Because of the towns close proximity to Logan Airport, many residents of the Town of Winthrop work or have worked in the airline industry and rent rooms in their houses to airline personnel for overnight stays in between flights. Concerned about the proliferation of these unlicensed crash pads, the Town in 2011 amended its zoning bylaw to allow homeowners to seek a special permit to operate a bed and breakfast. The special permit would be granted after findings and with conditions, including limits on the number of bedrooms rented, the keeping of a guest register, and the provision of parking with a parking management plan. Joan Roth, herself a retired flight attendant, had operated a crash pad at her house, to the dismay of her neighbors in her residential neighborhood. She decided to take advantage of the new bylaw provision, and applied for a special permit to operate a bed and breakfast at her house. The Winthrop Zoning Board of Appeals (ZBA) denied her application, and she appealed to the Land Court. She filed a second application, which was also denied and appealed to the Land Court. While the two cases were pending, an injunction was entered barring Roth from taking paying guests, and the ZBA brought a contempt complaint alleging that she was violating the injunction.
Both cases and the contempt complaint were tried. For the reasons set forth below, I now find that the first application for a bed and breakfast special permit was properly denied, but that the ZBAs denial of Roths second application was unreasonable, arbitrary and capricious, and not supported by the evidence. I also find that the evidence fails to establish that she violated the preliminary injunction. The denial of the first application will be affirmed, and the denial of the second application annulled and the matter remanded to the ZBA. Judgment shall also enter dismissing the complaint for civil contempt.
On November 7, 2011, the plaintiff, Joan Roth (Roth), filed her first application with the ZBA seeking a special permit to operate an accessory bed and breakfast (B&B) out of her residence (First Application). After the ZBA denied her application, Roth filed a complaint with this Court on April 23, 2012, appealing the denial pursuant to G.L. c. 40A, § 17, an action docketed as case no. 462887. At the request of the parties, an order of remand was issued on January 3, 2013. On August 1, 2013, the ZBA filed Defendants Answer and Counterclaim, Plaintiff-in-Counterclaims Motion for Preliminary Injunction, Plaintiff-in-Counterclaims Motion for a Short Order of Notice, and the Affidavit of Peter Gill. A hearing on the Motion for Preliminary Injunction was held on August 8, 2013. This Court granted the Motion for Preliminary Injunction, enjoining Roth and ordering her to immediately cease and desist any commercial use of her property until otherwise permitted to do so in writing by the Town, agreement of the parties, or by this Court. In addition, by agreement of the parties, the order of remand issued on January 3, 2013, was withdrawn.
On December 5, 2013, Roth filed a new special permit application for the operation of her B&B instead of a modification of the remanded application (Second Application). The ZBA denied the Second Application, and Roth filed the complaint in this action on February 18, 2014, docketed as case no. 481663. On March 24, 2014, a case management conference was held at which time the Court ordered that case no. 462887 and 481663 be treated as companion cases.
The ZBA filed Defendants Motion for Summary Judgment, Memorandum of Law, and Rule 4 Statement of Undisputed Material Facts on May 2, 2014, seeking to dismiss this action on the sole grounds that the Second Application was a repetitive petition barred by § 16. Roth filed Plaintiffs Opposition to Motion for Summary Judgment, Memorandum of Law, Rule 4 Statement of Undisputed Material Facts, and Affidavit of Joan Roth on June 4, 2014. The Court heard argument on the summary judgment motion on June 20, 2014, and took the motion under advisement. On July 10, 2014, the Court denied Defendants Motion for Summary Judgment. The ZBA filed Defendants Complaint for Contempt on September 10, 2014, alleging that Roth continued to operate her illegal B&B in violation of the August 8, 2013 Court order. On September 19, 2014, a hearing on the contempt complaint was held and the Court decided that the companion cases and the civil contempt complaint would all be tried together.
On March 26, 2015, a view was taken. A trial was held on both the contempt complaint and the underlying merits of the cases on March 26 and 27, 2015. The court heard testimony from Joan J. Roth, Sarah Roth-Oosten, Susan Trask, Maureen Miller, Richard Dimes, Steven Buonopane, Martin Klim, Kristen M. Reynolds, Peter T. Gill, Robert F. Porter, and Richard D. Honan. Exhibits 1-13 were marked. Roths Post-Trial Memorandum was filed on June 24, 2015. On June 29, 2015, the ZBA filed Defendants Requested Findings of Fact and Rulings of Law. Closing arguments were heard on June 29, 2015, and these cases were taken under advisement.
For the reasons set forth below, I affirm the ZBAs denial of Roths First Application, annul the denial of Roths Second Application, and remand the Second Application to the ZBA for further proceedings consistent with this Decision.
FINDINGS OF FACT
Based on the facts stipulated by the parties, the view, the documentary and testimonial evidence at trial, and my assessment as the trier of fact of the credibility, I make factual findings as follows:
1. Roth owns property at 100 Sargent Street, Winthrop, MA (the Property), by a deed recorded with the Suffolk County Registry of Deeds (registry) on May 5, 1997 in Book 21381, Page 145. Roth lives there with her daughter, Sarah Roth-Oosten, her son-in-law, and her two grandchildren. Trial Exhibit (Exh.) 1 ¶ 1, 2. Trial Transcript (Tr.) 1:79.
