Loading...
HomeMy WebLinkAboutMiscellaneous - 731 Chestnut Street (2)t� I� • KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MASSACHUSETTS 02110 DONALD G. PAIGE ELIZABETH A. LANE - (617) 451.0750 JOYCEFRANK JOHN W. GIORGIO JOEL B. BARD JOEL A. BERNSTEIN RICHARD J. FALLON BARBARA J. SAINT ANDRE GEORGE M. MATTHEWS EVERETT J. MARDER JANE M. O'MALLEY KAREN V. KELLY DAVID L. GALLOGLY SONDRA M. KORMAN ANNE -MARIE M. HYLAND , January 19, 1989 Hon. Charles A. Salisbury and the Members of the Board of Selectmen North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Helen Kellner Vs. James Maynard Dear Members of the Board of Selectmen: Enclosed herewith is the decision of the Appeals Court in' the above referenced case. This is where the Board of Appeals granted the Defendant a special permit for variances. The Court dismissed the appeal of the Plaintiff. Enclosed is the Memorandum and Order since it is very complex. Very truly yours, Leonard Kopelman LK/sb Enclosure cc: Board of Appeals x COMMONWEALTH OF MASSACHUSETTS APPEALS COURT HELEN KELLNER VS. JAMES MAYNARD, trustee, & another. MEMORANDUM AND ORDER The plaintiff appealed to the Superior Court pursuant to G. L. c. 40A, § 17, from a decision of the Board of Appeals of North Andover granting the defendant Maynard (defendant) a special permit and four variances to remove an existing residence and construct a commercial day care center at a site located across the street from a single family dwelling owned by the plaintiff. Both the board and the defendant filed answers. The board filed a counterclaim against the plaintiff as well. The defendant moved to dismiss the complaint for failure to state a claim. The plaintiff opposed the motion with an affidavit, supporting documents, and a brief. Apparently without any objection to the procedure, a Superior Court judge indicated to the parties that he was construing the defendant's motion as a motion for summary judgment. He allowed the defendant's motion but took no action on the counterclaim. The plaintiff appeals from the judgment entered pursuant to the order allowing the defendant's motion. The defendant appeals from the refusal by the court below r to grant his motion that the plaintiff be required to post a bond and for sanctions to be assessed against the plaintiff. The counterclaims, although on their face they appear to lack merit, remain outstanding. As there have lbeeh no such determination and direction as are required by Mass.R.Civ.P. 54 (b), 365 Mass. 821 (1974), when there is an adjudication of fewer than all the claims, no judgment has yet been entered from which an appeal can be taken. New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 677-678 (1977). Bragdon v. Bradford O. Emerson, Inc., 19 Mass. App. Ct. 420, 421, 423 (1985). Since the appeals of both the plaintiff and defendant are 11 knot properly before us, we do no more than express our views on the issues raised by the parties. Beit v. Probate & Family Court Dept., 385 Mass. 854, 855 (1982). The principles governing judicial review under G. L. c. 40A, § 17, require that the matter under review be heard de novo and that the judge make his own findings ofl fact, independent of any findings of the board. "The judge is not confined to hearing only the evidence before the board . . . . 'The decision of the board is no more than the report of an administrative body and on appeal has no evidentiary weight.' '[T]he judge . . . is to . . . determine the legal validity of the decision of the board upon the facts found by him.'" (Citations omitted.) Prudential Ins. Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 282 n.7 (1986), and cases cited. -2- Entry of summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), based upon the materials before the judge, was erroneous. A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact and that he is `entitled to judgment as a matter of law. Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976). Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984). "The movant is held to a stringent standard . . . . [A]ny doubt as to the existence of a genuine issue of material fact will be resolved against [him]. Because the burden is on the movant, the evidence presented . . . always is construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences that can be drawn from it." 