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14-P-855                                              Appeals Court

  BUCCANEER DEVELOPMENT, INC.      vs. ZONING BOARD OF APPEALS OF
                                 LENOX.


                              No. 14-P-855.

           Suffolk.       April 8, 2015. - August 11, 2015.

              Present:    Berry, Milkey, & Massing, JJ.


      Zoning, Special permit, Board of appeals:      decision.



     Civil action commenced in the Land Court Department on
January 9, 2008.

     After review by this court, 83 Mass. App. Ct. 40 (2012),
the case was heard by Dina E. Fein, J., sitting by designation,
on a case stated.


    Brett D. Lampiasi for the plaintiff.
    Jeremia A. Pollard for the defendant.


    MASSING, J.       In denying the plaintiff developer's request

for a special permit to build a residential retirement

community, the defendant zoning board of appeals of Lenox

(board) was frank:     "In general, Board members agreed that the

proposed project was simply too dense and too out-of-character
                                                                      2


with its surroundings."   A judge of the Housing Court, sitting

by designation in the permit session of the Land Court, reviewed

the board's decision under G. L. c. 40A, § 17, and after a bench

trial, including a view of the project site, affirmed the denial

of the special permit.    We affirm.

    Background.   The plaintiff, Buccaneer Development, Inc.

(Buccaneer), seeks 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 (town).      The parcel, which is located

on East Street in a residential zoning district, is adjacent to

sixty-eight acres of protected open space to the north and

northeast.   It is situated between four single-family homes to

the west, on lots ranging from .49 to 2.75 acres, and a 1950s

era cul-de-sac development to the east, of seventeen modest

single family homes on a total of 8.2 acres.      To the south lies

the Cranwell resort and associated properties, including a golf

course, mansions, ten condominium units on one-acre lots, and a

housing development of thirty-seven units on twenty-one acres.

The public high school is located approximately eight-tenths

mile north on East Street.
                                                                   3


     On June 22, 2007, Buccaneer submitted an application for a

special permit to the board.1   After a series of public hearings,

the board voted 5-0 to deny the application on December 12,

2007, and its decision was filed on December 28, 2007.     The

decision records the board members' reasons for denying the

application.   Citing various subsections of the applicable town

zoning by-law (by-law), one member "noted that the proposed

development was unduly dense and would be detrimental to the

established 'small town' character of the neighborhood," and

another stated that "it was neither essential nor desirable to

the public welfare at the proposed location."   A third member

said "it was not in harmony with the general intent and purpose

of the Bylaw, it was not desirable to the public welfare, it

would be detrimental to adjacent uses and the established

character of the neighborhood, and would exacerbate existing

traffic hazards."   The two remaining members "concurred," both

noting that the requirements and purposes of the by-law were not

satisfied.

     Buccaneer sought relief from the board's decision by filing

a complaint under G. L. c. 40A, § 17, in the Land Court.    As

explained in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of


     1
       Under § 6 ("Use Regulations") of the town's zoning by-law,
as in effect at the relevant time, a special permit was required
to build a retirement community in a residential (R1A) zone.
                                                                     4


Lenox, 83 Mass. App. Ct. 40 (2012) (Buccaneer I), on February 1,

2008, the board filed a notice of transfer, and, over

Buccaneer's objections, the complaint was ultimately heard in

the Housing Court.     A judge of the Housing Court affirmed the

board's denial of the special permit on September 20, 2010, and

a corrected judgment issued on December 14, 2010.     Id. at 45.

Buccaneer appealed from the Housing Court judge's decision, and

we vacated the judgment on the ground that the Housing Court

lacked subject matter jurisdiction under G. L. c. 185, § 3A.       We

remanded the case for redetermination in the permit session of

the Land Court, directing that "[t]he case shall be adjudged in

light of the town by-law as it existed in December, 2007."

Buccaneer I, supra at 45 n.7.

    On remand, the Chief Justice of the Trial Court, acting

under G. L. c. 211B, § 9, designated the same Housing Court

judge who had tried the case as a justice of the permit session

of the Land Court, nunc pro tunc to February 1, 2008.     The trial

judge then issued an order to show cause why she should reopen

the case rather than go forward on a "case stated" basis.     See

Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct.

