Category Archives: Zoning

ZBA approves Hospital Road 40B

40b

The Zoning Board of Appeals of the Town of Medfield yesterday approved and today released its decision on the Larkins’ 49 units (with 13 affordable units) Country Estates 40B project, granting approval subject to pages of conditions.  This link goes tot eh full decision – 20170406-ZBA-1300 – Country Estates – Hospital Road – Comp Permit

I know that blasting was a special concern of the neighbors, especially given the amount of ledge, and this is the blasting condition and the final conclusion:

=================================================================

G.l 7. Blasting – Pursuant to 527 CMR 1.00, Chapter 65, a licensed blasting professional
shall perform all blasting on the Property after proper pre-blast inspections and
surveys have been conducted and all required permits have been obtained from
the Medfield Fire Department, and such work shall be performed in accordance
with all local, state and federal requirements. Prior to any blasting or rock
removal, the Fire Chief shall review and approve a plan, including a schedule, for
such drilling, blasting, and hammering. No blasting shall take place before 10:00
a.m. or after 4:00 p.m., Monday through Friday. The plan and schedule shall be
provided to the Board two weeks before commencement of drilling, blasting, or
hammering.
G.18 Rock Crushing. No onsite rock crushing shall be conducted except for that
necessary for use onsite from 10:00 a.m. to 3:00 p.m. ,Monday to Friday. All
other rock shall be crushed offsite.

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V.       CONCLUSION

For all the reasons stated above and pursuant to the Board’s authority found in G.L. c.40B, §§ 20-23, the Comprehensive Permit application is hereby APPROVED WITH CONDITIONS by a vote of 3 to 0.    The Board reserves the right to cause this Decision to be recorded at the Norfolk County Registry of Deeds.

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ZBA & PB vacancies

This Christmas, give our town the gift of your services.  This from Town Planner, Sarah Raposa –

planning

Medfield Planning Board Vacancy

The Town of Medfield Planning Board is seeking to fill a vacant Associate Member position.  Anyone who may be interested should submit a letter of interest to Evelyn Clarke at eclarke@medfield.net in the Board of Selectmen’s office by October 1, 2015.  For questions regarding the Planning Board or this specific position please contact Sarah Raposa, Town Planner at sraposa@medfield.net.

The Planning Board is an elected town board of five members, each with a five year term. The purpose of the Planning Board is to guide the development of the Town in the best interests of all its residents. The Board has very specific responsibilities and authorities as granted by Massachusetts General Laws and the Medfield Zoning By-Laws.

The Planning Board is responsible for the review and approval of all subdivisions (the division of a tract of land into two or more lots) through a comprehensive process involving review by relevant regulatory agencies, public hearings, covenants with developers, performance bonding, and ongoing compliance monitoring.

Under “Site Plan Approval”, in the Zoning By-Laws, the Board also has the responsibility to assure that prior to any new construction or significant changes to an existing structure, other than single family dwellings, such factors as community needs, abutters’ concerns, visual amenities, safety issues, and environmental and historic features on the site and in adjacent areas are considered.

Any requests for Zoning By-Law changes or amendments are also reviewed by the Board. Public hearings are held to allow input from any abutters or other interested citizens. The Board is required to provide a recommendation on any Zoning By-Law amendment at Town Meeting, where a two-thirds vote is required to approve the change.

The Planning Board serves as a resource to assist interested individuals with the process of proposing plans or projects under the Zoning By-Laws. Communications are maintained on an ongoing basis with related Town agencies including the Zoning Board of Appeals and other planning groups within the Town such as the Medfield State Hospital Master Planning Committee.

Letters should describe your interest in the Planning Board as well as any professional experience or other qualifications that will complement the Board. Additionally, please contemplate the following  in your letter of interest:

  • Do you have ideas about the direction the Board should be headed? If so, have you thought about integration of those ideas (meaning how the idea coalesces into existing regulations or whether new regulations would need to be created)?

