# Colangelo v. Board of Appeals of Lexington

> Massachusetts Supreme Judicial Court · April 12, 1990 · 407 Mass. 242

URL: https://www.frixlaw.com/law-library/cases/9725391

## Case

- **Full name:** Michael Colangelo & Another, Trustees, vs. Board of Appeals of Lexington & Another
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** April 12, 1990
- **Citations:** 407 Mass. 242; 552 N.E.2d 541
- **Precedential status:** Published
- **Opinion:** Dissent by Liacos
- **Judges:** Liacos, Abrams, Nolan, Lynch, O'Connor, Greaney
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Liacos, CJ.
(dissenting, with whom Nolan, J., joins). The court today, by concluding that the board acted arbitrarily, improperly substitutes its evaluation of the facts for that of the board. Because the board, in my judgment, acted within the bounds of its discretion, I dissent.
The board, in denying the permit, cited the severe traffic problems which existed in the vicinity of the plaintiffs’ lot. Allowing the plaintiffs to build on the lot, according to the board, “would lead to further exacerbation of the current traffic problem . . . [and] would be contrary to the town’s efforts to improve traffic conditions in the Hartwell Avenue - Bedford Street area . . . .” The board referred to the plaintiffs’ “Traffic Impact Assessment,” which stated that the intersections near the plaintiffs’ lot are “generally congested . . . and characterized by very long delays during commuter periods of the day.”-
The board has power to deny a permit so long as it has not “based its decision on a ‘legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ ” Humble Oil & Ref. Co. v. Board of Appeals of Amherst, 360 Mass. 604, 605 (1971), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638 (1970).
*249 In my view, the board acted within its discretion in refusing to grant the plaintiffs a permit. The judge’s finding that additional traffic from the plaintiffs’ proposed project would be minimal does not negate the fact that the board could find that the plaintiffs’ building would exacerbate the traffic problem. “To hold that a decision . . . denying a permit is arbitrary . . . whenever the board, on the facts found by the trial judge, could have granted a permit, would eliminate the board’s intended discretion.” Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486 (1979), quoting Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969). “[I]t is ‘the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling.’ ” Subaru of New England, Inc., supra at 488, quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821, 821 (1973).
The fact that the board reached a different conclusion with respect to previous projects does not necessarily control a determination whether it acted arbitrarily in this particular case. 1 The board noted the traffic impact assessment’s observation that the “general congest [ion]” and “very long delays” is “particularly true for vehicles attempting left turns from the minor streets into Hartwell Avenue” (emphasis added). The plaintiffs’ lot lies virtually on top of the intersection at issue in this case. The board properly could consider the particular hazards associated with the location of the lot in reaching its decision. In essence, the board concluded that this particular lot was different, not only due to traffic impact, but also due to the location of the lot.
I fear that the court’s opinion will deter cities and towns from denying permits when it is clearly within their discre *250 tion to do so. I hope that the cities and towns will understand this case to be an aberration, and that they will remain assured that they retain the broad discretion vested in them by statutory authority and reaffirmed by sound precedent. Municipalities are in the best position to know whether the development of a particular lot will have an adverse impact on the quality of life of their citizens. Only in exceptional cases should a court interfere with the discretion of the board to make determinations of this type. This is not such a case.
I dissent.
The board may reasonably conclude, after approving a number of projects, that the balance has tipped so that any further increase in traffic will result in such congestion that the purpose of the zoning by-law will be frustrated. Any action taken by the board after the denial of the plaintiffs’ applications should not be considered in a determination whether the board acted within its discretion at the time it reviewed the plaintiffs’ applications.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9725391. Public record. Not legal advice.