Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 17-P-174 Appeals Court WILLIAM A. BRUNO, trustee,[1] & another[2] vs. ZONING BOARD OF APPEALS OF TISBURY & others.[3] No. 17-P-174. Suffolk. November 9, 2017. – March 19, 2018. Present: Meade, Shin, & Ditkoff, JJ. Subdivision Control, Approval not required, Zoning requirements. Zoning, Enforcement, Nonconforming use or structure. Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations. Limitations, Statute of. Civil action commenced in the Land Court Department on May 2, 2014. The case was heard by Gordon H. Piper, J., on motions for summary judgment. Douglas A. Troyer for the plaintiffs. Howard M. Miller for Samuel Goethals & another. Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury. DITKOFF, J. The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos’ request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals). The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot. We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan. As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board. Background. The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury. The Goethals’ property (Lot 1) and the Brunos’ property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930’s. The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960. In 1978, the planning board of Tisbury […]
Koines, et al. v. Zoning Board of Appeals of Cohasset, et al. (Lawyers Weekly No. 11-014-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-678 Appeals Court ALEXANDER C. KOINES & another[1] vs. ZONING BOARD OF APPEALS OF COHASSET & others.[2] No. 16-P-678. February 21, 2017. Zoning, Nonconforming use or structure, Lot size, Exemption, Judicial review. Real Property, Merger. The plaintiffs appeal from a judgment of the Land Court that affirmed a decision of the defendant zoning board of appeals of Cohasset (board) based on a conclusion that the board correctly interpreted the Cohasset zoning by-law to afford grandfather protection to a lot owned by the defendants John and Martha Shaw. We affirm. At issue in the case is section 8.3.2(c) of the by-law, the language of which is set out in the margin.[3] The Shaws’ lot, containing approximately 21,850 square feet, is located in an R-C district in which the minimum lot size is 60,000 square feet. The current minimum lot size results from an increase enacted by amendment to the by-law in 1985, at a time when the Shaws’ lot was held in common ownership with several parcels of adjacent land. The lot accordingly plainly meets the literal linguistic requirements of the second portion of section 8.3.2(c) as applicable to lots in the R-C district. The plaintiffs nonetheless contend that the board erroneously interpreted the by-law to afford grandfather protection to the lot by virtue of the common law doctrine of merger. Under that doctrine, a lot held in separate ownership at the time an increase in area renders it nonconforming and thereby entitled to grandfather protection under the fourth paragraph of G. L. c. 40A, § 6, loses grandfather protection if it thereafter comes into common ownership with adjoining land. See Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 243 (2001). As the plaintiffs observe, this court reached its conclusion in Preston despite the fact that the lot at issue met the literal linguistic requirements set forth in the statute, resting its conclusion on the fact that the Legislature, though presumptively aware of the preexisting and well-established merger doctrine at the time it enacted § 6, did not evince a clear intent to alter the common law. See id. at 240, 243. The present case stands differently since we are presented with an enactment of the Cohasset town meeting, construed by the local zoning board of appeals […]
Furlong, et al. v. Zoning Board of Appeals of Salem, et al.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1174 Appeals Court MICHAEL F. FURLONG & another[1] vs. ZONING BOARD OF APPEALS OF SALEM & another.[2] No. 15-P-1174. Suffolk. October 7, 2016. – December 12, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Zoning, Variance, Setback. Practice, Civil, Zoning appeal. Civil action commenced in the Land Court Department on February 17, 2012. The case was heard by Robert B. Foster, J. Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs. Leonard F. Femino for BHCM Inc. BLAKE, J. The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court. Following a jury-waived trial, the judge affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance. We agree and affirm. Background. We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrectangular parcel of property[3] with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1,500 square foot temporary Quonset hut located in the center of the property, a small dock house, and a “marine travel lift” hoist (travel lift). As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance. The proposed building would serve as the marina’s boat repair facility, allowing the removal of the Quonset […]
