The opinion
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14-P-855 Appeals Court
BUCCANEER DEVELOPMENT, INC. vs. ZONING BOARD OF APPEALS OF
LENOX.
No. 14-P-855.
Suffolk. April 8, 2015. - August 11, 2015.
Present: Berry, Milkey, & Massing, JJ.
Zoning, Special permit, Board of appeals: decision.
Civil action commenced in the Land Court Department on
January 9, 2008.
After review by this court, 83 Mass. App. Ct. 40 (2012),
the case was heard by Dina E. Fein, J., sitting by designation,
on a case stated.
Brett D. Lampiasi for the plaintiff.
Jeremia A. Pollard for the defendant.
MASSING, J. In denying the plaintiff developer's request
for a special permit to build a residential retirement
community, the defendant zoning board of appeals of Lenox
(board) was frank: "In general, Board members agreed that the
proposed project was simply too dense and too out-of-character
2
with its surroundings." A judge of the Housing Court, sitting
by designation in the permit session of the Land Court, reviewed
the board's decision under G. L. c. 40A, § 17, and after a bench
trial, including a view of the project site, affirmed the denial
of the special permit. We affirm.
Background. The plaintiff, Buccaneer Development, Inc.
(Buccaneer), seeks to build a residential retirement community
for individuals fifty-five years of age and older, consisting of
twenty-three single-family townhouses on twenty-three acres of
land in the town of Lenox (town). The parcel, which is located
on East Street in a residential zoning district, is adjacent to
sixty-eight acres of protected open space to the north and
northeast. It is situated between four single-family homes to
the west, on lots ranging from .49 to 2.75 acres, and a 1950s
era cul-de-sac development to the east, of seventeen modest
single family homes on a total of 8.2 acres. To the south lies
the Cranwell resort and associated properties, including a golf
course, mansions, ten condominium units on one-acre lots, and a
housing development of thirty-seven units on twenty-one acres.
The public high school is located approximately eight-tenths
mile north on East Street.
3
On June 22, 2007, Buccaneer submitted an application for a
special permit to the board.1 After a series of public hearings,
the board voted 5-0 to deny the application on December 12,
2007, and its decision was filed on December 28, 2007. The
decision records the board members' reasons for denying the
application. Citing various subsections of the applicable town
zoning by-law (by-law), one member "noted that the proposed
development was unduly dense and would be detrimental to the
established 'small town' character of the neighborhood," and
another stated that "it was neither essential nor desirable to
the public welfare at the proposed location." A third member
said "it was not in harmony with the general intent and purpose
of the Bylaw, it was not desirable to the public welfare, it
would be detrimental to adjacent uses and the established
character of the neighborhood, and would exacerbate existing
traffic hazards." The two remaining members "concurred," both
noting that the requirements and purposes of the by-law were not
satisfied.
Buccaneer sought relief from the board's decision by filing
a complaint under G. L. c. 40A, § 17, in the Land Court. As
explained in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of
1
Under § 6 ("Use Regulations") of the town's zoning by-law,
as in effect at the relevant time, a special permit was required
to build a retirement community in a residential (R1A) zone.
4
Lenox, 83 Mass. App. Ct. 40 (2012) (Buccaneer I), on February 1,
2008, the board filed a notice of transfer, and, over
Buccaneer's objections, the complaint was ultimately heard in
the Housing Court. A judge of the Housing Court affirmed the
board's denial of the special permit on September 20, 2010, and
a corrected judgment issued on December 14, 2010. Id. at 45.
Buccaneer appealed from the Housing Court judge's decision, and
we vacated the judgment on the ground that the Housing Court
lacked subject matter jurisdiction under G. L. c. 185, § 3A. We
remanded the case for redetermination in the permit session of
the Land Court, directing that "[t]he case shall be adjudged in
light of the town by-law as it existed in December, 2007."
Buccaneer I, supra at 45 n.7.
On remand, the Chief Justice of the Trial Court, acting
under G. L. c. 211B, § 9, designated the same Housing Court
judge who had tried the case as a justice of the permit session
of the Land Court, nunc pro tunc to February 1, 2008. The trial
judge then issued an order to show cause why she should reopen
the case rather than go forward on a "case stated" basis. See
Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct.