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727, at 124-125 (2d ed. 1983). The defendant submitted no affidavit in support of the motion to dismiss, which the judge treated as one for summary judgment. The plaintiff's affidavit and supporting documents raised material issues of fact as to the safety of the use of the locus as a day care center and the board's finding of hardship. We do not agree with the defendant's contention that the plaintiff could not have been found to be an aggrieved party. There is a presumption that property owners to whom the board is statutorily required to give notice are persons aggrieved. "If the issue is contested, and any additional evidence is offered, the -3- point of jurisdiction will be determined on all the evidence with no benefit to the plaintiffs from the presumption as such . . . . [T]he status of the property or of the plaintiffs may be such that the plaintiffs are not aggrieved even though the property is very near." (Citations omitted). Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 215 (1975). To be a person aggrieved, one must show "'some pecuniary interest . which is immediately or remotely affected by the determination appealed from." Carey v. Planning Bd. of Revere, 335 Mass. 740, 743-744 (1957). The plaintiff's property is located directly across the street from the locus. As a homeowner she would appear to have a legitimate interest in preserving the integrity of a residential district. See Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624, 629-630. (1977). The plaintiff's aggrievement, thus, is another issue which may be tried. As the appeal must be dismissed, there is no need for us to reach the question whether the court below had authority to require a bond or to assess sanctions. Appeal dismissed. By the Court (Brown, Dreben, & Fine, JJ.), Clerk J Entered: January 12, 1989. -4- RUDOLPH, ANDREWS & KRONER f Ationmys at Law SIXTY-FOUR CENTRAL STREET POST Orna Box 238. GEORGETOWN, MASSACHUSETTS 01833 ROIIF,RT P. Rum,ni ROHFRT E. ANDRF.Ws MITCHELL E. KRONER April 29, 1988 Clerk Essex Superior Court 34 Federal Street Salem, Massa,-:husetts 01970 Re: Kellner v. Maynard, etal Docket No. 87-42 Dear Clerk: TEunioNE (617) 352-8111, 352.6023 Enclosed please find Notice of Appeal and Certificate of Service of same in regard tot he above entitled matter for filing. Kindly file same. Thank you for your courtesy. RPR/kas Enclosure cc: John J. Willis, Jr., Esquire Domenic J. Scalise, Esquire COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. HELEN KELLNER, ) Plaintiff ) VS. ) JAMES P. MAYNARD, TRUSTEE ) etals, ) Defendant ) SUPERIOR COURT DOCKET NO.87-42 NOTICE OF APPEAL Notice is hereby given that Helen Kellner, Plaintiff above named hereby appeals to the Massachusetts Appeals Court from the Judgment on the Defendants' Motion to Dismiss dated April 12, 1988. Helen Kellner, Plaintiff By he ttorhey, WA obert P.- Rdd 1 h, Esquire UDOLPH, ANEWS 6 KRONER 64 Central Stre Georgetown, MA 01833 Tel: (617) 352-8111 CERTIFICATE OF SERVICE I, Robert P. Rudolph, attonrey for the Plaintiff in the foregoing action; certify that I have this day sent copies of the Notice of Appeal by mailing postage prepaid to John J. Willis, Jr., 160 Plea san -Street, No. Andover, MA 01845 and Domenic J. Scalise, 89 Main Stree , o... Ari Byer, MA 01845. Robert P. ud Iph Esquire RUDOLPH, ANDRE S S KRONER Dated: April 29, 1988 64 Central Street Georgetown, MA 01833 Tel: (617) 352-8111 RUDOLrii, Ammws & KRONER Affmnns of [Air CEORGE.TOWN. NIA 01833 Ess®x, es. COMMONWEALTH OF MASSACHUSETTS Department Of The Trial Court Helen Kellner v8. 6/__-------_ Superior Court No. 87-42 James P. Maynard, Trustee, at als This action came on for hearing before the Court, Flannery, J. presiding, and the issues having been duly heard and findings having been duly rendered, It is Ordered and Adjudged; that the plaintiff Helen Kellner take nothing, that the action be dismissed on the merits as to all defendants, Without oosts. The Clerk -Magistrate of the Court is directed to mail an attested copy of this judgment within thirty days from the date hereof, to the Town Clerk, Building Inspector, and Board of Appeals, respectively of the Town of'North Andover. Dated at Peabody, Massachusetts, this 13th day of April, 1988. l v:xl MT.�.. A 1' l[E COP ,ATTEST. EPUTY ASS CLERK 1�r 6ACOMMONWEALTH OF MASSACHUSETTS .