989, 991 (1985).     Buccaneer responded that it did not object to

the "case stated" procedure, but reserved its objection to "this

Court exercising jurisdiction over this action in the first

place."   The judge then adopted her prior findings and decision
                                                                    5


and, on April 8, 2014, re-entered the judgment affirming the

board's2 denial of the special permit.3

     Discussion.    In an appeal from a trial court's review of a

decision of a municipal board under G. L. c. 40A, "we defer to

the factual findings of the trial judge unless they are clearly

erroneous.    We review the judge's determinations of law,

including interpretations of zoning by-laws, de novo, but we

remain 'highly deferential' to a board's interpretation of its

own ordinances."    Grady v. Zoning Bd. of Appeals of Peabody, 465

Mass. 725, 728-729 (2013) (citations omitted).

     Buccaneer applied for a special permit to build a

"retirement community," the minimum requirements for which are

set forth in § 9.6 of the by-law, as amended through May 4,




     2
         See note 5, infra, and accompanying text.
     3
       Although these procedures in response to Buccaneer I
essentially put Buccaneer in the same posture it was in before
we issued that decision, Buccaneer does not challenge the
propriety of these procedures in this appeal. Regarding the
designation, we observe that the Chief Justice of the Trial
Court by statute possesses "the power to assign a justice
appointed to any department of the trial court to sit in any
other department of the court, for such period or periods of
time as he deems will best promote the speedy dispatch of
judicial business." G. L. c. 211B, § 9(xi), as appearing in St.
2011, c. 93, § 52. See St. Joseph's Polish Natl. Catholic
Church v. Lawn Care Assocs., 414 Mass. 1003, 1004 (1993)
(approving use of interdepartmental assignment to cure
jurisdictional defect nunc pro tunc).
                                                                     6


2006.4    The proposed project satisfied all of the special

provisions set forth in that section.    In this regard, we agree

with the trial judge's conclusion that "the density of the

proposed project is well within the requirements of Section

9.6," and that the board had no basis to deny the special permit

under the square footage, acreage, frontage, or setback

provisions included in that section.

     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 (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 (1979), quoting from Gulf Oil Corp. v. Board of

Appeals of Framingham, 355 Mass. 275, 277 (1969).

     Section 6.1.1 of the by-law enumerates five factors the

board must consider in determining whether to grant a special

permit.    Two of these factors are more or less objective:   the


     4
       The by-law was admitted as an exhibit at trial. Given our
disposition of this case, we do not address the board's claim
that subsequent amendments to the by-law have rendered this
appeal moot.
                                                                   7


board must find that the proposed use "(d) [w]ill not create

undue traffic congestion, or unduly impair pedestrian safety"

and "(e) [w]ill not overload any public water, drainage or sewer

system" or similar municipal facilities.   The board found "no

significant impact to the existing sewer system," and only one

member of the board voiced concern that the proposed development

"would exacerbate existing traffic hazards."    We reject the

board's argument on appeal that it properly based its denial of

the special permit on traffic congestion, crash data, or

pedestrian safety.   The trial judge specifically 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 has not shown that the judge's

finding in this regard was clearly erroneous.

    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.
                                                                   8


    The facts found by the trial judge provide support for the

board's determination.   The judge found that "the proposed

project would significantly alter the area in the immediate

vicinity" of the project:

    "[T]here now exists 23 acres of open land, abutting 68
    acres of similarly open land immediately to the north; the
    overall impression is one of open space, pasture, and
    indigenous vegetation. Were the project to go forward,
    there would be 23 single family homes, similar in
    appearance, clustered around a parkway in a manicured
    setting. . . . [F]rom the perspective of the immediate
    neighborhood, the Buc[c]aneer project would represent a[]
    substantial change in the appearance and 'feel' of the
    area. At some point, development in an area reaches a
    'tipping point;' the fact that past development has not
    been viewed as incompatible with the neighborhood does not
    mean that incremental additional development must always be
    viewed similarly."

"[P]articularly where the judge conducted a view," we are

reluctant to disturb her findings.   Bernier v. Fredette, 85

Mass. App. Ct. 265, 275 (2014).

    "We do not consider this to be one of the exceptional cases

where a board can be ordered to grant a special permit."      Subaru

of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App.

