EDWARD M. STIVALETTA vs. ZONING BOARD OF APPEALS OF MEDFIELD.

EDWARD M. STIVALETTA vs. ZONING BOARD OF APPEALS OF MEDFIELD.

12 Mass. App. Ct. 994

December 15, 1981

At the trial in the Superior Court of the plaintiff's appeal from the board's denial of his application for a special permit to do construction work in a watershed protection district, there was confusion between the parties concerning the extent to which the plaintiff's proposed use of fill might meet the requirements of Sections 11.5.1 through 11.5.4 of the Medfield zoning by-law. The judge remanded the matter to the board for further proceedings and specific findings on that issue. The board again denied the permit. Upon the renewal of proceedings in the Superior Court, the only evidence presented by the plaintiff was his testimony to the effect that the board should have formulated and imposed conditions on a permit, rather than denying it. See MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 518-520 (1976). The judge concluded that the board had not exceeded its authority. Because the plaintiff had offered no evidence in the trial court on whether he had complied with the preconditions for a special permit required by the zoning by-law, the judge made no findings of fact. We affirm.

1. "[T]he board has the power to deny a permit as long as its decision is neither based on a legally untenable ground, nor is unreasonable, whimsical, capricious or arbitrary." S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477 , 481 (1980). See also Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-560 (1954); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 487-488 (1979). The board made detailed and specific findings upon which it grounded its denial, including its points of disagreement with the testimony of the plaintiff's expert witness, an engineer. One of the board's ultimate findings reads: "The health and safety of the occupants of the dwelling proposed at the locus will be endangered because the applicant proposes construction which does not meet with [the] requirements of Section 11.5.1.1, and 11.5.1.3 . . . in that he does not propose to elevate either the dwelling, the top of the foundation or the driveway in the manner required for construction within the Watershed Protection." The plaintiff's testimony, which was to the effect that the board should have imposed conditions and safeguards on the permit, hardly satisfied his burden of demonstrating that his proposed use would not endanger the health and safety of the district's residents or other land within the district. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977). Subaru of New England. Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. at 487-488. Nor did it make a dent in the board's findings that the plaintiff had not satisfied the qualifying criteria for a permit which appeared in Sections 11.5.1.1. and 11.5.1.3 of the by-law. The board, therefore, was without authority to grant the plaintiff the special permit he had requested.

2. Under the Medfield by-law the board can issue a special permit for construction work in a watershed protection district "only if it finds that

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the use of the premises will not endanger the health or safety of the occupants thereof or of other land in the Watershed Protection District," as well as making other specifically required affirmative findings. Because the board could not make a number of these mandated findings, it concluded that it was "powerless to grant" the permit. Even if the board possessed the authority under the by-law to grant exceptions or to impose conditions, but declined to exercise its discretionary power, see MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 638 (1970), and Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. at 156-157, we would not view this as one of those "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. Compare MacGibbon v. Board of Appeals of Duxbury, 369 Mass. at 518-520.

Judgment affirmed.