�' . ESSEX, SS. SUPERIOR COURT CIVIL ACTION N0: 87-42 1. HELEN KELLNER, Plaintiff,' ' JAMES P. MAYNARD+ et al, Defendants MEMORANDUM OF DECISION AND'ORDER ON DEFENDANTS' MOTION TO DISMISS I.AACKGROUND j' The plaintiff, Helen Kellner, is appealing two decisions of the North Andover Board of Appeals ("the Board") granting a special permit for the use of property located between Chestnut Street, Mill Road and'Turnpike•Street in North.'Andover as a day care center, and granting several variances to accommodate the construction of a proposed building to house the -child care center. The defendants assert the validity of the Board's decisions and have filed a motion.to dismiss claiming that the plaintiff is not an aggrieved person within'the meaning.of.G.L. c.40A, S 17, andothat the plaintiff has failed:to produce evidence sufficient to enable this Court to find-that'the Board exceeded its authority when it granted defendant.-James..P...Maynard the special permit and variances requested. In her complaint, Helen Kellner states, that she is an abutter to the premises which were the.subject of the„special permit and 2 variances. She also states that the intersection'in front of the proposed use is a dangerous one, and the proposed use of'a child care center at the premises would create a serious safety problem. In addition, there is no substantial hardship to the owner of the subject property. Moreover, Helen Kellner states that the neighborhood residents, the Planning Board,'and the Town Planner all oppose the change in use. The opposition -also stems, in part, from the child care centerla':resultadt''inteiferende'with the proposed setback or buffer of,100''feet from the existing northerly boundary of Route 114 permitting future widening for a safer and more efficient traffic flow. II. DISCUSSION" ."In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a.claim unless it appears beyond doubt that the plaintiff can prove no sets of facts•in.support of his claim which would entitle him to relief. Furthermore, the allegations i of the complaint, as -well as'such inferences as` may.: be drawn-. therefrom in the plaintiff's favor, are to be taken as true ... [citations omitted] ". Bell'v. Mazza, 394 Mass. 176, 183 (1985). The defendants have raised certain.initial challenges to Kellner's right to maintain this action: MiG:Li'c:40A, § 17 / / 3 provides that "any person aggrieved" by'1a:decision of the,Board of Appeals may appeal to the Superior Court,,by;bringing a.civil action.. At the time.the Board.rendered,`fits.decisions, and when Helen Kellner brought this action, she was anabutterto the. subject property.. In her.complaint, she has -demonstrated a "legitimate interest" in the proceedings before,the Board.. Murray v. Board of Appeals of Barnstable, 22 Mass. App: Ct. 473, 476 (1986); Butts v. Zoning Board of Appeals of'Falmouth, 18 Mass. App. Ct. 249, 253 (1984). Thus, Kellner is an."aggrieved person" within the meaning of M.G.L. c.40A, § 17, and has standing in the present action. • The defendants also assert that Helen.Kellner has failed to state a claim upon which relief can be granted. -because she has failed to provide any facts to this Court upon which the decisions made by the Board can be set aside. The burden of proof is on Helen Kellner, as the person objecting to the board's decisions, to "convince the trier of fact that the board exceeded its authority and acted improperly." Strand v. Planning Board of Sudbury; 7 Mass. A-c°tr:.,. PP• Ct. 935, 936 (1979) . The general rule applicable -to the propriety.of a.decision by a special permit granting authority was set,forth.in, MacGibbon v. Board of Appeals of Duxbury, 356.Mass..-,635;(197.0): , Neither the Zoning Enabling Act nor ,the town,zoning by-. law gives the plaintiffs an abolute right to the special permit which they seek.. The board is not compelled to grant the permit.' It has discretionary • 4 power in acting thereon. " The board must act fairly and reasonably on the evidence presented to it, keeping in mind the objects and purposes of the enabling act and the by-law :• The,decision ofAhe board cannot be ' disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsicalp'capricious or - arbitrary. MacGibbon, 356 Mass. at 638-639. ,.. The granting of a special permit must be upheld'if it is for a use that is in harmony•with.the general purpose and intent of the ordinance or by-law, M.G.L. c AOA, §9;'and.thelother criteria enunciated in MacGibbon are satisfied;.? See Planning Board of Sandwich v. Board of Appeals of Sandwichi.15 Mass: App. Ct; 9011 971-972 (1983); Garvey v. Board of Appeals of Amherst, 9 Mass. APP. Ct. 809, 856 (1980). In its decision granting the special permit# the Board expressly found that the pertinent provisions.of the Zoning By-law have been satisfied, and the'relief granted does not nullify nor substantially derogate from the intent or -purpose of the Zoning By-law. They also expressly found that no significant problems or hazards would be created for,either vehicular,;or.pedestrian traffic by virtue of the proposed use, despite the testimony of residents to the.contrary. In addition. the,Board found that the proposed child care center is .the use most" n keeping with the use of the area. Moreover, the impact of the proposed design was found by the Board to be minimal and not hazardous or.detrimental to the area. The bases for their decision was also provided in / 5 detail. In her complaint,'Helen Kellner states.