Ct. at 488.   This case is unlike MacGibbon v. Board of Appeals

of Duxbury, 356 Mass. 635, 639-640 (1970) (board did not provide

an adequate statement of its reasons for denying the special

permit and committed numerous errors of law in the process),

Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 298

(1972) (board's findings inadequate, "amount[ing] to little more
                                                                    9


than a mere recitation of the statutory and by-law standards"

and "indicat[ing] that the board did not have sufficient

evidence before it to make the necessary findings"), or Shirley

Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461

Mass. 469, 485 (2012) (board failed "to apply its own standards

rationally").   Here, the board acted within its discretion,

consistent with the facts on the ground, and conformably with

the applicable by-law.

     Conclusion.   The judgment of the Land Court dated April 8,

2014, is modified by deleting "Planning Board" and inserting

"Zoning Board of Appeals" and by deleting "dated December 21,

2007," and inserting "filed December 28, 2007."   As so modified,

the judgment is affirmed.5

                                    So ordered.




     5
       Evidently, by the time the final judgment issued, the
trial judge had lost sight of the fact, noted in her 2010
findings of fact, that, while the case originally also involved
an appeal from the planning board of Lenox's denial of an
application for a special permit under a different section of
the by-law, "[t]hat aspect of the dispute has been resolved
. . . and is not . . . before the court." The parties appear to
have proceeded before us on the assumption that the final
judgment is, in fact, an affirmance of the decision of the
zoning board of appeals, rather than of the planning board, and
we have modified the judgment accordingly.
    BERRY, J. (dissenting).   While I recognize full well the

broad discretionary powers vested in local zoning boards to

grant or deny applications for special permits, and the highly

deferential nature of our review of the board's interpretations

of its own ordinances, a board's discretion is not limitless,

and as applied to this case, I do not accept, and cannot give

deference to, the fatally vague and cursory decision of the

Lenox zoning board of appeals (board), which, from all that

appears, was tantamount to an unbridled and arbitrary conclusion

that the board simply did not want this project to move forward.

On this record, I find no basis in fact, and thus no support,

for the board's denial of the application of Buccaneer

Development, Inc. (Buccaneer), for a special permit.

Accordingly, I respectfully dissent.

    I turn first to the applicable section of the town of Lenox

zoning by-law (by-law).   Section 6.1.1 of by-law requires as

follows:

    "Before granting a special permit for any use requiring
    such permit under the provisions of this By-law, the
    [b]oard [must] find that the proposed use:

         "(a) Is in compliance with all provisions and
    requirements of this Bylaw, and in harmony with its general
    intent and purpose;

         "(b) Is essential or desirable to the public
    conveniences or welfare at the proposed location;

         "(c) Will not be detrimental to adjacent uses or to
    the established or future character of the neighborhood;
                                                                    2



         "(d) Will not create undue traffic congestion, or
    unduly impair pedestrian safety; [and]

         "(e) Will not overload any public water, drainage or
    sewer system . . . ."

    The majority seeks to uphold the board's denial of the

special permit on the basis of the first three criteria in

§ 6.1.1 of the by-law, or as the majority writes, the three

"more subjective factors."   Ante at    .   To this end the

majority opinion holds that "[t]he board's denial of the special

permit was firmly grounded in its assessment that the proposed

use failed to meet these criteria," and that "[t]he facts found

by the trial judge provide support for the board's

determination."   Ibid.

    To the contrary, based on my review of the record, I

believe the board's reasoning stood on far more untenable

ground.   The board gives us only the following in support of its

conclusory denial of Buccaneer's application for a special

permit:

         "[T]he proposed development was unduly dense and would
    be detrimental to the established 'small town' character of
    the neighborhood," "violated the spirit of the Bylaw . . .
    because it was neither essential nor desirable to the
    public welfare," "would be detrimental to adjacent uses and
    the established character of the neighborhood," and "was
    simply too dense and too out-of-character with its
    surroundings."

    These specious conclusions, which, in my view, consist of

merely a summary recitation of the criteria found within § 6.1.1
                                                                   3


of the by-law, without citation to any fact, finding, or

reasoned analysis, are "legally untenable."   Britton v. Zoning

Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003).

