Agenda - Planning Commission - 09/03/2009

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(\ I /~ , ) ( .' \--.".c-' Zoning Bulletin August 10, 20091 Volume 31 No. 15 ~" CAST sought a required special permit from the town's zoning board of appeals (the "Board"). The relevant town bylaws provided that special permits could be granted by the Board "upon its written determination that benefits of the proposed use outweigh[ed] its detrimentalimpacts on the town and the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site." The bylaw required that the Board's determination on special permits include consideration of, among other things: (1) social, economic or community needs which are served by the proposal; (2) traffic flow and safety; and (3) neighborhood character and social structures. The Board denied CAST's special permit request. The Board's decision was based on its findings of: (1) detrimental impacts from the proximity of the beer and wine store to the schools and the day care center; and (2) a lack of possible benefits to the community because several full service package stores were already located on the same road. CAST appealed. The District Court judge did "not find [the Board's] claim of detri- mental impact persuasive." In the judge's opinion, "[w]hile the phar- macy [sold] items of interest to children, the absence of pedestrian ac- cess and the supervised nature of the ~pecial needs school and day care center ma[de] it highly unlikely that any children in the store would be unsupervised." Nevertheless, the judge affirmed the Board's denial of CAST's special permit application because he found the Board "seem[ed] to have at least gone through the motions of considering and reporting on whether 'the benefits of the proposed use outweigh[ ed] its detrimental impacts on the town.'" . CAST appealed. It argued that in denying CAST's special permit ap- plication, the Board had improperly considered the proximity of the schools and the day care center as a detrimental impact. DECISION: Affirmed. The Appeals Court of Massachusetts held that, in denying CAST's special permit application, the Board could consider the proximity of the schools and the day care center as a detrimental impact. The court explained that in reviewing whether the Board's decision was proper, it applied a two-part inquiry: (1) Was the Board's decision based on a "standard, criterion, Or consideration not permitted by the applicable statutes or by-laws;" and (2) Did a "rational view of the facts" support the Board's conclusion that the applicant failed to meet one or more.of the relevant criteria in the bylaw? As to the first inquiry, the court found the Board's decision was based on the Board's view that the proximity of the proposed beer and wine. @ 2009 Thomson Reuters 3 57