`that the proposed use of a child care center would create a serious,"safety problem at the intersection involved, that, no conditions or provisions were made regarding this problem, and that•various"individuals seriously oppose the change in use. She also claims that the Board failed to consider the evidence submitted.by,the neighborhood resident!4.­She does not present this Court*with any other information as to the impropriety of the Board's decision granting a special permit.. On the evidence submitted to this Court, it cannot be said that Helen Kellner has satisfied her •burden of proving that the Board exceeded.its',authority,and acted improperly when it granted.the-special permit;,to Ahe applicant. Strand, 7 Mass. App. Ct.-at-936... ,•; ;: Pursuant to M.G.L. c.40A, § 10, A permit.grantinglauthority is authorized to grant a variance from the terms of the applicable zoning ordinance or by-law when it specifically finds that owing to circumstances relating to the soil conditions, shape, or topography'of such land or -'structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve•substantial hardship, financial or otherwise, to the petitioner or appellant, . and that.desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from'the intent or purpose, of such ordinance or by-lawA;�s.�;:; r The burden rests upon the person seeking a -variance, and the board granting one, to produce evidence in"the Superior'Court that each t of the statutory:prerequisites has been4met"and that"the variance is justified. Warren v. Zoning Board of'Appeals.of'Amherst, 383 Mass, 1, 10 (1981);'!Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556 (1962); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343, 348 (1986); Guiragossian vi Board of Appeals of Watertown, 21 Mass,,App. Ct., 1111 . j.115 (1985); Martin v. Board of Appeals of Falmouth, 20 Mass. App. Ct. 972 (1985); DiGiovanni v. Board of Appeals of Rockport; 19 Mass.':'App:'Ct:'-'339,•350 (1985); Kirkwood.v.,Board of Appeals of Rockport,':17.Mass. App. Ct. 423, 427 (1984); Boyajian v. Board of Appeal of We11•esley, 6 Mass. App. Ct. 283, 284 (1978). The judge, .like the board of appeals+ may uphold the variance only if it can be expressly found '.that the'statutory prerequisites have been met. Warren, 383 Mass. at 9., Wolfson v. Sun Oil. Company, 357 Mass. 87, 90 (1970); Guiragossian,'.21 Mass. App. Ct. at 115; Boyajian, 6 Mass. App.` Ct:'at 284."'"[I]f•the board grants a variance it must 'specifically find' the'facts'which constitute the prerequisites therefor..;." Warren,.- 383 Mass.'at 10: Planning Board of"Sandwich''v. 13 and of?`Appeals of. Sandwich+ 15 Mass. App. Ct.-.971, 972 (1983); Boyajian,.6,Mass..App . Ct..at 284. "This requirement for -specific findings .6 Iis,not satisfied by a mere repetition of the statutory words!." -Warren,,383 Mass. at 10 quoting Brackett v. Board of Appeal of the Building Dept. of Boston, 311 Mass. 52, 54 (1942). Wolf son, ,357. Mass: at 89; Sullivan v. Board of Appeals of Belmont,:346.Mass. 81, 83.(1963). 7 "Since the requirements'for the grant of'a variance,are. conjunctive, not,•'_dis junctive t . a failure •to ;establish any sone of- them f-them is fatal.";:,Kirkwood, 17 Mass.' App:,,Ct ,at 428J Guiragossian, 21 Mass. App. Ct. at 115.' In its decision granting:the variances Ahe,Board made the following findings: the presently existing.structure violates the setback requirements; the _:requested variation would only• marginally change the existing.setback�violationl.the site is unique, making the impact of the setback.requfrements very substantial; a hardship exists, in that a'literal enforcement would amount to an extreme financial hardship,for the property owners with no commensurate benefit to•the=community; and the site as proposed will not adversely impact the area.,•Moreover, the Board found that the pertinent,provisions.of the Zoning By-law . have been satisfied, in particular-due'to the"shape of the land in. question, and further that the relief.,granted'is not of substantial detriment to the public good:and.does,,not nullify nor substantially derogate'from the intent or purpose of the Zoning By-law. The bases`,for this decision.was"also`provided in detail. Helen Kellner states.in her complainttthat;there is no substantial hardship,to the owner of the�propertyp and the only evidence of hardship submitted.,was'that'of,.:financial loss. She reiterated the fact that .there was oppositiod.,from the Planning Board, the Town Planner, abutters and several„neighborhood residents. Futhermore, Helen Kellner.