Sedell v. Zoning Board of Appeals
Sedell v. Zoning Board of Appeals
Opinion of the Court
The plaintiffs own a small strip mall in Carver, where they operate a pharmacy. They wished to sell wine and beer from a currently vacant store area in the strip mall, and sought a special permit from the zoning board of appeals of Carver (board). Relying largely upon the proximity of the site to several schools and a day care center, the board denied the special permit. On appeal pursuant to G. L. c. 40A, § 17,
Background. We recite pertinent facts as found by the judge after trial. The plaintiffs own a small strip mall on a rural portion of Route 58 in Carver, where they operate a pharmacy. The strip mall consists of two buildings and a parking lot. The main building contains the plaintiffs’ pharmacy on one end, a vacant store area in the middle, and a child day care center on the other end. The plaintiffs planned to use the vacant space for a beer and wine store which would be connected to the pharmacy as a one-stop shopping center.
The other building in the strip mall was vacant at the time of trial, but the plaintiffs had entered into an agreement to lease the building to a small special needs school. Across the highway were two Carver town schools, a primary school and an elementary school. The pharmacy sold items of interest to children, although the highway lacked traffic lights or crosswalks to facilitate foot traffic from the schools.
In its first decision, the board relied upon the proximity of the schools and the day care center and concluded that the strip mall “would be an inappropriate location for additional beer and wine sales.” The board also dismissed any possible benefits to the community, as several full service package stores already were located on the highway.
The trial judge disagreed and determined, in what he characterized as a factual finding, that the proposed use would have
On remand, the board conducted another hearing and issued another decision, largely echoing the reasoning of its previous
Discussion. On appeal from the decisions of the board, “the court was required to engage in a process that was in part deferential to the board and in part not.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72 (2003). The judge must “find the facts de novo and give no weight to those the board has found” and “must affirm the board’s decision unless it finds that denial of the application was ‘based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.’ ” Ibid., quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). As we explained in Britton, the judicial review typically involves two inquiries. The first requires a legal analysis of whether the board’s decision was based on a “standard, criterion, or consideration not permitted by the applicable statutes or by-laws”; in other words, whether it was based on a “legally untenable ground.” Id. at 73. The second inquiry is much more deferential than the first, and requires the court to determine whether any “rational view of the facts the court has found supports the board’s conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law.” Id. at 75.
As to the first inquiry, in both of its decisions the board relied upon the proximity of the schools and the day care center to the proposed beer and wine store as a reason for denying the permit, apparently viewing it as a detrimental impact. This was a proper consideration for the board. Section 5330 of the Carver zoning by-law requires the board to consider the “particular characteristics of the site, and of the proposal in relation to that
Having established that the board applied a proper standard, we consider whether any rational view of the facts found by the District Court judge supported the board’s determination that the benefits of the proposed use did not outweigh its detrimental impacts on the town and the neighborhood. We consider the factual findings in both the first and the second decision of the District Court judge. We first address the judge’s “finding” in his first decision that the proposed use would have no detrimental impact on the town. Despite the characterization used by the judge, this was not a finding of fact; it was a conclusion based on (or, in this case, notwithstanding) the factual finding that there were schools nearby. By concluding in his first decision that there was no detriment despite the existence of facts which could support the opposite conclusion, the judge “effectively [did] strip the board of its discretionary power of denial.” Britton v. Zoning Bd. of Appeals of Gloucester, supra at 74 n.7.
Upon consideration of the remaining factual findings, we conclude, as did the judge ultimately, that they support the board’s denial of the special permit. The proposed beer and wine store would be located in the same small strip mall as a special needs school for teenagers and a day care facility. It would also be across the street from a primary school and an elementary school. Additionally, the pharmacy adjacent to the proposed location sells items of interest to children.
Given our conclusion that neither of the board’s decisions rested upon a legally untenable ground, we need not consider the plaintiffs’ argument that the judge should have ordered the board to grant the permit in his first decision.
Judgment affirmed.
An earlier denial by the board resulting in a stipulated remand is not at issue here.
The judge referred in his decision to the special needs school that, by the time of trial, had been approved to open in the strip mall. The special needs school was not considered by the board in its first decision.
The key governing sections of the Carver zoning by-law read as follows:
“5330. Criteria. Special permits may be granted by the [board] upon its written determination that benefits of the proposed use outweigh its detrimental impacts on the town and the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any criteria set forth in specific provisions of this by-law, the determination shall include consideration of each of the following:
“5331. Social, economic, or community needs which are served by the proposal;
“5332. Traffic flow and safety, including parking and loading;
“5333. Adequacy of utilities and other public services;
“5334. Neighborhood character and social structures;
“5335. Impacts on the natural environment;
“5336. Potential fiscal impact, including impact on town services, tax base, and employment.”
This is made all the more clear by the judge’s adoption of the expert witness’s testimony that the proposed use would have no detrimental impact on the schools. Expert witnesses generally testify to opinion, not fact.
Although the judge discounted the likelihood that children would be in the store unsupervised, “it is ‘the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling.’ ” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. at 76, quoting from Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.