Zoning Board of Appeals of Hanover v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-110-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-893 Appeals Court ZONING BOARD OF APPEALS OF HANOVER vs. HOUSING APPEALS COMMITTEE & another.[1] No. 15-P-893. Plymouth. May 9, 2016. – August 29, 2016. Present: Agnes, Massing, & Kinder, JJ. Housing. Zoning, Housing appeals committee, Comprehensive permit, Low and moderate income housing. Administrative Law, Agency’s interpretation of regulation, Regulations. Municipal Corporations, Fees. Civil action commenced in the Superior Court Department on March 11, 2014. The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings. Jonathan D. Witten (Barbara M. Huggins with him) for the plaintiff. Paul N. Barbadoro for Hanover Woods, LLC. Bryan F. Bertram, Assistant Attorney General, for Housing Appeals Committee. MASSING, J. Defendant Hanover Woods, LLC (developer), filed an application with the plaintiff zoning board of appeals of Hanover (board) for a comprehensive permit to build a 152-unit mixed-income housing project. Considering the board’s filing fee to be unreasonable, however, the developer paid only what it unilaterally determined to be a reasonable filing fee. Deeming the application incomplete, the board did not accept it for filing. By the time the developer paid the remainder of the fee, six weeks later, the town had qualified for a safe harbor under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), effectively giving the board unreviewable discretion to deny the developer’s permit. Nonetheless, the defendant Housing Appeals Committee (HAC) ultimately ordered the board to issue a comprehensive permit to the developer for a 200-unit project. The board appeals from a judgment of the Superior Court affirming the HAC’s order. Because we conclude that the HAC erred in determining that the developer’s application was complete on the date of its incomplete submission, rather than on the date the filing fee was paid in full, we reverse. Background. On October 22, 2009, the developer filed an application for a comprehensive permit for a project to be called Woodland Village, consisting of 152 units to be offered for sale, as well as parking spaces and other site improvements on a twenty-four acre parcel of land in Hanover (town). Thirty-eight of the units, or twenty-five percent, were designated to be affordable units. Under the board’s fee schedule, the filing fee for a project of that size was $ 250 per housing unit, or $ 38,000. […]
Tusino v. Zoning Board of Appeals of Douglas, et al. (and a companion case) (Lawyers Weekly No. 11-107-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1400 Appeals Court 14-P-1193 LOUIS C. TUSINO vs. ZONING BOARD OF APPEALS OF DOUGLAS & another[1] (and a companion case[2]). Nos. 15-P-1400 & 14-P-1193. Worcester. June 3, 2016. – August 25, 2016. Present: Vuono, Wolohojian, & Blake, JJ. Jurisdiction, Zoning. District Court, Jurisdiction, Appellate Division. Zoning, Appeal. Appeals Court, Jurisdiction. Practice, Civil, Zoning appeal, Appellate Division: appeal, Action in nature of mandamus, Moot case. Mandamus. Moot Question. Civil action commenced in the Uxbridge Division of the District Court Department on December 8, 2014. The case was heard by David B. Locke, J., on a motion for summary judgment. Civil action commenced in the Land Court Department on August 21, 2009. The case was heard by Robert B. Foster, J., on a motion for summary judgment. Gerald E. Shugrue for Louis C. Tusino. Henry J. Lane for Joseph Bylinski. Michael J. Kennefick for building commissioner of the town of Douglas, & another. WOLOHOJIAN, J. These two cases arise out of the construction of a house on a nonconforming lot in Douglas. The dispositive issue on appeal is whether we have jurisdiction over a direct appeal from a decision of the Uxbridge District Court in a zoning appeal under G. L. c. 40A, § 17. Concluding that we do not, we dismiss Tusino v. Zoning Board of Appeals of Douglas, 2015-P-1400 (zoning appeal). Because our disposition of this case renders moot Bylinski v. Guaranteed Builders, Inc., 14-P-1193 (mandamus appeal), we dismiss it as well. On July 8, 2008, Tusino obtained a building permit to build a house on a lot he owns in Douglas. Construction began in February, 2009, and Bylinski, who owns the adjacent property, immediately thereafter asked the building commissioner to revoke the permit. The commissioner denied that request, and Bylinski appealed to the zoning board (board). The appeal was constructively allowed, and the building permit was revoked. On appeal, the Superior Court affirmed the revocation of the permit. Tusino did not further appeal, and the Superior Court’s decision became final. Tusino thereafter applied to the board for a variance. This too was denied. He appealed the denial to the Land Court, which entered summary judgment against him. On February 21, 2014, in a memorandum and order issued pursuant to our rule 1:28, we affirmed the […]