2. The Property is a .26 acre parcel (11,326 square feet) improved by a single-family dwelling containing 9,052 square feet of gross floor area (GFA) and 5,278 square feet of living area. The dwelling contains seven bedrooms, five and half bathrooms, an indoor pool, and a full basement. Only three or four bedrooms are currently occupied by the Roth family. The Property is fully equipped with water/sewer and other utilities. Roth is not contemplating any changes to the number of bedrooms or bathrooms, or use of the utilities. There is a garage and currently two driveways at the Property. Tr. 1:23, 28-29, 84; Exhs. 1 ¶ 2-3, 10; View.
3. The indoor pool was installed by Roths predecessor-in-interest, Eric Jackson, a wounded Vietnam War veteran. Jackson obtained a variance from the Town of Winthrop (the Town) to build the indoor pool primarily for therapy purposes. [Note 1] Tr. 1:50, 104-105, 145.
4. Sargent Street is a one-way street, with on-street parking only available on the side of the road opposite from the Property. The Property is located on a corner lot at the end of Sargent Street where it intersects with Johnson Avenue, a more trafficked two-way road. Traffic exits Sargent Street and cars come out onto Johnson Avenue (see attached Exhibit A). Tr. 1:121, 138, 143, 155, 160-163, 186, 189, 193; Exh. 10; View.
5. The Property is located in the Towns Residential A (RA) Zoning District. The surrounding neighborhood is residential with the nearest commercial district, Winthrop Center, approximately a half mile away. Tr. 1:13-14, 102-103, 133, 135, 143, 184, 212; Exh. 1 ¶ 4; View.
6. The Property is walking distance to the beach, public bus transportation, and the ferry that makes daily trips back and forth from Winthrop to Boston. Tr. 1:98-100, 103; Exh. 4; View.
7. As a former flight attendant, Roth wanted to offer airport personnel a convenient place to stay near the airport when they were in the city for short periods of time. Shortly after she bought the Property in 1997, Roth started having airport personnel stay at the Property as overnight guests. These guests came to the Property in part through advertisements for rental rooms placed at Bostons Logan International Airport during the late 1990s and early 2000s, as well as through direct contact with airline companies. Some guests paid to stay in a room, while others were friends that Roth did not charge. Tr. 1:14-17, 36-37, 42- 44, 106, 148, 214-216.
8. The Property was used as a rooming house from approximately 1997 to 2012, with various accounts of the actual number of people staying on the Property during this time. At one point, an inspector from the Board of Health found 27 beds and mattresses at the Property. Tr. 1:16, 36, 57, 148-149, 218.
9. The airport personnel often did not have their own vehicles and would typically arrive at the Property by taxi cabs. Due to their occupation, taxi cabs would sometimes arrive late at night, between 10:00PM and midnight, and leave early in the morning, around 7:00AM. During this time, the Property came to be known as an airport crash pad. Tr. 1:48, 107-110, 112-113, 148, 164, 190, 217-18.
10. In the early 2000s, the number of airport personnel staying at the Property began to decline as it transitioned into a typical rooming house/B&B. Many of the new guests were out-of-state residents that would sometimes arrive in their personal vehicles. These guests would either park in the driveway on the Property or on Sargent Street. Tr. 1:109, 153, 185-186, 218.
11. Around 2011, Roth placed an advertisement on the website airbnb.com, a worldwide site for people to list, find, and rent lodging. This advertisement remained active for about a year. Tr. 1:80-83.
12. There were many other unlicensed, illegal B&Bs or crash pads around Winthrop during this time. Peter Gill (Gill), President of the Winthrop Town Council, testified that after the Town received notice that eleven unlicensed B&Bs were operating in Winthrop, they decided to enact an ordinance regulating such uses. On June 21, 2011, the Town amended its Zoning Bylaw (the Bylaw) to include §17.49, a provision allowing accessory B&Bs in the RA zoning district by special permit. The Bylaw defines a B&B as an accessory home occupation use within a private residence, providing no more than four (4) guest bedrooms available for overnight guests at a fee that includes breakfast. Tr. 1:16, 66-69, 198-200; Exhs. 2, 4, 8, 9 at § 17.49.030.
13. The purpose of Section 17.49 is to:
(A) Provide opportunity for a more economic use for underutilized residences, and to preserve larger historically significant residences by allowing an appropriate accessory use compatible with the residential character of the neighborhood;
(B) Support tourism activity in Winthrop without unduly changing the residential character or inconveniencing residents;
(C) Discourage the current illegal and possibly unsanitary operation of unlicensed boarding homes or rooming houses by providing clear standards for the operation of bed and breakfast establishments as defined herein.
14. Section 17.49.040 outlines the conditions that must be met for an applicant to be eligible for a B&B Special Permit. The following are the relevant conditions:
(3) No more than four (4) bedrooms may be rented as guest rooms. No room shall be rented to any individual for a period of more than 14 consecutive days or for a cumulative period of more than 45 days in any calendar year. B&B shall maintain a guest register, subject to period inspection by Building Commissioner, to ensure compliance with this provision
(4) The gross floor area of the accessory B&B, calculated as the floor area of all guest bedrooms available at any time during a 12-month period, shall not occupy more than 45 per cent of the GFA of the residence.