989, 991 (1985). Buccaneer responded that it did not object to
the "case stated" procedure, but reserved its objection to "this
Court exercising jurisdiction over this action in the first
place." The judge then adopted her prior findings and decision
5
and, on April 8, 2014, re-entered the judgment affirming the
board's2 denial of the special permit.3
Discussion. In an appeal from a trial court's review of a
decision of a municipal board under G. L. c. 40A, "we defer to
the factual findings of the trial judge unless they are clearly
erroneous. We review the judge's determinations of law,
including interpretations of zoning by-laws, de novo, but we
remain 'highly deferential' to a board's interpretation of its
own ordinances." Grady v. Zoning Bd. of Appeals of Peabody, 465
Mass. 725, 728-729 (2013) (citations omitted).
Buccaneer applied for a special permit to build a
"retirement community," the minimum requirements for which are
set forth in § 9.6 of the by-law, as amended through May 4,
2
See note 5, infra, and accompanying text.
3
Although these procedures in response to Buccaneer I
essentially put Buccaneer in the same posture it was in before
we issued that decision, Buccaneer does not challenge the
propriety of these procedures in this appeal. Regarding the
designation, we observe that the Chief Justice of the Trial
Court by statute possesses "the power to assign a justice
appointed to any department of the trial court to sit in any
other department of the court, for such period or periods of
time as he deems will best promote the speedy dispatch of
judicial business." G. L. c. 211B, § 9(xi), as appearing in St.
2011, c. 93, § 52. See St. Joseph's Polish Natl. Catholic
Church v. Lawn Care Assocs., 414 Mass. 1003, 1004 (1993)
(approving use of interdepartmental assignment to cure
jurisdictional defect nunc pro tunc).
6
2006.4 The proposed project satisfied all of the special
provisions set forth in that section. In this regard, we agree
with the trial judge's conclusion that "the density of the
proposed project is well within the requirements of Section
9.6," and that the board had no basis to deny the special permit
under the square footage, acreage, frontage, or setback
provisions included in that section.
However, "[e]ven if the record reveals that a desired
special permit could lawfully be granted by the board because
the applicant's evidence satisfied the statutory and regulatory
criteria, the board retains discretionary authority to deny the
permit." Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349,
355 (2001). "[T]he decision of the board can only be disturbed
'if it is based "on a legally untenable ground" . . . or is
"unreasonable, whimsical, capricious or arbitrary."'" Subaru of
New England, Inc. v. Board of Appeals of Canton, 8 Mass. App.
Ct. 483, 486 (1979), quoting from Gulf Oil Corp. v. Board of
Appeals of Framingham, 355 Mass. 275, 277 (1969).
Section 6.1.1 of the by-law enumerates five factors the
board must consider in determining whether to grant a special
permit. Two of these factors are more or less objective: the
4
The by-law was admitted as an exhibit at trial. Given our
disposition of this case, we do not address the board's claim
that subsequent amendments to the by-law have rendered this
appeal moot.
7
board must find that the proposed use "(d) [w]ill not create
undue traffic congestion, or unduly impair pedestrian safety"
and "(e) [w]ill not overload any public water, drainage or sewer
system" or similar municipal facilities. The board found "no
significant impact to the existing sewer system," and only one
member of the board voiced concern that the proposed development
"would exacerbate existing traffic hazards." We reject the
board's argument on appeal that it properly based its denial of
the special permit on traffic congestion, crash data, or
pedestrian safety. The trial judge specifically found that the
evidence did not "support the conclusion that the proposed
project would increase traffic congestion or adversely affect
pedestrian safety," and the board has not shown that the judge's
finding in this regard was clearly erroneous.
Nonetheless, the three other criteria in § 6.1.1 of the by-
law specifically require the board to consider more subjective
factors and not to grant a special permit unless it finds that
the proposed use "(a) [i]s . . . in harmony with [the by-law's]
general intent and purpose; (b) [i]s essential or desirable to
the public conveniences or welfare at the proposed location;
[and] (c) [w]ill not be detrimental to adjacent uses or to the
established or future character of the neighborhood." The
board's denial of the special permit was firmly grounded in its
assessment that the proposed use failed to meet these criteria.