 

  • Land use boards such as the Planning Board or ZBA do not always have the kind of discretion to approve or deny a specific project that residents often think they have. It is important to recognize and avoid any conflict of interest; not to pursue special privileges, and maintain confidentiality. Are you prepared for being thought of as a villain by some and a hero by others?
  • Planning Boards wear two hats, proactive and reactive, and the schedule is robust. The proactive hat is devoted to long-range planning and is often difficult to quantify as the effects aren’t recognized for several years, if at all. The reactive hat focuses on subdivisions and site plan review and the effects are more immediately seen and felt in the community. How would you rationalize your reactive hat with your proactive hat? Do you see an overlap?

 

 

Medfield Zoning Board of Appeals Vacancy

The Town of Medfield Zoning Board of Appeals (ZBA) is seeking to fill a vacant Associate Member position.  Anyone who may be interested should submit a letter of interest to Evelyn Clark at eclark@medfield.net in the Board of Selectmen’s office by March 1, 2017.   For questions regarding the ZBA or this specific position please contact Sarah Raposa, Town Planner at sraposa@medfield.net.

The Zoning Board of Appeals is an appointed board and acts as a quasi-judicial body deciding whether or not to vary from the Zoning By-Laws. The Zoning Board is empowered to act on appeals, special permits, variances, modifications and comprehensive permits, in accordance with applicable sections of Massachusetts General Laws and the Town of Medfield Zoning By-Laws.

Virtually all matters which come before the Board are initiated by residents or businesses seeking relief from the Zoning By-Law. Each application is processed in accordance with the legal requirements and timetables established under the Massachusetts Zoning Act, the ZBA Rules and Regulations and the Medfield Zoning By-Laws.

The Zoning Board of Appeals holds public hearings on applications for zoning variances, special permits and decides appeals of administrative decisions of the Building Commissioner. Hearings are generally held on the second Wednesday of the month at 7:30 pm in the Chenery Room in Town Hall, 459 Main Street.

Letters should describe your interest in the ZBA as well as any professional experience or other qualifications that will complement the Board. Additionally, please contemplate the following in your letter of interest:

  • Land use boards such as the ZBA do not always have the kind of discretion to approve or deny a specific project that residents often think they have. It is important to recognize and avoid any conflict of interest; not to pursue special privileges, and maintain confidentiality. Are you prepared for being thought of as a villain by some and a hero by others?

Planning Board on assisted living bylaw change

planning

At the planning board last night there was a hearing held on the annual town meeting (ATM) warrant article that I suggested and wrote, which had been approved by the full board of selectmen, that effectively undid the 2012 annual town meeting vote that changed our zoning bylaws to permit assisted living facilities in the RS district (residential with 20,000 sq. ft. lots) by special permit. My proposed warrant article was an inelegant, mechanical rollback to the prior dated zoning language.  In an impressive bit of drafting and leadership in front of a room full of 50 intensely interested citizens, Wright Dickinson, skillfully revised the language of the proposed warrant article on the fly in a way that both dramatically improved it as a zoning article, and satisfied those who had come to the hearing.

The zoning article in question was a change at the 2012 annual town meeting that made assisted living facilities permitted in the RS zoning district by a special permit issued by the Zoning Board of Appeals, and which LCB is currently using to site its proposed facility. The procedural problem at the 2012 ATM was that the description of the zoning article that was published in the ATM booklet mailed out to residents prior to the town meeting did not clearly describe that particular change. To actually understand the full import of the zoning change, one had to consult documents only available in the town clerk’s office.

Since I believed that the 2012 ATM process had failed the residents by not being either explained or transparent enough, I suggested and tried to craft a zoning article for the upcoming annual town meeting that would allow the residents to indicate anew whether they are in favor of the 2012 zoning change or not. Town counsel told me that we could not undo, ab initio, the vote from 2012 so I thought the next best thing was to give people the opportunity to vote to change the zoning back to what it had been prior to 2012. However, much of the 2012 zoning change was an attempt to improve and modernize the old fashioned language in the zoning bylaw, and that was where Wright Dickinson was so successful in getting agreement from those gathered to the modernization language and only retaining the proposed warrant article’s reversion to assisted living in a RS the district as a “NO” instead of as a “SP” (special permit).  He also got agreement to assisted living being permitted in the B and IE districts where it had previously been prohibited.

