Category Archives: Permitting

Proposed Child Care Center

Proposed Child Care Center

A child care facility has been proposed for 75 High Street, a fairly narrow lot on which the land slopes up steeply from Rte. 27.  The area is zoned residential, but under the state statute, child care facilities are exempt from local zoning, just as are religious and educational uses, so the facility can locate there subject to reasonable health and safety strictures imposed by the Planning Board on site plan review petition.

Today I was provided a copy of the plans, and I thought that there will be many who will want to see those plans, so I uploaded them here.

75HighSitePlan8-9-17

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MS4, stormwater regulations, appeal status

ms4

MS4 Appeal Status

This email was forwarded by Mike Sullivan this afternoon, which email explains that the coalition of towns appealing the new federal stormwater regulations is entering a  litigation phase.


Dear MS4 Contributors,

 

The following update was provided to MCWRS members via our newsletter. I also wanted to share the latest information with those of you who have contributed to the appeal or plan to.

 

On August 24, 2016, MCWRS and the Town of Franklin jointly filed a Petition for Review of the U.S. Environmental Protection Agency’s (EPA’s) Final MA Small Municipal Separate Storm Sewer Systems (MS4) General Permit with the First Circuit Court of Appeals in Boston. Prior to the MCWRS/Franklin appeal, the Center for Regulatory Reasonableness (CRR) filed an appeal in the Court of Appeals for the D.C. Circuit, in Washington, D.C. Several events have occurred since these two initial filings. Three additional appeals were filed in the First Circuit – by the City of Lowell, the National Association of Home Builders/Home Builders Association of MA, and the Conservation Law Foundation/Charles River Watershed Association (CLF/CRWA).

The U.S. Department of Justice (on behalf of EPA) has filed a motion to transfer the appeals filed by MCWRS, Lowell, National Association of Home Builders, and CLF to the D.C. Circuit. The transfer request was triggered by the CRR appeal first filed in the D.C. Circuit, and EPA’s submittal of the Administrative Record Index to that court. The appeals are expected to be transferred. Meanwhile, in the First Circuit, MCWRS/Franklin filed a motion to intervene in the CLF/CRWA appeal on the ground that other parties in that case (i.e. EPA) would not protect the municipalities’ interests in that case. CLF/CRWA’s position is that the MS4 Permit does not go far enough. CLF/CRWA have filed motions to intervene in all of the pending appeals.

Our attorneys are prepared to submit briefs and oral arguments in the Court of Appeals for the D.C. Circuit. We will continue to keep you apprised of events related to this critically important action to protect Massachusetts communities’ interests. Read the full press release on the MCWRS website for complete details on the announcement.

 

Going forward, now that the appeal is filed all communications between MCWRS and its attorneys are privileged and confidential. Additionally, since as public agencies you are all subject to public records laws, we do not want to supply updates via email that may include sensitive information and strategies. Instead, we think a periodic conference call may be the safest and best way to provide our supporters with updates. Of course, we would also not want you to share details of the call content via email with anyone else in your department or other town staff as they would be subject to the same public records regulations. Please let us know if you have any questions or concerns about our planned approach to keeping you updated.

 

As always, we greatly appreciate your support in this important matter!

 

Best regards,

Kate

 

 

 

Kate Barrett

Vice President for Public Involvement

Regina Villa Associates, Inc.

51 Franklin Street, Suite 400

Boston, MA 02110

40B follow up

Rendering

There has been tremendous reaction and interest to the 200 unit 40B that has been proposed, and I have been asked how it can be stopped and/or what the town can do.

The 200 unit proposal will have to go through a rigorous permitting process with the Zoning Board of Appeals of the Town of Medfield, at which time public input is accepted, peer review will likely be required, and reasonable health and safety conditions can be imposed.

In addition to Zoning Board of Appeals approval, the 200 unit proposal has to get ComCon approval, however, the owner was already in before the ConCom within the past month to seek a wetlands delineation, so the project as laid out may well probably comply with the wetland regulations.  When the owner was recently before the ConCom they were not required and did not tell the ConCom the reason for seeking the wetland delineation.

The Zoning Board of Appeals cannot safely turn the 200 unit proposal down, as the applicant then just appeals to the state Housing Appeals Committee and, traditionally, the HAC will just approve the project, perhaps without any of the conditions that the ZBA might impose.  Therefore, the ZBA strategy needs to be to approve the proposal with reasonable conditions related to health and safety sorts of issues, that modify and mitigate its impact, without making it in the terms of the 40B statute “uneconomic.”

