, unreasonable or legally untenable.
Furthermore, the facts that I have found in this case support a conclusion that the Johnson Homes development is, in fact, in harmony to the Local Plan. The Local Plan does not describe the area surrounding Lot 9 as historic, and does not place any limits on future development of the area. The Local Plan identifies seven historic districts in Falmouth, none of which include Lots 8 and 9. Although the Local Plan states that one of its goals is to preserve and maintain the communitys semi-rural character, this language does not automatically proscribe all multi-family developments. On the evidence I adopt, I find that these ten new apartments will not substantially affect the communitys semi-rural character. In addition, a different section of the Local Plan specifically encourages new affordable housing. The Local Plan states that, housing is a critical need in town, for the younger workforce and the elderly, at, or below, the median income. The Johnson Homes development under review in this case makes a genuine contribution toward solving this problem. The Local Plan is not a code of law, and it evinces the Towns intentions to address a variety of goals, not all of which align entirely. In serving a felt need for affordable housing in the Town, the project helps Falmouth address one of the goals laid out in the Local Plan. The Boards Decision is consistent with, not contrary to, the Local Plan.
Johnson Homes proposed development meets all the requirements for a special permit under §240-51(A)(5) and §240-216. The Decision of the Board to grant the special permit was reasonable, well-founded on the facts as I find them to be after trial, and does not suffer from any legal infirmity. The judgment that I direct the Recorder to enter in this case will declare proper the 2007 rezoning, and uphold the challenged Decision of the Board.
[Note 1] In October, 2012, the court published in the Falmouth Enterprise notice of the pendency of the Plaintiffs claim under G.L. c. 240, s. 14A. No new parties sought to intervene.
[Note 2] See infra Part IV.
[Note 3] The Plaintiffs challenged the validity of this merger in their motion for summary judgment. See infra Part IV.
[Note 4] These units will not be affordable housing for the purposes of G. L. c. 40B, but will purportedly be less expensive to rent than the majority of housing that currently is available in Falmouth.
[Note 5] The courts full ruling on the motion for summary judgment, as reflected in the October 3, 2013 entry on the courts docket for this case, reads as follows:
Hearing Held on Motion for Summary Judgment and Related Motions to Strike. Attorneys Markoff and Hurley Appeared and Argued. Counsel for Municipal Defendants, Who Did Not Participate in Briefing, Elected Not To Appear. Following Argument on All Motions: (1) Court DENIED All Motions to Strike. The Bunker Affidavit Is Based on Enough Material Properly In the Summary Judgment Record to Allow Mr. Bunker to Draw Meaningful Conclusions Therefrom. The Affidavit of Daylor Does Not Unfairly Prejudice or Surprise Defendants, Who Should Have Anticipated the Subject of Mr. Daylor's Affidavit-De Novo Review of Facts Supporting Board's Decision Granting Special Permit-Would Be In Play Despite Plaintiffs' Decision Not to File Cross Motion. Defendants Would Have Filed for Summary Judgment as to Remaining Issues in Any Event Had Daylor Affidavit Not Been Filed, and Defendants Do Not Suggest They Would Have Put in Opposing Affidavit as to These Issues Had Daylor Affidavit Been Served Sooner. The Johnson Affidavit Was an Appropriate Supplement to the Record, Responsive to Arguments Advanced in the Plaintiffs' Opposition. (2) Pursuant to Mass. R. Civ. P. 56, Giving Every Reasonable Inference to the Party Opposing Summary Judgment, Based on the Summary Judgment Record, the Court GRANTED IN PART and DENIED IN PART the Motion for Summary Judgment, Ruling: (A) Plaintiffs Possess Requisite Standing to Pursue Appeal of Special Permit Pursuant to G.L. c. 40A, § 17. In Making this Determination, Court must Consider Whether Requirement of Harm Is Satisfied by Owners of Undeveloped Land with No Present Intention to Use the Property Other than Passively. Here, Plaintiffs--Who Benefit from the Statutory Presumption of Aggrievement--Allege a Diminution in Value of Their Holding as a Result of the Proposed Development. To Lay a Foundation for this Diminution, Plaintiffs Offer a Subdivision Plan of Their Land, Despite Admitting No Current Intent to Go Forward on That, or Any, Subdivision or Development Plan. This Is Not, However, a Case Where the Land Has Been Committed to Passive Use by Conservation Restriction or Other Binding Covenant. Despite a Precatory Commitment Not to Develop Their Land, Plaintiffs Remain Free to Change Their Minds, and Therefore Have a Cognizable Legal Interest in the Value of Their Land, Should it Be Put to a Different Use. Defendants' Argument, That a Lack of Immediate Development Plans Disqualifies Plaintiffs from Being Aggrieved, Is Unpersuasive in Light of the Short Twenty-day Period Within Which to Challenge a Zoning Decision. Such a Rule Would Require Losing, for All Time, a Right to Remedy a Perceived Unlawful Zoning Permit, Because No Development Plans Were Extant Within a Narrow Twenty-day Window. The Increased Density of Defendants' Land Authorized by Challenged Permit May, Standing Alone, Establish Aggrievement for Plaintiffs, but in Any Event Does So Given the Plaintiffs' Uncontradicted Evidence of Quantified