(5) A Parking Management Plan shall be made a condition of the special permit and may not thereafter be substantially changed without a modification of the special permit following application and hearing in the same manner as for the original special permit application; tandem parking shall be allowed only pursuant to the determination by the Board of Appeals that sufficient management procedures are possible to reasonably assure that the need for additional parking created by the B&B shall not create a burden on adjacent public parking areas or illegal overnight parking on public streets.
(12) Signage shall conform to the requirements of Section 17.32 of Winthrop Zoning Code . . .
(13) The single-family residential exterior appearance of the B&B residence shall be maintained and any exterior alteration or addition to the residence following the grant of the special permit shall require a modification of the special permit . . .
15. The parking management plan requires the identification of off-street parking on the lot for the principal use, and one additional parking space for each guest room. The parking management plan also requires the applicant to describe in detail any provisions for tandem parking. Exh. 8 at §17.49.050.
16. The Property is eligible for an accessory use B&B special permit pursuant to §17.49 of the Bylaw. Exh. 1 ¶ 5.
17. On November 7, 2011, Roth filed a special permit application with the ZBA pursuant to §17.49 of the Bylaw, seeking a special permit to operate a B&B at the Property (First Application). The First Application states in part:
The owner will be renting a total of four bedrooms for no more than fourteen days, in accordance with the by-law. The home has 3 full bathrooms that will be designated for guests and a driveway for parking 4+ vehicles, totaling 8 parking spaces. . . .
Operating a B&B at the home would attract out-of-town visitors to the area and offer a lodging alternative to visitors of Winthrop and the Boston area. 100 Sargent Street is located within walking distance to public transportation and with the operation of the town ferry, guests would enjoy a short ride to and from Downtown Boston. In addition the town bus services runs along Pleasant Street and offers guests convenient transportation around Winthrop.
With public transportation and the ferry being so accessible, it is anticipated that guests will utilize these modes of transportation and there will be little or no added traffic or pedestrian safety concerns. Additionally, the property at 100 Sargent Street has a large driveway with space for 8 vehicles. The homeowner owns two vehicles, leaving 6 parking spaces available for 4 guest rooms.
The proposed use will not negatively affect the character or integrity of the RA district, as the homeowner will continue to live in the home, maintain the property, and will be the operator of the B&B. There will be no cooking facilities in guest rooms, guests will not occupy more than 45% of the gross floor area, and signage will be minimal and in accordance with Section 17.32 of the Winthrop Zoning Code.
Included in the First Application, Roth submitted a parking management plan showing eight available tandem parking spaces, six in the original driveway on Sargent Street (Sargent Street driveway) and two in the garage. Roth and her daughter each have a vehicle, leaving six spots open for guests. Roth also submitted a proposed signage plan and a floor plan of the Property with designations for four particular bedrooms reserved for guests. At trial, Roth testified that she would not be making any exterior changes to the Property and would maintain its appearance as a single-family dwelling in keeping with the character of the neighborhood. I credit her testimony. Exhs. 2, 8; Tr. 1:29-30.
18. Section 17.240.010 of the Bylaw outlines seven conditions that must be met for an applicant to be eligible for a Special Permit generally. The following are the relevant conditions in this case:
2) The requested use is essential or desirable to the public convenience or welfare.
3) The requested use will not create undue traffic congestion or unduly impair pedestrian safety.
6) The requested use will not impair the integrity or character of the district of adjoining districts nor be detrimental to the health, safety, convenience or welfare.
19. After holding a public hearing, the ZBA denied the First Application in written decision dated and filed with the Town Clerk on April 5, 2012 (First Decision). The ZBAs findings in the First Decision stated:
A) The Special Permit may not be granted if there is detriment to the public good.
B) The proposed use will create undue traffic safety in the area and will impair the character of adjoining districts and be more detrimental to the surrounding area.
C) The requested use could lend itself to be detrimental to the character of the neighborhood.
D) Increase in traffic and on street parking, because of lack of off street parking will result to increase the congestion to the surrounding streets and neighborhood.
20. In March 2012, Roth, with the help of her daughter, Ms. Roth-Oosten, decided to put up their own website advertising a B&B at the Property named Chateau sur Mer. The website lists a phone number for the B&B and with links to airbnb.com to book rooms. The website is still active today, but the airbnb.com links are no longer functional. [Note 2] Tr. 1:31-32, 80-83, 86, 93-94; Exh. 13.
21. On April 23, 2012, Roth filed an action with this court pursuant to G.L. c. 40A, § 17, appealing the First Decision, docketed as case no. 462887. Roth and the ZBA filed their Joint Motion for Remand to the ZBA on December 24, 2012, and the court issued an Order of Remand on January 3, 2013.
22. Roth added a second driveway in July 2013 to create additional parking for the B&B. The second driveway is up against the boundary line between the Property and Richard Dimes property, with a masonry cinder block wall along the border (Dimes driveway). Although a Winthrop building official told Roth that the Dimes driveway required a two foot non-asphalt buffer along the property line, the Town building inspector met with Roths contractor and signed off on the location of the driveway, after which Roth obtained a permit from the Public Works Department. Tr. 1:24, 55-56, 59-61, 113-118; View; see attached Exhibit A.