Massachusetts General Laws c. 40B creates a conundrum for towns that do not have 10% affordable housing and/or a safe harbor via some other mechanism, namely having either an approved Housing Production Plan and/or devote 1.5% of available land in town to affordable housing.  Even if the town had an approved Housing Production Plan, then the town would still need to build 22 units of affordable housing a year to keep the protection.

Medfield is currently short about 139 units of affordable housing to get to the 10% level, and only about a little more than half way to the 1.5% safe harbor.  Ironically, with the Hospital Road 40B 48 unit condo ownership proposal and the new 200 unit rental proposal, the town would add 212 affordable units, so the town would be way over the 10% level.  For ownership 40B’s the town gets credit only for the actual 25% of the units that are affordable, whereas in a rental projects such as the 200 unit proposal, one gets credit for all the units, even though only 25% are affordable and 75% are market rate units.

A draft Housing Production Plan was prepared a  couple of years ago, and after it left the selectmen with general positive comments it went to the planning board.  I was told the planning board did not like it, although I was never learned why.  The draft Housing Production Plan was then set aside, and only just recently addressed anew.  The planning board started meeting to push forward on both the Housing Production Plan and the necessary plans on how to meet the 10% affordable housing levels – I just attended on 8/8/16 a kickoff and really productive planning board meeting on those topics, at which both the Housing Production Plan and possible affordable housing sites and strategies were discussed in depth.

Interestingly, the main property on the East side of Rte. 27 that is part of the 200 unit proposal had been the  subject of town purchase discussions between the town and the then owner, Mary Solari, after her husband had died, as that site was suggested as a better location for the new public safety building, one that would have saved the town over $500,000 in construction costs because the project would not have to have been phased.  I am informed that at that time, the town was told that Mrs. Solari was not interested in selling, and I am also told that she has since died.

 

Image

DEP site walk at LCB

Commonwealth of Massachusetts Executive Office of Energy & Environmental Affairs Department of Environmental Protection Central Regional Office • 8 New Bond Street, Worcester MA 01606 • 508-782-7650 Charles D. Baker Governor Karyn E. Polito Lieutenant Governor Mr. Lee Bloom LCB Senior Living 3 Edgewater Drive, Suite 101 Norwood, MA 02062 Dear Mr. Bloom: June 23, 2016 Re: Wetlands/Medfield DEP File# 214-0635 361 & 363A Main Street Medfield, MA 02052 Request for Depruirnental Action Site Meeting Notice Matthew A. Beaton Secretary Martin Suuberg Commissioner The Department of Environmental Protection (Depruiment) is in receipt of your Request for Departmental Action as the applicant for the Assisted Living Residence project. The Medfield Conservation Commission issued an Order of Conditions denying the project on May 26, 2016. The Deprutment, under the provisions of General Laws, Ch. 131 § 40 and in prepru·ation for the issuance of a Superseding Order of Conditions, will hold an informal on-site meeting with all concerned patties. The site meeting will take place at 353/355 Main Street on June 28, 2016 at 3:00 pm to informally discuss the issues relevant to the appeal. No activity may commence on any portion of the project subject to the jurisdiction of the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 until all appeal periods have elapsed and all proceedings before the Depruirnent have been completed, 310 CMR 10.05 (7)(k). Please contact me at (508) 767-2711 if you have any questions. Sincerely, ~t.Jlly Environmental Analyst Bureau of Water Resources Division of Wetlands and Waterways cc: Medfield Conservation Commission (via lwillitts@rnedfield.net) Gloria Yankee, 361 Main Street, Medfield (via gsyankee@verizon.net) Stephen J. Browne, 303 Main Street, Medfield (via browne@stantonusa.com) Michelle & John Linnert, 353/355 Main Street, Medfield (via linnert@comcast.net) Renee McDonough, Goddard Consulting (via renee@goddardconsultingllc.com) This Information Is available in alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep Printed on Recycled Paper

LCB buys Clark Tavern

Good article from the Medfield Press –  the Clark Tavern now appears headed to becoming a private residence (to which the public will not have access).

Peak House & Clark Tavern

Peak House & Clark Tavern

LCB has purchased the old Clark Tavern.