For me, what is missing from the board's decision, for example,

is any explanation or reasoning as to why Buccaneer's proposed

project was neither essential nor desirable to the public

welfare, or how the project was detrimental to the small town

character of the neighborhood, or what aspects of the project

would be detrimental to adjacent uses.   "When a decision

contains conclusions that do nothing more than repeat regulatory

phrases, and are unsupported by any facts in the record, we are

constrained to conclude that the decision is 'unreasonable,

whimsical, capricious or arbitrary,' and therefore invalid."

Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of

Appeal of Billerica, 454 Mass. 374, 386 (2009) (Wendy's),

quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429

Mass. 478, 486 (1999).   That, in my view, is the correct

assessment of the record and the necessary conclusion in this

case.

    Other reasons offered by the board for denying Buccaneer's

special permit stand in direct conflict with the specific

findings of the trial judge.   For example, as the majority

acknowledges, one member of the board stated that the project

was "unduly dense."   The trial judge, however, specifically
                                                                   4


found that "the density of the proposed project is well within

the requirements . . . and were density the only issue herein,

there would be no basis for denying the special permit."

    Even accepting, as I do, the "'peculiar' combination of de

novo and deferential analyses," Wendy's, 454 Mass. at 381,

involved in the lower court's review of the board's decision, it

seems apparent, on this record, that the trial judge gave far

too much deference to the board's conclusions.   As previously

noted, there is an antidevelopment flavor to the board's

decision.   From all that appears, the reasons provided by the

board, unsupported by the evidence, and summarily accepted by

the majority, could be read simply to indicate that the board

preferred that the land at issue remain undeveloped.   Given the

speculative nature of the board's rationale, it appears that the

trial judge could have, and in my view, was indeed required to,

conduct a more exhaustive review of the facts behind the board's

stated reasons for denying Buccaneer's application for a special

permit.

    That is indeed why we have the important judicial function

of review under G. L. c. 40A, § 17, so that a trial judge may

make independent findings of fact, and then determine whether

"the reasons given by the board [had a] 'substantial basis in

fact,' [or were, on the contrary,] 'mere pretexts for arbitrary

action or veils for reasons not related to the purposes of the
                                                                   5


zoning law.'"   Shirley Wayside Ltd. Partnership v. Board of

Appeals of Shirley, 461 Mass. 469, 475 (2012), quoting from

Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App.

Ct. 308, 312 (1973).

     I add that the board's arbitrary denial of Buccaneer's

special permit, in my view, reflects the as-applied vague and

standardless nature of the by-laws at issue.   "[L]ocal by-laws

must provide adequate standards for the guidance of the board in

deciding whether to grant or withhold special permits."   Josephs

v. Board of Appeals of Brookline, 362 Mass. 290, 294 (1972).

     Finally, I find troublesome the summary manner in which the

Housing Court judge, i.e., trial judge, sitting by special cross

designation, adopted her prior findings, word for word, without

conducting any further hearing in the permit session of the Land

Court.   Buccaneer expressly reserved objection to the Housing

Court retaining jurisdiction, with the same judge sitting as the

presiding trial judge on remand from this court in Buccaneer

Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct.

40 (2012).1

     It may be that this cross designation procedure between the

Housing Court and the permit session of the Land Court, as in


     1
       Having preserved this jurisdictional challenge, to be
noted is that Buccaneer did then agree to have the case
presented on the extant record -- not an unreasonable litigation
strategy, I think.
                                                                    6


this case, is an emerging intra-court development.    See Skawski

v. Greenfield Investors Property Dev., LLC, 87 Mass. App. Ct.

903, further appellate review granted, 472 Mass. 1103 (2015)

(holding that, under G. L. c. 185, § 3A, the Housing Court

lacked subject matter jurisdiction over the abutters' G. L.

c. 40A appeal from the grant of a special permit in a case where

the Housing Court judge [coincidentally, the same Housing Court

judge as in the instant Buccaneer appeal] sought to have the

case administratively transferred from the Housing Court to the

Superior Court and also requested cross designation and

assignment to the case).