23. During June and July 2013, Gill testified that he received numerous complaints from neighbors about multiple vehicles with out-of-state license plates coming and going from the Property and parked on Sargent Street overnight. Neighbors took photographs of these cars both parked on Sargent Street and in the Sargent Street driveway. Neighbors also raised safety concerns regarding the ability of out-of-state guests to navigate the neighborhoods complicated maze of one-way streets and complained of drivers traveling in the wrong direction on Sargent Street. Tr. 1:139, 155-57, 160, 162-63, 170, 185-86, 191, 193.
24. On August 8, 2013, the Order of Remand was withdrawn at the request of the parties. The Court issued a preliminary injunction ordering Roth to immediately cease and desist any commercial use of the Property until otherwise permitted to do so. Exh. 6.
25. On December 5, 2013, Roth filed a second special permit application with the ZBA, seeking a special permit to operate a four-bedroom bed and breakfast at the Property, which was assigned the administrative number 18-2013 (Second Application). Roth filed more detailed blueprints of the Property, designating which rooms would be reserved for guests, as well as the number and size of beds and where they might be positioned in the rooms. Roth also submitted an updated parking management plan showing the availability of six parking spaces at the Property split between the Sargent Street driveway, the Dimes driveway, and the garage. Exhs. 4, 10, 11.
26. After holding a public hearing, the ZBA denied the Second Application in a written decision dated and filed with the Town Clerk on January 29, 2014 (Second Decision). The Second Decision states that [o]n January 9, 2014 the hearing resumed. Ms. Roth amended her original application to state that she would be renting a total of three bedrooms for no more than fourteen days, in accordance with Section 17.49 of the [bylaw]. The Second Decision also states: A stamped and signed Exhibit plot plan provided by Hancock Survey Associates, Inc. dated July 14, 2013 was submitted in accordance with Section 17.20 of the [bylaw], showing availability for 6 parking spaces on the premises. The ZBAs findings in the Second Decision are as follows:
1) The reduction in bedrooms from four on the first application to three on the current application was not a material change in the conditions upon which the first application was based; and
2) The Special Permit may not be granted due to the detriment of the public good; and
3) Increase in traffic and on street parking will result from the grant of the Special Permit, because of lack of off street parking will result to increase the congestion to the surrounding streets and neighborhoods; and
4) The grant of the Special Permit will increase or strain municipal or energy services since all utilities are in place and functioning and will require more municipal service than the prior use or the uses surrounding it; and
5) The proposed plan and the resulting uses does not satisfy the criteria for the issuance of a Special Permit under the Zoning Ordinance; and
6) The requested use would be detrimental to the character of the neighborhood.
27. On February 18, 2014, Roth filed a second complaint appealing the Second Decision of the ZBA, docketed as case no. 481663, which this Court decided will be treated as a companion case with the previously filed case no. 462887.
28. The ZBA filed Defendants Motion for Summary Judgment on May 2, 2014, seeking to dismiss this action on the sole grounds that the second application was a repetitive petition barred by G.L. c. 40A, § 16. ZBA argued that the change in the Second Application, reducing the number of bedrooms, was not a material change. The Second Decision also failed to reference Roths changed parking plan. On July 10, 2014, this Court denied Defendants Motion for Summary Judgment, stating that there was a genuine dispute of material fact as to whether ZBAs finding in the Second Decision that the change in the Second Application reducing the number of bedrooms was not a material change, and the Second Decisions lack of a reference to the changed parking plan, are correct and supported by the undisputed facts.
29. The ZBA filed Defendants Complaint for Contempt on September 10, 2014, alleging that Roth continued to operate the illegal B&B in violation of the August 8, 2013 preliminary injunction. At the trial, neighbors Martin Klim (Klim), Kristen Reynolds (Reynolds), and Robert Porter (Porter) testified that after the preliminary injunction was issued, they witnessed multiple vehicles, often bearing out-of-state license plates, coming and going from the Property, and sometimes parked overnight. Tr. 1:167-168, 186-188, 218-219.
30. Roth and her daughter, Ms. Roth-Oosten, testified that since the preliminary injunction was ordered, they have had no paying guests at the Property and the website advertisement did not bring in any business. Ms. Roth-Oosten explained that the presence of the out-of-town vehicles was from friends that were either visiting temporarily or keeping their cars in the driveway while on vacation. Based on the documentary evidence in the record and Ms. Roth-Oostens testimony, I find that Roth has not made commercial use of her property since this Court entered the preliminary injunction in August 2013. Tr. 1:31-32, 88-92.
31. There is at least one licensed accessory B&B, the Morris home, in a residential district in Winthrop. The Morris home is located on the fringe of the residential district, bordering the commercial district. Several neighbors testified that the location of this B&B was more appropriate than the location of the proposed B&B. Tr.1:15-16, 139-140, 199, 206.
