Opinion
No. 14–P–1735.
05-09-2016
Gerard MEEHAN, trustee, v. BOARD OF APPEALS OF SOMERVILLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from a judgment of the Land Court overturning a decision of the board of appeals of Somerville (appeals board) and ordering that a special permit be issued for the property at 9–11 Aldersey Street. The local planning board had granted a site plan approval for the proposed project; however, the appeals board summarily denied the request for a special permit. The plaintiff appealed to the Land Court and, after a trial and a view, the judge determined that the decision of the appeals board was “arbitrary and capricious” and ordered the board to issue a special permit. We affirm.
Background. The parties do not dispute the trial judge's factual findings or the underlying evidence. Rather the appeals board argues that the judge's interpretation of the zoning ordinance is incorrect as applied to this lot, and that the judge did not defer to their assessment of the surrounding neighborhood.
As a result, all of the facts described are taken from the judge's decision.
The property at issue is a long-neglected, 1850's farmhouse with more recent additions; the plaintiff is a developer who seeks to rehabilitate the farmhouse and further develop the 25,000 square foot lot. The lot is more than twice the size of the average two-family lot in the broader (abutting) neighborhood, and all of the nearby properties contain much larger housing units with accessory buildings encroaching on lot lines on lots that average 10,000 square feet. The farmhouse, which now contains three housing units, is centrally located on the lot, which is not landscaped and is used for parking by the farmhouse residents.
The plaintiff seeks not only to rehabilitate the farmhouse but also to add two buildings to the property; both buildings will be substantially similar to the farmhouse. The rehabilitation will remove the later-added addition to the farmhouse and reduce the number of residential units in the farmhouse from three to two. One of the new buildings will contain three housing units and the other building will contain six housing units, for a total of eleven residential units on the lot. The new buildings will match the farmhouse in architecture, color, and height, and parking for the units would be under the buildings or in the rear of the property and not visible to the street.
The proposed project would have been allowed as of right prior to 1988, when the zoning ordinance was amended to allow only two units of housing on lots in the “Residence A” (RA) district where the project is located. As a result, the developer was required to seek a special permit with site review. The judge found that “the new buildings would be located towards the sides of the lot to isolate and showcase the farmhouse at the center. Each of the three buildings would be fully compliant with every dimensional requirement in the zoning ordinance—height, front setbacks, side setbacks, rear setbacks, floor area ratio (the ratio of floor area of the building to the total area of the lot).” Most importantly, the judge found that the buildings would be shorter than the buildings on the surrounding lots, and that, in size, scale, and mass, the project would be compatible with the buildings on the surrounding lots.
After a site view, the judge found that the lot to the left of 9–11 Aldersey Street contained an eight-family structure and a one-family house, a three-car garage located directly on the property line, and an asphalt parking area. Next to that lot, is a six-family residence with a large asphalt parking area. The left side of the 9–11 Aldersey Street lot would contain the six-unit building that would be consistent with the housing abutting that side of the lot.
To the right of the 9–11 Aldersey Street lot is a lot that contains a multistory three-family structure, originally Victorian, but with a large addition expanding the building in height and width, along with a three-car garage sitting on the boundary line. Abutting that lot are three lots with large multifamily residential structures and accessory buildings. The proposed three-unit building is consistent with the housing abutting that side of the lot and would be placed on that side.
The street is a public two-way street with parking on both sides. It is not a main street and the judge determined that the proposed development will not affect traffic. Across the street from the 9–11 Aldersey Street lot are an eighteen-unit, flat-roofed brick apartment building with an asphalt parking area, and seven multifamily dwellings; however, one of the structures is essentially a townhouse with two attached one-family dwellings.
Prospect Hill rises behind 9–11 Aldersey Street; the Prospect Hill properties behind the lot are therefore higher than the present farmhouse and the proposed development. All but one of the dwellings behind 9–11 Aldersey Street are multifamily dwellings, many with large additions, and the three dwellings that share 9–11 Aldersey's rear lot line are located directly on the lot line.
Relying on the applicable section of the zoning ordinance, the judge made detailed further findings in a twenty-five page memorandum and order, finding that the property is consistent with the surrounding buildings in the neighborhood. The project as designed will meet all side, rear, and front set-backs in the zoning ordinance. Importantly, the judge specifically found that the project will not be a detriment to the neighborhood, but, rather, would improve the neighborhood.
