Agenda - Planning Commission - 11/12/2015

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Zoning Bulletin September 25, 2015 I Volume 9 I Issue 18 Buccaneer appealed the ZBA's determination. The land court judge affirmed the ZBA's denial of the special permit. Buccaneer again appealed. DECISION: Judgment of land court affirmed. The Appeals Court of Massachusetts, Suffolk, held that the ZBA acted within its discretion when it denied Buccaneer's application for a special permit to build the proposed residential retirement community. The appellate court noted that in applying for the special permit to build the "retirement community," Buccaneer had met all minimum requirements outlined under § 9.6 of the Town's zoning bylaw. In that regard, the court concluded that the density of the proposed project was "well within" the bylaw's requirements and that the ZBA therefore "had no basis to deny the special peiuiit under the [dimensional] provi- sions included in [the bylaw]." However, noted the appellate court, "[elven if the record reveals that a desired special permit could law- fully be granted by [a] board because the applicant's evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit." Thus, said the court, here, the ZBA's denial of the special permit application would be affirmed unless the denial was "on a legally untenable ground" or was "unreasonable, whimsical, capricious or arbitrary." Here, in addition .to the dimensional requirements of the bylaw (under § 9.6, which had been met), the court found that under the bylaw's Use Regulations (§ 6.1.1), the ZBA had to consider five fac- tors in determining whether to grant a special peunit. Of those five fac- tors, noted the court, three were subjective: the ZBA could not grant a special permit unless it found the proposed use "(a) [was] . . . in harmony with [the bylaw's] general intent and purpose; (b) .[was] es- sential or desirable to the public conveniences or welfare at the proposed location; [and] (c) [would] not be detrimental to adjacent uses or to the established or future character of the neighborhood." Here, the appellate court found that the ZBA's denial of Buccaneer's special permit application "was firmly grounded in its assessment that the proposed use failed to meet these criteria." The court found that the facts provided support for the ZBA's determination in that the now 23 acres of open land of the Property would become a cluster develop- ment of single-family homes, representing a "substantial change in the appearance and `feel' of the area." Accordingly, the court concluded that the ZBA in denying Buc- caneer's special permit application acted "within its discretion, consis- tent with the facts on the ground, and conformably with the applicable by-law." See also: Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 395 N.E.2d 880 (1979). ©2015 Thomson Reuters 11