32. Richard Dimes (Dimes), an abutter of Roth along her rear property line, resides at 105 Johnson Avenue. At trial, Dimes testified that he witnessed various disruptive activities when the Property was being used as an airport crash pad including people arriving late and leaving early by taxi cab and hanging out on Roths backyard patio late at night. He also stated that he has witnessed cars traveling the wrong direction down the one-way Sargent Street, but was not aware whether they were Roths guests. Dimes was a prior member and chairman of the Board and was on the Board when the B&B bylaw was passed. He testified that he was the sole vote against the provision (4-1) allowing B&Bs in residential districts by special permit. Dimes maintained that the neighborhood was highly residential with no aspect of commercial ties to it and a B&B would change this residential character. Tr. 1:107-113, 120-121, 123-128.
33. Steven Buonopane (Buonopane), a neighbor of Roth a few houses away, resides at 97 Johnson Avenue with his wife and three children. Buonopane testified that this was a family oriented neighborhood, not near any commercial activity. He asserted that there are no real attractions or restaurants within walking distance of the Property. Based on this, Buonopane stated that he felt a B&B would not mesh well with the character of the neighborhood. He found the location of the Morris home, another permitted B&B in Winthrop in a residential area, but closer to the commercial district, to be a more suitable location for this type of use. Buonopane also was fearful of not knowing who was coming and going from the proposed B&B and whether guests would be able to navigate the confusing streets in the neighborhood without causing undue congestion or posing traffic safety issues. Tr. 1:133-136, 139-140.
34. Martin Klim (Klim) lives at 91 Sargent Street, directly across the street from Roth. Klim testified that he began observing a large number of guests staying at the Property around 2000, primarily airport personnel arriving by taxi cab. He estimated that at some points there were as many as twenty people staying at the Property when it was used as an airport crash pad. Klim stated he was affected most when guests would park on Sargent Street and block access to his driveway. He said it was not unusual to see as many as six cars in Roths driveway and street parking was often overloaded. Klim stated he personally thinks that granting a special permit for the B&B would be a disaster. He believed that the B&B would not only impact parking, but also would have no added benefit to the community, other than to Roth, and was concerned over not knowing the guests. Tr. 1:143, 148-153, 155-162, 164, 167-168, 170-171.
35. Kristen M. Reynolds (Reynolds) lives at 104 Johnson Avenue, across the street from Dimes. At trial, Reynolds expressed concerns over transient people coming and going from the property because she has young children. She testified that in the past she has observed people staying at the Property socializing on Roths front porch late at night and would occasionally see taxi cabs waiting in front of Roths house for pickups or drop- offs. Reynolds did not believe that the proposed B&B would be desirable to the public convenience because of its transient nature and with no nearby entertainment, its location would not be convenient for tourists. Tr. 1:184, 186, 188, 190-194.
36. Robert F. Porter (Porter) lives at 135 Sargent Street, a few houses down from Klim. He observed many short term occupants when the Property was used as an airport crash pad. Porter testified that he opposed the issuance of a special permit for a B&B because he didnt enjoy strangers coming into the neighborhood and was uncomfortable with not knowing who was coming and going and at what time of night. Tr. 1:214-216, 220-221.
37. Richard Honan (Honan) lives at 92 Johnson Avenue, diagonally across the street from Dimes. Honan testified that while the use may be legally correct, the B&B would unduly change the residential character of the neighborhood. He was also uncomfortable having strangers constantly come and go from the neighborhood, remaining at the Property for only short periods of time. Honan stated that the only place in Winthrop suited for this use where it would not be burdening is in a commercial area. Tr. 2:8, 11-12, 18, 23.
38. Neighbors Susan Trask and Maureen Miller, who reside at 82 Sargent Street and 281 Court Road, respectively, both testified that they believed the proposed B&B would have a positive impact on the neighborhood. They noted that guests of the B&B would have access to nearby Winthrop Center and the ferry, which would help increase tourism and boost the local economy. Tr. 1:97-100.
An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require. G.L. c. 40A, § 17. Thus, under § 17, review of a local boards decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (noting "[i]n exercising its power of review, the court must find the facts de novo and give no weight to those the board has found"); Kitras v. Eccher, 21 LCR 565 , 570 (2013) (stating the court must review the factual record without deference to the board's findings). After finding the facts de novo, the courts function on appeal is to ascertain whether the reasons given by the [board] had a substantial basis in fact. Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local boards decision and may only overturn a decision if "based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.
In determining whether the decision is based on legally untenable ground, the court must establish whether it was decided on a standard, criterion or consideration not permitted by the applicable statutes or by-laws. In order to be upheld the board must act fairly and reasonably on the evidence presented to it, make a detailed record of its proceedings and set forth clearly the reasons or reason for its decision. MacGibbon, 356 Mass. at 638-639; Britton, 59 Mass. App. Ct. at 74-75 (to be upheld, the boards decision must be supported by a rational view of the facts), citing G.L. c. 40A, § 15. A zoning boards action must be responsive to plaintiffs petition and its decision must contain [a] definite statement of rational causes and motives, founded upon adequate findings. MacGibbon, 356 Mass. at 639. As a consequence, the boards discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the boards conclusion that the applicant failed to meet one or more of the relevant criteria in the governing statute or by-law. Britton, 59 Mass. App. Ct. at 74-75. If a zoning boards decision contains conclusions that do nothing more than repeat regulatory phrases and are unsupported by any facts in the record, the court is compelled to invalidate the decision. Wendys Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 386. If the ZBAs decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).