Discussion. “[A] special permit concerns a use thought under the zoning code to be potentially acceptable in a zoning district, but only after and subject to review and permission of a permit granting authority, to the end that the use applied for be compatible with the allowed uses in the area in which it is to be planted.... Special permits govern that class of uses that lie between those that are prohibited and those that, because they comply with the zoning code in all detail, are allowed as of right.” Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass.App.Ct. 664, 667–668, 715 N.E.2d 470 (1999). “[O]n appeal, the court was required to engage in a process that was in part deferential to the board and in part not.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 72, 794 N.E.2d 1198 (2003). “In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found.” Ibid. In reviewing the local zoning board's denial of a special permit, the judge “determines the content and meaning of statutes and by-laws and decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or deny the ... special permit application.” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475, 961 N.E.2d 1055 (2012). “In the end, the court must affirm the board's decision unless it finds that denial of the application was ‘based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.’ “ Britton, supra, quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639, 255 N.E.2d 347 (1970).
The appeals board argues that it was entitled to deference regarding its specialized knowledge of local conditions and neighborhood characteristics, especially where the appeals board may have decided not to use large multifamily units as a comparison since those residences predated the zoning ordinance applicable here . The appeals board contends that the zoning ordinance only permits two units as of right in the RA zone where the lot is located, and that the special permit was denied because the project is “too large with respect to scale, massing, and design of the two buildings proposed; it is “not compatible with the surrounding neighborhood” in the RA zone; it had “too many” units for the site; and it would be “substantially more detrimental for the neighborhood.”
The appeals board also argues that the judge erred in rejecting their argument that historic considerations were also at issue in their decision. The judge ruled that the city of Somerville had an historic preservation board that would act on any historic concerns raised by rehabilitation of the farmhouse and that historical considerations are not for the appeals board. In reviewing the decision of the appeals board, it is clear that there was no presentation of any historic concerns at the public hearings documented in the appeals board's decision. As such, the appeals board could not have relied on any historic concerns in reaching its conclusion and denying the special permit to the plaintiff for that reason. We are satisfied that its argument here is without merit. We note that the Somerville historic commission also denied approval to the project at 9–11 Aldersey Street. However, the parties agree that decision has been appealed to the Superior Court and is not before us.
--------
The reasons offered by the appeals board for denying the special permit are contradicted by the judge's findings. The judge carefully and thoroughly reviewed each requirement of the zoning ordinance at issue and ruled that the project met or exceeded the requirement of the ordinance. See Somerville zoning ordinance § 5.2 .3 (1990). We will not repeat the findings here; suffice it to say, the judge was thorough and complete in his findings and rulings. The project as proposed meets all specifications set out in the ordinance controlling special permits with site review. The lot size is larger than the vast majority of lots in the neighborhood and is surrounded by multifamily homes. It will have fewer residential units than the abutter across the street and, while it will have more residential units than its side abutters, the larger lot size can accommodate the units without violating any setback requirements. Moreover, the current condition of the structure occupying the lot is poor and the proposed rehabilitation will eliminate an eyesore from the neighborhood. The judge specifically found that the project was not more detrimental to the neighborhood than the existing structure and, in fact, would improve the neighborhood.
The appeals board counters that it is entitled to reject the project for any reason based on the deference due under the statute, G.L.c.40A, § 17. That argument overstates the actual deference due. Here, the judge properly ruled that the zoning ordinance must be followed; it was “neither designed nor intended to allow a ‘decision by preference.’ “ See Britton, 59 Mass.App.Ct. at 72, 794 N.E.2d 1198. “The board is entitled to deny a permit even ‘if the facts found by the court would support its issuance,’ but the judge nonetheless should overturn a board's decision when ‘no rational view of the facts the court has found supports the board's conclusion.’ “ Shirley Wayside Ltd. Partnership, supra, quoting from Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 381, 383 (2009). “Deference is not appropriate when the reasons given by the board lacked ‘substantial basis in fact’ and were in reality ‘mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.’ “ Ibid., quoting from Vazza Properties, Inc. v. City Council of Woburn, 1 Mass.App.Ct. 308, 312, 296 N.E.2d 220 (1973). The appeals board “may not conclude that an expansion will be substantially more detrimental to the neighborhood in the absence of credible evidence.” Shirley Wayside Ltd. Partnership, supra at 485, 961 N.E.2d 1055.
We are satisfied there was no error.
Judgment affirmed.