The ultimate result of the hearing was a much improved warrant article for the town meeting, and, equally importantly, a group of residents in attendance who were mostly duly impressed with the forthrightness, diligence, and intelligent response of their volunteer planning board members to their concerns.  there will be follow up on whether to prohibit assisted living in the RU district, and several more details relating to the zoning issues.

Interestingly, after the hearing on the proposed warrant article, the bulk of those in the room went home, leaving just a half dozen of us to listen to the planning board discuss possible solutions to the issue of the excessively dense development in the downtown RU district, where many of the older homes have been turned into much larger 2-family houses or houses behind houses 2-family homes on the deep lots.

The planning board agreed to continue to look into several possible solutions, including:

•    Restricting the district to single-family homes
•    reconsidering anew the floor area ratio in the district
•    having a greater floor area ratio for two-family homes in the district
•    changing setbacks
•    crafting a definition of a 2-family house
•    considering implementation of design review
•    considering creation of a historic district

It was a truly successful evening for the planning board, who got to finally go home at about 10:30 PM.

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.
1641V5
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LCB at ZBA per Globe

LCB

Boston Globe article on the ZBA hearing this week.

https://www.bostonglobe.com/metro/regionals/west/2016/02/05/assisted-living-plan-sparks-opposition-medfield/SYjr1F8XMHlaofLrza4ykN/story.html

Assisted living zoning article

2014 -town meeting

2014 -town meeting

When I discovered that our 2012 annual town meeting (ATM) passed a zoning change based on written materials that were not in the booklet mailed to residents, that were only knowable by reviewing the materials in the Town Clerk’s office, and hence were unknowable to we residents at the town meeting who voted that evening, I thought that was not the right way for the town to pass bylaws.  Therefore, I have worked to change what and how that happened.

I first learned about the issue months ago when neighbors of the proposed LCB assisted living facility alerted me to what had happened.  As a result, I spend time educating myself as to what transpired, and analyzing the results.  I personally concluded that:

  • the 2012 process was flawed in my mind because of the lack of information; and
  • even under the zoning changes purportedly made in 2012, that the LCB petition has no basis under existing zoning, because LCB should be applying under the part of the bylaw that covers “commercial,” not “institutional, non-profit” uses – both LCB’s attorney and Town Counsel disagree with me on this.

To follow through on what I see as correcting the 2102 ATM vote because of the insufficient material, I last Tuesday had my fellow selectmen vote to put warrant articles forward at the upcoming ATM to undo what was voted in 2012, if the residents so chose.

It turned out that drafting those warrant articles fell to me, and so yesterday I did so.  Below are those drafts as I shared them with the town administration and my selectmen colleagues.

The votes would just revert those zoning bylaws to the wording that existed before the 2012 ATM.


 

From: Osler Peterson
Sent: Friday, January 29, 2016 2:03 PM
To: ‘Mark Fisher’; ‘Richard DeSorgher’
Cc: Sarah Raposa; Michael Sullivan; Mark Cerel; Kristine Trierweiler
Subject: zoning articles

Richard and Mark,

FYI –

Mark Cerel asked me to draft what I am suggesting with respect to the annual town meeting (ATM) zoning warrant articles, and this is what I came up with – it reverts from what we have now back to what we had before 2012.

5.4.2.8             Strike “Hospital, convalescent, nursing home, Hospice, continuing care, or assisted living facility” and replace it with “Hospital, sanitarium or sanatorium” and strike “SP” and replace it with “NO” in the B, B-I, and I-E districts.

5.4.4.10         Strike “Hospice or nursing homes, convalescent and assisted living facilities and medical and dental office” and replace it with “Convalescent or nursing homes and medical and dental office” and strike “SP” and replace it with “NO” in the R-S and I-E districts.

Best,

Pete


 

As the final irony of this whole process, if afforded the opportunity to vote on the above warrant articles at our upcoming ATM, I will vote against them.  While I believe the 2012 process was flawed, I agree with the result, which gives our Zoning Board of Appeals the discretion to decide for the town whether any particular proposal makes sense.

Having seen the operation of the ZBA from my years serving as a member, I trust the ZBA to do what is in the best interest of the town, and also I want the town to have the flexibility to locate assisted living facilities in appropriate areas, including residential zones when it makes sense.

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.