Raymond Breton, Inc. v. Planning Bd. of Palmer

• Citation: 182 N.E.3d 347 (Table),100 Mass.App.Ct. 1126
• Decision Date: 24 February 2022
• Docket Number: 20-P-1426
• Parties: RAYMOND BRETON, INC. v. PLANNING BOARD OF PALMER.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1126

182 N.E.3d 347 (Table)

RAYMOND BRETON, INC.¹

v.PLANNING BOARD OF PALMER.

20-P-1426

Appeals Court of Massachusetts.

Entered: February 24, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Raymond Breton, Inc. (Breton), filed a special permit application with the planning board for the town of Palmer (board), seeking approval for vehicular access to a site on which Breton proposed to conduct earth removal operations. The board found that Breton failed to satisfy several requirements of Palmer's zoning ordinance and denied the application. On review under G. L. c. 40A, § 17, a Superior Court judge upheld the board's decision. Breton appeals, arguing principally that the judge's findings do not provide a substantial basis for denying the application. We affirm.

Background. The following facts are undisputed. The proposed project would be in operation for twenty-two years and would remove approximately 2.8 million cubic yards of gravel from seventy-two acres of undeveloped wooded land in Palmer. The project site is in a rural residential/agricultural zoning district, and all the abutting properties are residential. The "[a]rea residents use their properties in the manner one would expect in a rural, residential area, including spending time in their yards."

In the application at issue,³ Breton sought a special permit for vehicular access to the site via Boston Road, which "is a main road with light to moderate traffic including some commercial vehicles." To connect the site to Boston Road, Breton proposed constructing a driveway that would run off of Boston Road between two abutting properties; these homes would be less than 200 feet from the driveway. The driveway would first run 300 feet away from Boston Road and parallel to the boundaries of both properties, then turn south and run 200 feet along the rear of one of the properties, before turning again and running 1,200 feet uphill toward the gravel removal site. Breton estimated that the trucks accessing the driveway would make forty-eight trips each weekday, traveling at around twenty miles per hour.

The board held a public hearing on the application, at which the abutters and other residents expressed numerous concerns about the project, including the impacts that the noise, diesel fumes, and vibrations from the trucks would have on neighboring properties. At the close of the hearing, the board denied the application on the ground that it failed to satisfy several subsections of the pertinent section of the zoning ordinance. Breton appealed, and, after a bench trial, the judge concluded that the board's decision was not based on a legally untenable ground and that the evidence supported the denial of the application.

Discussion. On judicial review under G. L. c. 40A, § 17, a judge must first determine whether the board's decision was based on " ‘a legally untenable ground,’ or, stated in a less conclusory form, on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003). It is uncontested here that the board applied legally permissible criteria. The question then is whether, "on the basis of the facts [the judge] has found," it can be said that the board applied those criteria "in an ‘unreasonable, whimsical, capricious or arbitrary’ manner." Id. at 74. This is a highly deferential standard, under which the board's denial of an application will not be disturbed except in those "rarely encountered" situations "where no rational view of the facts the [judge] has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria." Id. at 74-75. In addition, on appellate review, we will not set aside the judge's factual findings absent a showing of clear error. See Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).

We conclude that, on the facts the judge found, he correctly upheld the board's denial of the application. As an initial matter, we agree with the board's contention that Breton's failure to address all of the grounds cited in the board's decision is fatal to its appeal. As Breton acknowledged at oral argument, if there is at least one "valid basis for the board's denial of the permit, its other reasons for the action become immaterial." S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 359 (1976). While Breton challenges the factual underpinnings for the board's concerns relative to noise, diesel fumes, and vibrations, these were not the only bases for the denial. The board also concluded that Breton did not satisfy several other requirements of the zoning ordinance, including that "[t]he requested use will be harmonious with the appropriate and orderly development of the zoning district," "harmonious with the visual character of the neighborhood," and not "unduly impair the integrity and character of the [zoning] district."

We do not agree that, in citing these concerns, the board was merely parroting general regulatory language, as Breton argues. The board explained that it "had to consider the effects of this access road and its primary use upon the other current major land users in this area of town." The board conducted that analysis and found that the area "is rural and residential in nature," "[t]here are no...