8
The facts found by the trial judge provide support for the
board's determination. The judge found that "the proposed
project would significantly alter the area in the immediate
vicinity" of the project:
"[T]here now exists 23 acres of open land, abutting 68
acres of similarly open land immediately to the north; the
overall impression is one of open space, pasture, and
indigenous vegetation. Were the project to go forward,
there would be 23 single family homes, similar in
appearance, clustered around a parkway in a manicured
setting. . . . [F]rom the perspective of the immediate
neighborhood, the Buc[c]aneer project would represent a[]
substantial change in the appearance and 'feel' of the
area. At some point, development in an area reaches a
'tipping point;' the fact that past development has not
been viewed as incompatible with the neighborhood does not
mean that incremental additional development must always be
viewed similarly."
"[P]articularly where the judge conducted a view," we are
reluctant to disturb her findings. Bernier v. Fredette, 85
Mass. App. Ct. 265, 275 (2014).
"We do not consider this to be one of the exceptional cases
where a board can be ordered to grant a special permit." Subaru
of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App.
Ct. at 488. This case is unlike MacGibbon v. Board of Appeals
of Duxbury, 356 Mass. 635, 639-640 (1970) (board did not provide
an adequate statement of its reasons for denying the special
permit and committed numerous errors of law in the process),
Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 298
(1972) (board's findings inadequate, "amount[ing] to little more
9
than a mere recitation of the statutory and by-law standards"
and "indicat[ing] that the board did not have sufficient
evidence before it to make the necessary findings"), or Shirley
Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461
Mass. 469, 485 (2012) (board failed "to apply its own standards
rationally"). Here, the board acted within its discretion,
consistent with the facts on the ground, and conformably with
the applicable by-law.
Conclusion. The judgment of the Land Court dated April 8,
2014, is modified by deleting "Planning Board" and inserting
"Zoning Board of Appeals" and by deleting "dated December 21,
2007," and inserting "filed December 28, 2007." As so modified,
the judgment is affirmed.5
So ordered.
5
Evidently, by the time the final judgment issued, the
trial judge had lost sight of the fact, noted in her 2010
findings of fact, that, while the case originally also involved
an appeal from the planning board of Lenox's denial of an
application for a special permit under a different section of
the by-law, "[t]hat aspect of the dispute has been resolved
. . . and is not . . . before the court." The parties appear to
have proceeded before us on the assumption that the final
judgment is, in fact, an affirmance of the decision of the
zoning board of appeals, rather than of the planning board, and
we have modified the judgment accordingly.
BERRY, J. (dissenting). While I recognize full well the
broad discretionary powers vested in local zoning boards to
grant or deny applications for special permits, and the highly
deferential nature of our review of the board's interpretations
of its own ordinances, a board's discretion is not limitless,
and as applied to this case, I do not accept, and cannot give
deference to, the fatally vague and cursory decision of the
Lenox zoning board of appeals (board), which, from all that
appears, was tantamount to an unbridled and arbitrary conclusion
that the board simply did not want this project to move forward.
On this record, I find no basis in fact, and thus no support,
for the board's denial of the application of Buccaneer
Development, Inc. (Buccaneer), for a special permit.
Accordingly, I respectfully dissent.
I turn first to the applicable section of the town of Lenox
zoning by-law (by-law). Section 6.1.1 of by-law requires as
follows:
"Before granting a special permit for any use requiring
such permit under the provisions of this By-law, the
[b]oard [must] find that the proposed use:
"(a) Is in compliance with all provisions and
requirements of this Bylaw, and in harmony with its general
intent and purpose;
"(b) Is essential or desirable to the public
conveniences or welfare at the proposed location;
"(c) Will not be detrimental to adjacent uses or to
the established or future character of the neighborhood;
2
"(d) Will not create undue traffic congestion, or
unduly impair pedestrian safety; [and]
"(e) Will not overload any public water, drainage or
sewer system . . . ."
The majority seeks to uphold the board's denial of the
special permit on the basis of the first three criteria in
§ 6.1.1 of the by-law, or as the majority writes, the three
"more subjective factors." Ante at . To this end the
majority opinion holds that "[t]he board's denial of the special
permit was firmly grounded in its assessment that the proposed
use failed to meet these criteria," and that "[t]he facts found
by the trial judge provide support for the board's
determination." Ibid.
To the contrary, based on my review of the record, I
believe the board's reasoning stood on far more untenable
ground. The board gives us only the following in support of its
conclusory denial of Buccaneer's application for a special
permit:
"[T]he proposed development was unduly dense and would
be detrimental to the established 'small town' character of
the neighborhood," "violated the spirit of the Bylaw . . .
because it was neither essential nor desirable to the
public welfare," "would be detrimental to adjacent uses and
the established character of the neighborhood," and "was
simply too dense and too out-of-character with its
surroundings."