§tates',that':the.Board,.exceeded-its authority when it granted a variance'to change'.the setback requirements because a.modification'of the setback:would mean an erosion of the state policy•regarding',public;highway safety: In addition, she states that the variances granted seriously deviate from the Zoning By-lawswithout,, justif ication. IN Based on the'information.before.this Court, it cannot be said that Helen Kellnee:-has''sustained' her burden:of`.proving• that the Board exceeded its authority when it granted.the.requested variances. strand, 7 Mass: App;,-Ct. at.936.:,.Moreover,'the Board has produced sufficient evidence that_each,,of-''the statutory . prerequisites have.been met and,,that the.variances;are justified.. Warren, 383 Mass. at 10. :.. III. ORDER ;'• r:r;. For the foregoing reasons, it isohereby Ordered that the defendants' Motion to Dismiss is. hereby Allowed.;qr .:. •` Ni Harold Flannery stice ot..the Superior Court Dated: April /2-1 .1988 f r.. i I rr Is KOPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MASSACHUSETTS 02110 DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO JOEL B. BARD JOEL A. BERNSTEIN RICHARD J. FALLON BARBARA J. SAINT ANDRE GEORGE M. MATTHEW5 EVERETT J. MARDER JANE M. O'MALLEY KAREN V. KELLY DAVID L. GALLOGLY SONDRA M. KORMAN ANNE•MARIE M. HYLAND January 19, 1989 Hon. Charles A. Salisbury and the Members of the Board of Selectmen North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Helen Kellner Vs. James Maynard Dear Members of the Board of Selectmen: (617) 451-0750 Enclosed herewith is the decision of the Appeals Court in the above referenced case. This is where the Board of Appeals granted the Defendant a special permit for variances. The Court dismissed the appeal of the Plaintiff. Enclosed is the Memorandum and Order since it is very complex. Very truly yours, Leonard Kopelman LK/ sb Enclosure cc: Board of Appeals I COMMONWEALTH OF MASSACHUSETTS APPEALS COURT HELEN KELLNER VS. JAMES MAYNARD, trustee, & another. MEMORANDUM AND ORDER The plaintiff appealed to the Superior Court pursuant to G. L. c. 40A, § 17, from a decision of the Board of Appeals of North Andover granting the defendant Maynard (defendant) a special permit and four variances to remove an existing residence and construct a commercial day care center at a site located across the street from a single family dwelling owned by the plaintiff. Both the board and the defendant filed answers. The board filed a counterclaim against the plaintiff as well. The defendant moved to dismiss the complaint for failure to state a claim. The plaintiff opposed the motion with an affidavit, supporting documents, and a brief. Apparently without any objection' to the procedure, a Superior Court judge indicated to the parties that he was construing the defendant's motion as a motion for summary judgment. He allowed the (defendant's motion but took no action on the counterclaim. The plaintiff appeals from the judgment entered pursuant to the order allowing the defendant's motion. The defendant appeals from the refusal by the court below to grant his motion that the plaintiff be required to 1post a bond and for sanctions to be assessed against the plaintiff. The counterclaims, although on their face they appear to lack merit, remain outstanding. As there have been no such determination and direction as are required by Mass.R.Civ.P. 54 (b), 365 Mass. 821 (1974), when there is an adjudication of fewer than all the claims, no judgment has yet been entered from which an appeal can be taken. New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 677-678 (1977). Bragdon v. Bradford 0. (Emerson, Inc., 19 Mass. App. Ct. 420, 421, 423 (1985). Since the appeals of both the plaintiff and defendant are knot properly before us, we do no more than express our views on the issues raised by the parties. Beit v. Probate & Family Court Dept., 385 Mass. 854, 855 (1982). The principles governing judicial review under G. L. c. 40A, S 17, require that the matter under review be heard de novo and that the judge make his own findings of fact, independent of any findings of the board. "The judge is not confined to hearing only the evidence before the board . . . . 