     It may be that adopting this practice as a common

procedure, designating the Housing Court judge who had initially

tried the case, to sit as a special justice in the permit

session of the Land Court, is an appropriate common Trial Court

transfer vehicle.   Or, it may be that such cross designation

should be an exceptional mode for litigation in the permit

session of the Land Court.   To be considered perhaps is the

specialized judicial function of the Land Court permit session

and the clear legislative intent in G. L. c. 185, § 3A, to grant

original jurisdiction over these matters only to the permit

session of the Land Court or the Superior Court.2    These are


     2
       A number of errors occurred in the handling of this case,
which are troubling. (a) The docket. The final judgment states
                                                                     7


court administration issues which may be beyond the scope of

this dissent.   And, the standards for this kind of cross

designation might be appropriate for review in the Supreme

Judicial Court under G. L. c. 211, § 3.   But, I emphasize that

Buccaneer did preserve its jurisdictional objection.   See note

1, supra, and accompanying text.

    The majority ultimately determines, see ante at         , that

what was, in effect, a "veto" of Buccaneer's special permit is


that it was entered on April 8, 2014, but the docket provided to
us shows an entry on April 4, 2014, "entering new judgment." No
document has been provided to us that would correspond to a
judgment entered on April 4. (b) The decision on appeal. In
her 2010 decision, sitting in the Housing Court, the trial judge
correctly noted that, while the case originally also involved an
appeal from the planning board of Lenox's denial of an
application for a special permit under a different section of
the by-law, "[t]hat aspect of the dispute has been
resolved . . . and is not . . . before the court." But,
inexplicably, in 2013, sitting by designation in the permit
session of the Land Court, in an order for judgment, the judge
stated (erroneously), "In reviewing the record, it appears that
the parties, this court, and the Appeals Court have all, at
various times, misidentified the defendant as the Zoning Board
of Appeals. The original pleadings and docket make clear,
however, that the named defendants are the Planning Board for
the Town of Lenox, and the members thereof. Any references to
the defendant as the Zoning Board of Appeals are hereby
corrected as scrivener's errors." The judge's 2013 error was
carried forward to the final judgment, from which Buccaneer
purports to appeal, and which states, "Judgment shall enter in
favor of the defendants, affirming the decision of the Planning
Board for the Town of Lenox dated December 21, 2007, which
denied a special permit to the plaintiff Buccaneer Development,
Inc." In fact, Buccaneer did not pursue an appeal from the
planning board's decision, which, in any event, does not appear
in the record appendix. We have corrected the judge's error in
our disposition of this case. See "Conclusion" and note 5,
ante.
                                                                    8


saved because there was a finding of some sort of "tipping

point," calibrated by the judge after a view of the subject

property.   The majority quotes as follows:

     "[T]here now exists 23 acres of open land, abutting 68
     acres of similarly open land immediately to the north; the
     overall impression is one of open space, pasture, and
     indigenous vegetation. Were the project to go forward,
     there would be 23 single family homes, similar in
     appearance, clustered around a parkway in a manicured
     setting. . . . [F]rom the perspective of the immediate
     neighborhood, the Buc[c]aneer project would represent a[]
     substantial change in the appearance and 'feel' of the
     area. At some point, development in an area reaches a
     'tipping point;' the fact that past development has not
     been viewed as incompatible with the neighborhood does not
     mean that incremental additional development must always be
     viewed similarly." (Emphasis supplied.)

Ibid.   The problem with this purported "tipping point"-based

analysis is that it is nothing more nor less than a wholly

subjective commentary by the G. L. c. 40A reviewing judge that

Buccaneer's project would alter the "feel" of the surrounding

area.   Indeed, the vagary of the word "feel" only reinforces the

entirely subjective analysis here, which is not grounded in

zoning law or the requirements of G. L. c. 40A review.    What

does it mean to "feel" a project is not too dense in an area,

or, conversely, to "feel" a development project is too dense?

What we have here, at the end of the day, is a "tipping

point"/"feel."   My research has discovered no other case under

G. L. c. 40A in which the words "tipping point" or "feel"

govern.   If the future of special permit reviews were to turn on
                                                                 9


such inchoate expression, then G. L. c. 40A appeal and review

would be standardless and virtually meaningless to the special

permit applicant.

    For the foregoing reasons, I would vacate the judgment and

remand this matter once again to the Land Court, for an

independent review of the board's decision denying Buccaneer's

application for a special permit.