These specious conclusions, which, in my view, consist of
merely a summary recitation of the criteria found within § 6.1.1
3
of the by-law, without citation to any fact, finding, or
reasoned analysis, are "legally untenable." Britton v. Zoning
Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003).
For me, what is missing from the board's decision, for example,
is any explanation or reasoning as to why Buccaneer's proposed
project was neither essential nor desirable to the public
welfare, or how the project was detrimental to the small town
character of the neighborhood, or what aspects of the project
would be detrimental to adjacent uses. "When a decision
contains conclusions that do nothing more than repeat regulatory
phrases, and are unsupported by any facts in the record, we are
constrained to conclude that the decision is 'unreasonable,
whimsical, capricious or arbitrary,' and therefore invalid."
Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of
Appeal of Billerica, 454 Mass. 374, 386 (2009) (Wendy's),
quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429
Mass. 478, 486 (1999). That, in my view, is the correct
assessment of the record and the necessary conclusion in this
case.
Other reasons offered by the board for denying Buccaneer's
special permit stand in direct conflict with the specific
findings of the trial judge. For example, as the majority
acknowledges, one member of the board stated that the project
was "unduly dense." The trial judge, however, specifically
4
found that "the density of the proposed project is well within
the requirements . . . and were density the only issue herein,
there would be no basis for denying the special permit."
Even accepting, as I do, the "'peculiar' combination of de
novo and deferential analyses," Wendy's, 454 Mass. at 381,
involved in the lower court's review of the board's decision, it
seems apparent, on this record, that the trial judge gave far
too much deference to the board's conclusions. As previously
noted, there is an antidevelopment flavor to the board's
decision. From all that appears, the reasons provided by the
board, unsupported by the evidence, and summarily accepted by
the majority, could be read simply to indicate that the board
preferred that the land at issue remain undeveloped. Given the
speculative nature of the board's rationale, it appears that the
trial judge could have, and in my view, was indeed required to,
conduct a more exhaustive review of the facts behind the board's
stated reasons for denying Buccaneer's application for a special
permit.
That is indeed why we have the important judicial function
of review under G. L. c. 40A, § 17, so that a trial judge may
make independent findings of fact, and then determine whether
"the reasons given by the board [had a] 'substantial basis in
fact,' [or were, on the contrary,] 'mere pretexts for arbitrary
action or veils for reasons not related to the purposes of the
5
zoning law.'" Shirley Wayside Ltd. Partnership v. Board of
Appeals of Shirley, 461 Mass. 469, 475 (2012), quoting from
Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App.
Ct. 308, 312 (1973).
I add that the board's arbitrary denial of Buccaneer's
special permit, in my view, reflects the as-applied vague and
standardless nature of the by-laws at issue. "[L]ocal by-laws
must provide adequate standards for the guidance of the board in
deciding whether to grant or withhold special permits." Josephs
v. Board of Appeals of Brookline, 362 Mass. 290, 294 (1972).
Finally, I find troublesome the summary manner in which the
Housing Court judge, i.e., trial judge, sitting by special cross
designation, adopted her prior findings, word for word, without
conducting any further hearing in the permit session of the Land
Court. Buccaneer expressly reserved objection to the Housing
Court retaining jurisdiction, with the same judge sitting as the
presiding trial judge on remand from this court in Buccaneer
Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct.
40 (2012).1
It may be that this cross designation procedure between the
Housing Court and the permit session of the Land Court, as in
1
Having preserved this jurisdictional challenge, to be
noted is that Buccaneer did then agree to have the case
presented on the extant record -- not an unreasonable litigation
strategy, I think.
6
this case, is an emerging intra-court development. See Skawski
v. Greenfield Investors Property Dev., LLC, 87 Mass. App. Ct.
903, further appellate review granted, 472 Mass. 1103 (2015)
(holding that, under G. L. c. 185, § 3A, the Housing Court
lacked subject matter jurisdiction over the abutters' G. L.
c. 40A appeal from the grant of a special permit in a case where
the Housing Court judge [coincidentally, the same Housing Court
judge as in the instant Buccaneer appeal] sought to have the
case administratively transferred from the Housing Court to the
Superior Court and also requested cross designation and
assignment to the case).