LCB has purchased the old Clark Tavern. The company plans on fixing up the historic building and to plant a lot of pine trees on the property.
LCB has purchased the old Clark Tavern.John and Michelle Linnert have sold the Clark Tavern to LCB after giving up on their plans for the historic building that were tied up in the state’s land court for the past few years.

By Adam Stuhlman

Posted Mar. 17, 2016 at 8:42 AM

MEDFIELD

LCB Director of Corporate and Marketing Affairs Ted Doyle said his company has agreed to a purchase and sale agreement to take ownership of the historic Clark Tavern off Route 109 as part of their plan to develop a senior citizen assisted living facility on 361-363A Main Street. Of the 14.7 acres LCB owns, Doyle said that 2.7 acres would be developed, leaving approximately 12 acres unused.

Doyle anticipates LCB closing on the property during the summer.

Many Medfield residents are concerned about the proposed development and the effect it would have on the Clark Tavern and the Peak House. Residents want both historic buildings and the land they sit on protected.

John and Michelle Linnert sold LCB the Clark Tavern. They originally wanted to use the tavern, which today is in rough shape, as a restaurant and a multi-use function facility, according to a March 13, 2015 article in http://medfield.wickedlocal.com/article/20150313/News/150317844.

David Temple, president of the Medfield Historical Society, said the Linnerts bought the property several years ago. The Linnerts’ plans, which were approved by the town, were delayed in state land court on multiple occasions by objectionable neighbors. The former owners become tired of the delays and decided to sell the property to LCB.

“I’m disappointed for them because they felt that due to stalling from neighbors in court that they had enough and were going to give up,” Temple said.

While Doyle said this design enhances the proposal without changing it, Temple said he has spoken with the Linnerts in the past about the tavern and is concerned that LCB might try and do something to it.

“I am concerned about whether or not the Linnerts could put in a clause to say that nothing will happen to the building,” he said. “Could the corporate headquarters of LCB decide to take it down?”

The Linnerts did not return a call in time for print.

Doyle is seeking to alleviate the worries of residents.

“People are concerned the tavern might be torn down,” said Doyle. This is “absolutely not our intention. The whole point in doing this is to protect it.”

“This [proposal] takes that [worry] off the table. We are trying to put our best project together and we see this as a real opportunity to work well with the community. We hope this is a win/win scenario because we want to maintain it as a two-family residential use and protect it from commercial development,” said Doyle.

Doyle said this proposal addresses many concerns that the citizens have.

“The combination of the assisted living community and a residential use of the tavern represent 48 percent less weekly traffic than the (previously) approved tavern project alone,” Doyle said.

The design proposal enhances the esthetics by “eliminating 43 parking spaces next to the Peak House” and adding area lighting. This plan would allow them to save numerous trees and do extensive planting of several dozen 20-foot tall pine trees throughout the site, thus allowing “for more privacy” while addressing “the visual concerns of the project,” Doyle said.

As a part of the agreement, LCB will pledge $5,000 a year for preservation and maintenance of the Peak House for as long as the company owns the assisted living property. In addition, they will donate $10,000 worth of supplies to the Medfield Food Cupboard and an internship program for local students.

Medfield resident David Stephenson, one of the lead antagonists towards the proposed development, and said it is good news that the future of the tavern is secure even if the development moves ahead. Following the concept of real estate – location, location, location, he maintained his opposition to the assisted living facility location.

“The proposed facility’s location is unacceptable. There is no amount of fine tuning they can do that will change our opposition to this,” he said.

Doyle said that if the assisted living project is rejected by the town, LCB would sell the land and the Clark Tavern.

Follow reporter Adam Stuhlman on Twitter: @adam_wtimes

ZBA’s broad discretion on LCB

LCB

The ZBA has really broad discretion in dealing with the LCB petition, as noted in the 2015 Massachusetts Appeals Court case below.

In this case, the Lennox ZBA hung its denial of a permit for a proposed residential retirement community on the thinnest of grounds, and yet the courts upheld that exercise as being within the ZBA’s discretion:  “In general, Board members agreed that the proposed project was simply too dense and too out-of-character  with its surroundings.”  This despite that the proposed density was not different than what was already there.

Note however the strong dissent. Some commentators have liked the dissent better, but it is not what has prescedence.


 
Buccaneer Development, Inc. vs. Zoning Board of Appeals of Lenox.

No. 14-P-855.