311 West Broadway LLC v. Zoning Board of Appeal of Boston, et al. (Lawyers Weekly No. 11-106-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1227 Appeals Court 311 WEST BROADWAY LLC vs. ZONING BOARD OF APPEAL OF BOSTON & others.[1] No. 15-P-1227. Suffolk. May 13, 2016. – August 23, 2016. Present: Katzmann, Carhart, & Sullivan, JJ. Zoning, Variance, Appeal, Jurisdiction. Jurisdiction, Superior Court, Zoning. Superior Court, Jurisdiction. Civil action commenced in the Superior Court Department on June 13, 2013. A motion to dismiss was heard by Brian A. Davis, J., and a motion to file an amended complaint was also heard by him. Edward J. Lonergan for 311 West Broadway LLC. Kate Moran Carter for Bromfield Development LLC. Adam Cederbaum for zoning board of appeal of Boston. KATZMANN, J. The plaintiff, 311 West Broadway, LLC (311 West Broadway), appeals from a judgment of the Superior Court dismissing its pending appeal pursuant to the Boston zoning enabling act, St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5 (zoning act), from a decision of the defendant zoning board of appeal of Boston (board) in favor of the defendant Bromfield Development, LLC (Bromfield), in the wake of a new decision issued by the board after an assented-to, judicially-ordered remand. The Superior Court had gained jurisdiction when an appeal was filed from the initial decision of the board, the parties agreed after the filing of that appeal to a judicial remand, the order of remand created no scheduling deadlines for the parties, and the parties provided status reports to a judge regarding the proceedings before the board and the further Superior Court litigation that they contemplated following the board’s new decision. 311 West Broadway did not file an appeal from the new decision of the board, and the question is whether the court was deprived of jurisdiction because a new appeal was required. We conclude that, in the circumstances here, a new appeal was not required and the court was not divested of jurisdiction. We reverse. Background.[2] 311 West Broadway owns property at 311-313 West Broadway in the South Boston section of Boston that abuts property owned by Bromfield at 315-319 West Broadway. Starting in 2012, Bromfield sought approval to change the occupancy of its property from a fitness center and private club to a fitness center, offices, and residential units, and to build a new four-story vertical addition over its […]
Picard v. Zoning Board of Appeals of Westminster, et al. (Lwyers Weekly No. 10-085-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11991 MAURICE PICARD, personal representative,[1] vs. ZONING BOARD OF APPEALS OF WESTMINSTER & another.[2] Worcester. February 9, 2016. – June 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Zoning, Person aggrieved. Practice, Civil, Standing. Easement. Real Property, Easement, Beach. Beach. Civil action commenced in the Superior Court Department on August 23, 2011. The case was heard by Robert B. Gordon, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas M. Bovenzi for 3333, Inc. Peter A. CampoBasso for the plaintiff. CORDY, J. Is a claimed injury to a private easement right sufficient to confer standing to challenge a zoning determination made by a zoning board of appeals? In the circumstances of this case, we conclude that it is not. Maurice Picard, as the personal representative of his wife’s estate, commenced this action in the Superior Court after the zoning board of appeals of Westminster (zoning board) upheld the building commissioner’s determination that property abutting his, owned by the defendant, 3333, Inc., enjoyed grandfathered status under the Westminster zoning by-law. After a bench trial, a judge in the Superior Court dismissed Picard’s complaint for lack of standing. The Appeals Court, in an unpublished decision pursuant to its rule 1:28, reversed the judgment as to standing and concluded that the property in question did not enjoy grandfathered status under the Westminster zoning by-law. Picard v. Zoning Bd. of Appeals of Westminster, 87 Mass. App. Ct. 1125 (2015). We granted further appellate review, limited to the standing issue. We affirm the judgment of the Superior Court. Background. The trial judge found the following facts, which we occasionally supplement with undisputed facts from the record. See Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (on appellate review, judge’s factual findings will not be set aside unless clearly erroneous or unless there is no evidence to support them). Picard is the owner and occupant of certain property on Laurie Lane in Westminster (town). Picard’s property is identified as lots 34 and 43 on a plan referred to by the judge as the “Laurie Lane Plan.” The deed that conveyed the property to Picard’s late spouse also contained within it […]