Roth twice applied for a special permit to operate a B&B at her existing home, in accordance with §17.49.040 of the Bylaw. Section 17.49.040 allows for a special permit for a B&B to operate as an accessory use within a private residence in the RA district. In the ZBAs Decisions denying both Roths First and Second Application, the ZBA held that the proposed B&B did not satisfy the criteria for the issuance of a special permit under the Bylaw. For reasons set forth more fully below, the ZBAs denial of the First Application is affirmed and the denial of the Second Application is annulled.
A. The First Decision
In the First Decision, the ZBA denied the First Application because they found the B&B would cause a) detriment to the public good, b) undue traffic safety, c) detriment to the character of the neighborhood, and d) increase traffic and congestion because of a lack of off street parking. I find that, based on the last of these reasons, this denial was not arbitrary or capricious.
The First Application proposed renting out four bedrooms to guests of the B&B. The parking plan submitted with the First Application shows eight available tandem parking spaces, two in the garage and six on the Sargent Street driveway. Since Roth and her daughter each have their own vehicle, six of the eight spots would be for guests. Each guest room would therefore have at least one parking space. Although the number of spaces satisfies the minimum required by the Bylaw, the arrangement of the parking spaces in the parking plan does not. While Roth was likely trying to provide as many off-street parking spaces for her guests as possible, in doing so she made the layout of the spots exceedingly tight. The plan consists of two side-by-side lanes with four cars each parked one behind another. Though tandem parking is not prohibited by the Bylaw, §17.49.040 (5) states that it will only be allowed if sufficient management procedures are possible to reasonably assure that the need for additional parking created by the B&B shall not create a burden on adjacent public parking areas or illegal overnight parking on public streets. Based on the close manner in which the cars are arranged in the first parking management plan, it would be extremely difficult to implement such management procedures. The number and close proximity of the cars leaves no room for cars parked in the garage or at the beginning of the driveway to back out, other than to have each car behind it reverse into Sargent Street, allowing the first cars to exit. Due to this difficulty, it stands to reason that guests of the B&B may opt to park on the street rather than undergo such an arduous procedure every time someone wishes to leave the Property. Because the parking plan in the First Application does not adequately address key issues of off-street parking and increased traffic, I find that the ZBAs denial of that application was reasonable.
B. The Second Decision
In the Second Decision, the ZBA denied the Second Application because they found that a) the reduction in bedrooms from four to three was not a material change in the conditions upon which the first application was based, and the grant of the special permit would be b) detrimental to the public good, c) increase traffic and congestion because of lack of off street parking, d) increase or strain municipal or energy services, e) the proposed plan and uses do not satisfy the criteria for issuance of a special permit, and f) the requested use would be detrimental to the character of the neighborhood. I find that these grounds for denial are not supported by the evidence and are unreasonable, arbitrary, and capricious.
In her Second Application, Roth reduced the number of bedrooms rented from four to three, as well as provided a blueprint showing the number and size of the beds in each guest room. Along with reducing the number of bedrooms, Roth revised her parking management plan to alleviate concerns related to parking and traffic. I disagree with the ZBA that the alterations made in the Second Application were not material changes in the conditions on which the First Application was based. Reducing the number of bedrooms and modifying the parking plan were substantial and material changes from the First Application, and the ZBAs finding otherwise was unreasonable.
The Second Applications parking plan decreased the number of parking spaces from eight to six, utilizing a second driveway, the Dimes driveway, to split the six spaces between them. Four of the six parking spaces are for guests, meaning at least one parking spot is available for each guest room, the minimum required under §17.49.050. Roths second parking management plan illustrates the approximate location of where cars would be parked using both driveways. In the Sargent Street driveway, three cars are parked in tandem on the left side of the driveway and one car is in the garage, leaving the entire right side of the driveway open. This additional space along the right side would allow cars to maneuver around one another likely without requiring each car to back out into Sargent Street as in the first parking plan. The Dimes driveway only contains two cars parked in tandem. Though tandem parking is still implemented in the second plan, the additional space and use of the second driveway makes it reasonable that sufficient management procedures could be implemented to insure no there was no burden on nearby public parking areas or illegal overnight parking on Sargent Street. Although Roth did not describe procedures to manage tandem parking in her Second Application, it was arbitrary and capricious for the ZBA to reject her parking plan on that basis without providing her an opportunity to submit management procedures. The ZBAs Second Decision did not reference or provide any support as to why the changes made in the second parking management plan were insufficient. Nor did the decision state why implementing tandem management procedures would not be a reasonable solution to address any remaining parking concerns. Roth is entitled to a remand of the Second Application so that she may file and the ZBA consider a parking management plan.
It was also unreasonable for the ZBA to state that the proposed B&B would cause undue traffic congestion and threaten pedestrian safety. To begin with, having an additional four vehicles in the neighborhood would have a de minimis impact on the traffic. Several neighbors testified that they were concerned that the out-of-town guests staying at the proposed B&B would get confused attempting to navigate the neighborhoods complicated maze of one-way streets. Sargent Street is one of those one-way streets, with traffic exiting Sargent Street directly in front of the Property onto Johnson Avenue. See attached Exhibit A. However, any out-of-town individuals driving through Winthrop could find the area confusing and pose a risk to the neighborhoods safety. Neighbors were additionally worried about guests unfamiliar with the area, driving up the wrong way on Sargent Street either mistakenly or to avoid having to go around to the start of the one-way street. This concern is speculative. Neighbors Dimes, Buonopane and Klim testified to occasionally seeing drivers travel the wrong way on Sargent Street, but could not say whether they were guests staying at the Property or if they were neighbors living a few houses up on Sargent Street who intentionally drive up the wrong direction for ease of access to their properties. From this evidence, there is no justification for linking traffic and safety issues in the neighborhood to the future guests of the B&B.