It may be that adopting this practice as a common
procedure, designating the Housing Court judge who had initially
tried the case, to sit as a special justice in the permit
session of the Land Court, is an appropriate common Trial Court
transfer vehicle. Or, it may be that such cross designation
should be an exceptional mode for litigation in the permit
session of the Land Court. To be considered perhaps is the
specialized judicial function of the Land Court permit session
and the clear legislative intent in G. L. c. 185, § 3A, to grant
original jurisdiction over these matters only to the permit
session of the Land Court or the Superior Court.2 These are
2
A number of errors occurred in the handling of this case,
which are troubling. (a) The docket. The final judgment states
7
court administration issues which may be beyond the scope of
this dissent. And, the standards for this kind of cross
designation might be appropriate for review in the Supreme
Judicial Court under G. L. c. 211, § 3. But, I emphasize that
Buccaneer did preserve its jurisdictional objection. See note
1, supra, and accompanying text.
The majority ultimately determines, see ante at , that
what was, in effect, a "veto" of Buccaneer's special permit is
that it was entered on April 8, 2014, but the docket provided to
us shows an entry on April 4, 2014, "entering new judgment." No
document has been provided to us that would correspond to a
judgment entered on April 4. (b) The decision on appeal. In
her 2010 decision, sitting in the Housing Court, the trial judge
correctly noted that, while the case originally also involved an
appeal from the planning board of Lenox's denial of an
application for a special permit under a different section of
the by-law, "[t]hat aspect of the dispute has been
resolved . . . and is not . . . before the court." But,
inexplicably, in 2013, sitting by designation in the permit
session of the Land Court, in an order for judgment, the judge
stated (erroneously), "In reviewing the record, it appears that
the parties, this court, and the Appeals Court have all, at
various times, misidentified the defendant as the Zoning Board
of Appeals. The original pleadings and docket make clear,
however, that the named defendants are the Planning Board for
the Town of Lenox, and the members thereof. Any references to
the defendant as the Zoning Board of Appeals are hereby
corrected as scrivener's errors." The judge's 2013 error was
carried forward to the final judgment, from which Buccaneer
purports to appeal, and which states, "Judgment shall enter in
favor of the defendants, affirming the decision of the Planning
Board for the Town of Lenox dated December 21, 2007, which
denied a special permit to the plaintiff Buccaneer Development,
Inc." In fact, Buccaneer did not pursue an appeal from the
planning board's decision, which, in any event, does not appear
in the record appendix. We have corrected the judge's error in
our disposition of this case. See "Conclusion" and note 5,
ante.
8
saved because there was a finding of some sort of "tipping
point," calibrated by the judge after a view of the subject
property. The majority quotes as follows:
"[T]here now exists 23 acres of open land, abutting 68
acres of similarly open land immediately to the north; the
overall impression is one of open space, pasture, and
indigenous vegetation. Were the project to go forward,
there would be 23 single family homes, similar in
appearance, clustered around a parkway in a manicured
setting. . . . [F]rom the perspective of the immediate
neighborhood, the Buc[c]aneer project would represent a[]
substantial change in the appearance and 'feel' of the
area. At some point, development in an area reaches a
'tipping point;' the fact that past development has not
been viewed as incompatible with the neighborhood does not
mean that incremental additional development must always be
viewed similarly." (Emphasis supplied.)
Ibid. The problem with this purported "tipping point"-based
analysis is that it is nothing more nor less than a wholly
subjective commentary by the G. L. c. 40A reviewing judge that
Buccaneer's project would alter the "feel" of the surrounding
area. Indeed, the vagary of the word "feel" only reinforces the
entirely subjective analysis here, which is not grounded in
zoning law or the requirements of G. L. c. 40A review. What
does it mean to "feel" a project is not too dense in an area,
or, conversely, to "feel" a development project is too dense?
What we have here, at the end of the day, is a "tipping
point"/"feel." My research has discovered no other case under
G. L. c. 40A in which the words "tipping point" or "feel"
govern. If the future of special permit reviews were to turn on
9
such inchoate expression, then G. L. c. 40A appeal and review
would be standardless and virtually meaningless to the special
permit applicant.
For the foregoing reasons, I would vacate the judgment and
remand this matter once again to the Land Court, for an
independent review of the board's decision denying Buccaneer's
application for a special permit.