Nevertheless, the Appeals Court on August 11, 2015 upheld
the Land Court’s decision that the denial by the Lenox Zoning Board was
erroneous.
The Appeals Court stated that the Board’s decision can only
be disturbed if it was unreasonable, whimsical, capricious or arbitrary.
“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).” Buccaneer Dev.,
Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at
*2 (Mass. App. Ct. Aug. 11, 2015)
The Court determined that the denial
based on broad subjective grounds was within the Board’s authority.
“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……’[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).” Buccaneer Dev., Inc. v. Zoning
Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *3 (Mass. App.
Ct. Aug. 11, 2015)
The decision gives greater authority
to special permit granting authorities to deny permits even when the applicant
has met the objective requirements. Again, as usual, note that the process took
over eight years to reach this point.
Paul F. Alphen, Esquire
Alphen & Santos, P.C.
Westford, MA