APPEALS COURT OF MASSACHUSETTS

87 Mass. App. Ct. 871; 35 N.E.3d 737; 2015 Mass. App. LEXIS 107

April 8, 2015, Argued
August 11, 2015, Decided

PRIOR-HISTORY:    Suffolk. 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.
Buccaneer Dev., Inc. v. Zoning Bd. of Appeals, 83 Mass. App. Ct. 40, 980 N.E.2d 458, 2012 Mass. App. LEXIS 293 (2012)

HEADNOTES-1 Zoning, Special permit, Board of appeals: decision.
A town’s zoning board of appeals (board) acted within its discretion and conformably with the applicable by-law in denying a special permit to build a residential retirement community, where the board’s decision was firmly grounded in its assessment that the proposed use failed to be in harmony with the by-law’s general intent and purpose, was not essential or desirable to the public conveniences or welfare at that location, and would be detrimental to adjacent uses or to the established or future character of the neighborhood.  Berry, J., dissenting.

COUNSEL: Brett D. Lampiasi for the plaintiff.

Jeremia A. Pollard for the defendant.

JUDGES: Present: Berry, Milkey, & Massing, JJ.

OPINION BY: MASSING

OPINION
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  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 of one mile north on East Street.
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.

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.
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 Lenox, 83 Mass. App. Ct. 40, 980 N.E.2d 458 (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, 475 N.E.2d 408 (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 and, on April 8, 2014, re-entered the judgment affirming the board’s2 denial of the special permit.3

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, 608 N.E.2d 722 (1993) (approving use of interdepartmental assignment to cure jurisdictional defect nunc pro tunc).
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, 991 N.E.2d 1060 (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, 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.

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.
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, 754 N.E.2d 101 (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, 395 N.E.2d 880 (1979), quoting from Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311 (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 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.
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, 8 N.E.3d 769 (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, 255 N.E.2d 347 (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, 285 N.E.2d 436 (1972) (board’s findings inadequate, “amount[ing] to little more 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, 961 N.E.2d 1055 (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

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.

So ordered.

DISSENT BY: BERRY

DISSENT
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;
“(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 874. 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.” Id. at 875
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 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, 794 N.E.2d 1198 (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, 909 N.E.2d 1161 (2009) (Wendy’s), quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486, 709 N.E.2d 798 (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 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 zoning law.'” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475, 961 N.E.2d 1055 (2012), quoting from Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308, 312, 296 N.E.2d 220 (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, 285 N.E.2d 436 (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, 980 N.E.2d 458 (2012).1

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.
It may be that this cross designation procedure between the Housing Court and the permit session of the Land Court, as in this case, is an emerging intra-court development. See Skawski v. Greenfield Investors Property Dev., LLC, 87 Mass. App. Ct. 903, 26 N.E.3d 1112, further appellate review granted, 472 Mass. 1103, 36 N.E.3d 29 (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 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.

2   A number of errors occurred in the handling of this case, which are troubling. (a) The docket. The final judgment states 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.
The majority ultimately determines, see ante at 875-876, that what was, in effect, a “veto” of Buccaneer’s special permit is 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 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.
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Assisted living ATM articles

town meeting

I just finished a long phone conversation with Mike Sullivan and Mark Cerel about several topics, including the warrant articles I asked at the selectmen meeting this week to have added to the annual town meeting (ATM) warrant, to deal with the issue that the 2012 town meeting vote to permit assisted living in residential zones was based on data that was only available in the Town Clerk’s office.

I had originally proposed at the Board of Selectmen meeting two articles:

  1. One first to vote again on the 2012 zoning change, but this time with full information, and
  2. A second vote to undo the 2012 zoning change.

 

As we talked it through, I realized that the second article could be made to do the same thing as the first article anyway.  Town Counsel was also noting out that the former would be difficult to do at this point where the zoning change had already both passed at the town meeting and been approved by the Attorney General.

The way we left it was that Town Counsel and Mike would prepare two articles for teh upcoming annual town meeting on April 25:

  1. The first one would change the use table back to what it was before 2012 for “Public, Semi-public Institutional” uses, and
  2. The second one would do the same for “Commercial” uses.

Those two votes would effectively re-vote the 2012 town meeting vote, so those articles satisfy my goal of allowing the town residents to decide this zoning change (to permit assisted living in residential zones, upon a discretionary special permit from the ZBA) upon full information at the town meeting.