Chiaraluce v. Zoning Board of Wareham (and a consolidated case) (Lawyers Weekly No. 11-040-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-328 Appeals Court JOSEPH H. CHIARALUCE, trustee,[1] vs. ZONING BOARD OF APPEALS OF WAREHAM (and a consolidated case[2]). No. 15-P-328. Suffolk. January 7, 2016. – April 8, 2016. Present: Hanlon, Sullivan, & Maldonado, JJ. Zoning, Nonconforming use or structure, By-law. Civil actions commenced in the Land Court Department on July 21 and July 25, 2011. The cases were heard by Gordon H. Piper, J. Richard M. Serkey for Joseph H. Chiaraluce. Mark J. Lanza for Denise R. DePedro. SULLIVAN, J. Joseph H. Chiaraluce, trustee of the Chiaraluce Realty Trust (trust), appeals from a judgment of the Land Court in a consolidated action, which determined that the trust was not entitled to a building permit for its Wareham lot (locus). A judge of the Land Court concluded that the right to rebuild the nonconforming residential structure that once occupied the lot had been abandoned as a matter of law. We affirm. Background. We accept the facts as found by the trial judge, unless they are clearly erroneous, Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 523 (2008), and “do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge’s findings.” Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). The locus, the subject of numerous efforts to build, is comprised of 7,012 square feet in a residential district that has a current minimum lot size requirement of 30,000 square feet. It has no street frontage and is accessible from the street over a twelve-foot-wide right of way. Olaf, Lorraine, and Laurence Olsen (the Olsens) purchased the locus in 1971 for $ 16,000, at which time it was improved with a residential cottage ten feet in height, twenty feet in length, and thirty feet in width, with a gross living area of 600 square feet. In August of 1991, Hurricane Bob damaged the cottage, forcing it off its cement block foundation and separating the porch from the cottage. Thereafter, in September, 1991, the Olsens dismantled and removed the cottage from the locus. Wareham’s zoning board of appeals (ZBA or board) granted a “blanket” special permit for reconstruction of residences damaged by Hurricane Bob. Although the Olsens obtained such a permit in March of 1992 […]
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Reynolds v. Zoning Board of Appeals of Stow, et al. (Lawyers Weekly No. 11-144-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-663 Appeals Court GREGORY REYNOLDS vs. ZONING BOARD OF APPEALS OF STOW & another.[1] No. 14-P-663. Middlesex. January 13, 2015. – September 15, 2015. Present: Trainor, Vuono, Hanlon, JJ. Housing. Zoning, Board of appeals: decision; Low and moderate income housing; Comprehensive permit. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on November 23, 2010. The case was heard by Kenneth W. Salinger, J. Dennis A. Murphy (Daniel C. Hill with him) for the plaintiff. David S. Weiss (Elizabeth Levine with him) for Stow Elderly Housing Corporation. Barbara Huggins for zoning board of appeals of Stow. TRAINOR, J. The plaintiff appeals from a Superior Court judgment affirming a comprehensive permit issued pursuant to the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (Act), by the zoning board of appeals (board) of Stow (town) to the Stow Elderly Housing Corporation (SEHC) for the construction of a low and moderate income elderly housing project. The plaintiff, a southeast abutter of the locus, contended, among other things, that the private wells on his and his neighbors’ properties will have elevated nitrogen levels due to the discharge into the waste disposal system designed for the locus and, therefore, it was unreasonable for the board to waive certain waste disposal limitations contained in the town bylaw. Stow, Mass., Zoning Bylaw (including amendments through May 3, 2010) (bylaw). For the reasons set forth below, we reverse. 1. Background. a. Stow Elderly Housing Corporation and Plantation I. SEHC is a nonprofit corporation founded in 1981 for the primary purpose of developing, owning, and operating affordable housing. In 1983, SEHC obtained a comprehensive permit under the Act to construct Plantation Apartments I (Plantation I), a fifty-unit low-income senior apartment complex on a lot that is adjacent to the locus. Plantation I is served by a private well and a private septic system on the property. Although SEHC was the original owner and developer of Plantation I, in 2004, it transferred ownership of the buildings and granted a long-term lease of the land to Plantation Apartments Limited Partnership, while retaining the fee in the land. SEHC owns and controls the limited partnership’s general partner, and was the initial limited partner.[2] b. Plan for the locus. SEHC is under agreement to purchase an approximately two and one-half acre lot (locus) […]
Buccaneer Development, Inc. v. Zoning Board of Review of Appeals of Lenox (Lawyers Weekly No. 11-105-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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. 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 […]