The ZBA also found that the proposed B&B would essentially take over the Property, straining municipal or energy services since all utilities are in place and functioning and will require more municipal service than the prior use or the uses surrounding it. I find no rationale in the record for this conclusion. At trial, no evidence was presented of any potential overload to any public water, drainage, sewer, or other municipal system from the operation of the B&B. The evidence is clear that the proposed B&B does not exceed the 45 percent GFA limitation. If four guest bedrooms are rented out, the floor area of all guest bedrooms combined is only 670 square feet. [Note 3] Using either the total GFA of 9,052 square feet or the living space GFA of 5,278 square feet, the floor area of the guest bedrooms is well under 45 percent. [Note 4] The floor area is even less if only three bedrooms are rented out. With such a minor increase in the usage of the floor area at the Property, it is unlikely that extra municipal or energy services would be necessary to operate the proposed B&B. Roth, who currently resides at the Property with her daughter, son-in-law, and two grandchildren, testified that all the utilities are currently functioning and she had no plans to add bathrooms, add any heating system, or switch her utilities. Only three of the seven bedrooms are currently used by Roth and her family. As the Property is already an underutilized home, it is unclear how the ZBA determined that renting out an additional three bedrooms would tax the utilities.
I find that the ZBAs finding that the proposed B&B would be detrimental to the public convenience or welfare and impair the integrity or character of the neighborhood to be unfounded, arbitrary, and capricious. The ZBA maintains that the B&B use would be detrimental because it allows a commercial facility to operate in a residential neighborhood. In doing so, the ZBA agrees with several of Roths neighbors, who testified that the B&B would be inappropriate in their family-oriented residential neighborhood when the closest commercial area, Winthrop Center, was about a half mile away. They believed that B&Bs would be more suitable in neighborhoods closer to the downtown commercial district, like the Morris home.
This belief and finding that a B&B is inappropriate in a residential neighborhood ignores the fact that, under the Bylaw, accessory B&Bs are allowed as-of-right in the RA district in Winthrop. It is unreasonable, arbitrary and capricious to allow a B&B use anywhere in a particular district by special permit, but then maintain that a special permit should only be issued for B&Bs within a fraction of that district. Furthermore, although there are no restaurants or convenient stores in direct proximity to the Property, it is close to the beach and only a short distance to the downtown area. The proposed B&B would be within walking distance to public transportation, in particular, the town bus service that runs along nearby Pleasant Street and offers guests convenient transportation around Winthrop. Access to the Winthrop ferry would also allow guests to enjoy a short ride to and from Downtown Boston, bringing additional tourism to the area. The Town enacted a bylaw to regulate B&Bs by allowing them in residential districts, but the ZBA chose to apply the Bylaw so that B&Bs are not allowed in residential districts. Such an application of the Bylaw is, almost by definition, unreasonable, arbitrary and capricious.
Concerns that the proposed B&B will bring strangers and transients into the neighborhood are also outside the scope of legitimate reasons to deny an application for a B&B special permit. B&Bs, by their very nature, cater to tourists and travelers coming from outside the area. It is unreasonable to rely on such concerns to justify denying a special permit when the Bylaw explicitly allows transients as guests of the B&Bs. The intent of the Bylaw was to regulate crash pads and unlicensed B&Bs. Section 17.49.040 requires all permitted B&Bs to maintain a guest register that is subject to periodic inspections by the Building Commissioner. With a more regulated B&B, neighbors can feel safer about the people staying in their neighborhood.
The ZBAs Second Decision seemed to focus on Roths previously illegally operated B&B, when it was used as an airport crash pad. Roths prior disregard of the Bylaw is not a sufficient justification to deny her current application. A key purpose behind the Bylaw is to discourage the illegal and unsanitary operation of unlicensed B&Bs and to provide clear standards for the operation of such establishments. Both the record and testimony at trial support the conclusion that Roth is merely attempting to comply with the provisions set forth in the new Bylaw. Roth intends to utilize her home to its fullest, while making a positive contribution to the Town. Roth, as well as neighbors Susan Trask and Maureen Miller, stated that having a B&B in this location will have a positive impact on the neighborhood by helping to boost the local economy and tourism in Winthrop, testimony that I credit. These are the main purposes behind the Bylaw.
Additionally, the proposed B&B architecturally fits with the other uses in the neighborhood. The Bylaw prohibits any alterations to the exterior of the Property after the issuance of a special permit. Any alterations or additions to the residence following the grant of the special permit requires a modification of the special permit application. Not only did Roth testify that she is not planning to make any changes to the exterior of her home, but she is expressly prohibited from altering the single-family home in a manner that will differ from the other single-family residences in the neighborhood. The Property will still primarily serve as a residence for Roth and her family, with the B&B only as an accessory use to the property. Therefore, the proposed B&B will not appear as a commercial property and the residential character of the neighborhood will be maintained.
