Posted by: Patricia Salkin | August 24, 2015

MA Appeals Court Holds Zoning Board of Appeals Acted Within Its Discretion When It Denied Developer’s Application for a Special Permit to Build Residential Retirement Community

Plaintiff, Buccaneer Development, Inc., sought 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. Buccaneer commenced action in permit section of Land Court, seeking judicial review of determination of town zoning board denying its application for special permit. The Town counsel filed notice of transfer to Housing Court, which affirmed the determination of town zoning board denying permit. Buccaneer appealed, and the Appeals Court vacated and remanded. On remand, the permit session of the Land Court affirmed the board’s denial of the special permit, and an appeal was taken.

At issue, Section 6.1.1 of the by-law enumerated five factors the board must consider in determining whether to grant a special permit. One of these factors was relied on in the board’s argument on appeal that it properly based its denial of the special permit on traffic congestion, crash data, or pedestrian safety. However, the trial judge 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 had not shown that the judge’s finding in this regard was clearly erroneous. The three other criteria in § 6.1.1 of the by-law specifically required 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 facts found by the trial judge provided support for the board’s determination under these factors. Therefore, the court found that the board acted within its discretion, consistent with the facts on the ground, and in conformity with the applicable by-law.

Buccaneer Development, Inc v Zoning Board of Appeals of Lenox, 2015 WL 4725043 (MA App. 8/11/2015)

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