and Material Diminution in the Value of Plaintiffs' Land Resulting from the Permitted Project. Plaintiffs Have Standing Because They Have Demonstrated a Plausible Claim That the Defendants' Project Will Harm the Value of Their Land. (B) Plaintiffs Also Possess Requisite Standing to Challenge 2007 Map Amendment of Zoning Bylaw Pursuant to G.L. c. 240, § 14A. "A landowner may bring an action under § 14A for determination of the validity of a zoning enactment regulating land owned by another, if the use of such other land pursuant to the zoning amendment "directly and adversely affects the permitted use of his land." Hanna v. Town of Framingham, 60 Mass. App. Ct. 420 , 422 (2004). Plaintiffs Safely Meet This Less Demanding Standard. (C) Nothing In the Record Supports Going to Trial on the Challenge to the 2007 Rezoning by the Town. Every presumption is to be made in favor of the validity of a zoning amendment. Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104 , 108 (2003). To Prevail on a Claim of Illegal Spot Zoning, "the challenger must prove by a preponderance of the evidence that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare[,]" and "the party challenging the amendment has the burden of proving facts which compel a conclusion that the question whether the amendment falls within the enabling statute is not even fairly debatable[.]" Id. Here, Plaintiffs Have Made No Allegation Supported in the Record Which, Even If Proved at Trial, Would Rise to this High Standard. The Subject Parcel, Which Was Rezoned to Be Added into the Business District, Abuts That District; Attention Was Paid to Buffering a Portion of That Parcel from the Residential District; the Surrounding Land Is Not Uniformly Residential; and the Rezoned Parcel Shares Frontage on an Existing Business Corridor. The Cases Teach That Spot Zoning Is Not to Be Established Based on the Fact That Rezoning Was Instigated by a Private Owner Whose Land Is Primarily or Even Solely Benefited by the Rezoning. Plaintiffs Have Failed to Advance Evidence Which If Proved at Trial Would Carry Their Burden of Showing Impermissible Spot Zoning. On this Record, the Court Cannot Reach the Conclusion That There Was No Possible Public Purpose to the Zoning Amendment. (D) The Board's Interpretation of the Density Regulations in Section 240-51 of the Falmouth Zoning Bylaw Was Not Arbitrary, Capricious, or Legally Untenable. It Is Undisputed That Density Regulations Would Allow Fifteen Residential Units; the Bylaw Is Silent as to How, If at All, Commercial Units Affect the Calculation of the Maximum Available Residential Units. The Board, in Limiting Development to Fifteen Total Units (Five Commercial and Ten Residential) Does Not Do Any Violence to the Bylaw, and There Was No Evidence of Any Contrary Local Interpretation in the Town. Plaintiffs' Alternative Interpretation Requires the Court to Conclude That the Presence of Even a Single Non-residential Unit on a Parcel, No Matter How Large and Otherwise Unimproved, Would Prevent the Board from Ever Issuing Special Permit to Authorize Any Multi-family Residential Unit(s). This Interpretation Would Fly in the Face of the Bylaws's Lack of Definition or Qualification of the Term "Unit," and the Bylaw's Failure to Regulate Against Concurrent Residential and Non-residential Use of a Parcel. On this Record, as Matter of Law, There Is No Basis on Which Plaintiffs Could Prevail on Their Burden to Show the Board's Interpretation to Be Entitled to Judicial Correction. The Board's Interpretation Was Not Arbitrary, Capricious, or Contrary to Law. (E) Plaintiffs' Challenge to the Decision Based on the Fact That the Permit Issued for Two Lots in Separate Ownership (To Be Used for a Project with Density Computed as to Both Lots Combined) Fails on this Record as Matter of Law. Court Accepts as Adequate That the Lawful and Effective Combination of Lot 8 and Lot 9 Is a Condition Imposed by the Board as a Prerequisite to Obtaining a Building Permit. The Johnson Affidavit Shows the Feasibility of Accomplishing That Condition. There Is in this Record No Opposing Evidence Which Tends to Show Why this Approach Would Not Be Legally Sufficient to Refute Plaintiffs' Challenge on this Point. (F) The Remaining Issues Require the Court to Undertake De Novo Review of the Facts Underlying the Board's Decision to Grant a Discretionary Special Permit and Require the Taking of Evidence at Trial To Decide If the Board's Determination, That the Remaining Conditions of the Bylaw for Issuance of the Special Permit Were Satisfied, Has a Sufficient Factual Basis; Summary Judgment Is DENIED as to these Issues. Counsel to Confer, and by October 15, 2013, to File a Joint Written Report Detailing Their Respective Positions on Readiness for Trial, and Requesting the Court to Schedule a Pretrial Conference.
[Note 6] The merger of these two properties was one condition required by the Board when they granted the special permit. The legitimacy of this merger, and the computation of density accordingly, were among the main issues decided at summary judgment. See supra, Part IV.
[Note 7] Some areas of Cape Cod must meet nitrogen reduction standards. Locus is not within one of these areas.
[Note 8] Section 240-1 contains a dozen other purposes for the bylaw. It would be unreasonable to require the Board to make a written finding with respect to each and every individual purpose of the bylaw. This is precisely why §240-216 requires the Board to only make a written finding with respect to the bylaws general intent.