Based on my findings of fact and interpretation of the zoning ordinance, and according appropriate deference to the interpretations of the ZBA, I find that the findings of the ZBA in the Second Decision were not supported by the evidence and did not constitute an appropriate basis for denying Roths Second Application for a B&B special permit. The changes in the Second Application were material and the ZBAs failure to consider those alterations in reaching its conclusion in the Second Decision was improper. The documentary and testimonial evidence at trial did not help to clarify the ZBAs rationale in its decision-making. A denial for reasons unsubstantiated by factual evidence is unreasonable, arbitrary and capricious. In denying the Second Application, the ZBA did just that. Accordingly, the ZBAs Second Decision is annulled. The Second Application will be remanded to the ZBA. Upon remand, Roth shall be permitted to submit a parking management plan. The ZBA shall consider the Second Application, with the proposed parking management plan, and issue a decision that is consistent with this Decision.
C. Civil Contempt
The ZBA argues that evidence presented at trial establishes Roths contempt from August 8, 2013, the date that I issued the preliminary injunction, to the present day. The ZBA asks me to find Roth in contempt, and order her to pay a fine to the Town in the amount of $100 per day for each day of her violation consistent with Section 17.52.080 of the Bylaw and to reimburse the Town for all attorneys fees and costs in bringing the contempt action. Roth acknowledges that while her website did remain active, it was unused, and therefore she did not make any commercial use of her property in accordance with my order.
Civil contempt is a means of securing to the aggrieved party the benefit of the courts order. Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 565 (1997). In order to justify a finding of contempt, there must be a clear and unequivocal command and an equally clear and undoubted disobedience. Id.; Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept of Mental Retardation (no. 1), 424 Mass. 430 , 443 (1997); Birchall, petitioner, 454 Mass. 837 , 852 (2009). The burden is on the party seeking enforcement of the courts order to establish such disobedience of a command by a preponderance of the evidence. Id. Civil contempt proceedings are remedial and coercive, intended to achieve compliance with the courts orders for the benefit of the complainant. Furtado v. Furtado, 380 Mass. 137 , 141 (1980). Among the possible remedies after a finding of contempt are coercive conditional fines and an award of attorneys fees incurred by a party prosecuting a complaint for contempt.
On August 8, 2013, Roth was ordered to cease and desist any commercial use of the Property until otherwise permitted to do so in writing by the Town, or by agreement of the parties, or by order of this Court. At the time, Roth acknowledged that she had been operating her proposed B&B while awaiting a decision regarding her special permit application, but stated that she would immediately terminate any future activity and take down her website.
Neighbors testified that even after the preliminary injunction was issued, they witnessed multiple vehicles, often bearing out-of-state license plates, coming and going from the property and sometimes parked overnight. The ZBA attributes these vehicles to guests of the Property and as evidence that Roth was still operating her illegal B&B. But the only documentary evidence presented to support these assertions were photographs submitted along with the ZBAs August 1, 2013 Answer and Counterclaim showing multiple out-of-state vehicles parked on Sargent Street or in the Sargent Street driveway. These photos were taken during the summer of 2013, prior to the preliminary injunction order. None of the photos submitted by the ZBA showing out- of-state vehicles were taken after the issuance of preliminary injunction order. Both Roth and her daughter testified that they did have visitors after the injunction was issued, but these were friends, not renters or lodgers. Roths daughter identified many of the vehicles in the 2013 photographs as belonging to these friends. She explained that these friends were either visiting or left their vehicles in the driveway while they were away on vacation. I credit this testimony.
Though the evidence is clear that Roth continued to maintain a detailed website advertising the B&B, both Roth and her daughter testified that after the preliminary injunction was issued, they received no business as a result of the website. Any visitors that did stay over were friends and not people who paid money in conjunction with the internet advertisement. No evidence was submitted to contradict this testimony or prove otherwise, and I credit it. Accordingly, the evidence is not of a clear and unequivocal nature to find Roth in contempt of my preliminary injunction order. The ZBAs civil contempt complaint is, thus, dismissed.
For the foregoing reasons, the ZBAs First Decision (case no. 462887) is affirmed. I annul the Second Decision (case no. 481663), finding that it was arbitrary, capricious, and in excess of the ZBAs authority. Judgment shall enter dismissing case no. 462887 and remanding case no. 481663 to the ZBA for proceedings consistent with this Decision. Because defendants failed to establish a disobedience of this Courts order by a preponderance of the evidence the Defendants Civil Contempt Complaint is dismissed with prejudice.
[Note 1] Roths compliance with the regulations for swimming pools under the State Sanitary Code (105 C.M.R. 435) is a separate issue, and is not addressed by this Decision. Exh. 12.
[Note 2] The website can be accessed at http://www.bnb-boston.com/.
[Note 3] Guest Bedroom 1 260 square feet; Guest Bedroom 2 148 square feet; Guest Bedroom 3 172 square feet; and Guest Bedroom 4 90 square feet. See Exh. 4.
[Note 4] 670/5278 square feet = 12.69% of GFA or 670/9052 square feet = 7.4% of GFA.