'The decision of the board is no more than the report of an administrative body and on appeal has no evidentiary weight.' '[T)he judge . . . is to . determine the legal validity of the decision of the board upon the facts found by him.'" (Citations omitted.) Prudential Ins. Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 282 n.7 (1986), and cases cited. -2- V Entry of summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), based upon the materials before the judge, was erroneous. A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976). Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984). "The movant is held to a stringent standard . . . . [A]ny doubt as to the existence of a genuine issue of material fact will be resolved against [him]. Because the burden is on the movant, the evidence presented . . . always is construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences that can be drawn from it." 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727, at 124-125 (2d ed. 1983). The defendant submitted no affidavit in support of the motion to dismiss, which the judge treated as one for summary judgment. The plaintiff's affidavit and supporting documents raised material issues of fact as to the safety of the use of the locus as a day care center and the board's finding of hardship. We do not agree with the defendant's contention that the plaintiff could not have been found to be an aggrieved party. There is a presumption that property owners to whom the board is statutorily required to give notice are persons aggrieved. "If the issue is contested, and any additional evidence is offered, the -3- point of jurisdiction will be determined on all the evidence with no benefit to the plaintiffs.from the presumption as such . . . [T)he status of the property or of the plaintiffs may be such that the plaintiffs are not aggrieved even though the property is very near." (Citations omitted). Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 215 (1975). To be a person aggrieved, one must show "'some pecuniary interest . . . which is immediately or remotely affected by the determination appealed from." Carey v. Planning Bd. of Revere, 335 Mass. 740, 743-744 (1957). The plaintiff's property is located directly across the street from the locus. As a homeowner she would appear to have a legitimate interest in preserving the integrity of a residential district. See Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624, 629-63Q (1977). The plaintiff's aggrievement, thus, is another issue which may be tried. As the appeal must be dismissed, there is no need for us to reach the question whether the court below had authority to require a bond or to assess sanctions. Appeal dismissed. By the Court (Brown, Dreben, & Fine, JJ.), Clerk J Entered: January 12, 1989. -4- k� c KoPELMAN AND PAIGE, P.C. ATTORNEYS AT LAW SUITE 1000 77 FRANKLIN STREET LEONARD KOPELMAN BOSTON, MASSACHUSETTS 02110 DONALD G. PAIGE ELIZABETH A. LANE JOYCE FRANK JOHN W. GIORGIO JOEL B. BARD JOEL A. BERNSTEIN RICHARD J. FALLON BARBARA J. SAINT ANDRE GEORGE M. MATTHEWS EVERETT J. MARDER JANE M. O'MALLEY KAREN V. KELLY DAVID L. GALLOGLY SONDRA M. KORMAN ANNE -MARIE M. HYLAND January 19, 1989 Hon. Charles A. Salisbury and the Members of the Board of Selectmen North Andover Town Hall 120 Main Street North Andover, MA 01845 Re: Helen Kellner Vs. James Maynard Dear Members of the Board of Selectmen: (617) 451.0750 Enclosed herewith is the decision of the Appeals Court in' the above referenced case. This is where the Board of Appeals. granted the Defendant a special permit for variances. The Court dismissed the appeal of the Plaintiff. Enclosed is the Memorandum and Order since it is very complex. Very truly yours, Leonard Kopelman LK/sb Enclosure cc: Board of Appeals COMMONWEALTH OF MASSACHUSETTS APPEALS COURT HELEN KELLNER VS. JAMES MAYNARD, trustee, & another. MEMORANDUM AND ORDER The plaintiff appealed to the Superior Court pursuant to G. L. c. 40A, § 17, from a decision of the Board of Appeals of North Andover granting the defendant Maynard (defendant) a special permit and four variances to remove an existing residence and construct a commercial day care center at a site located across the street from a single family dwelling owned by the plaintiff. Both the board and the defendant filed answers. The board filed a counterclaim against the plaintiff as well. The defendant moved to dismiss the complaint for failure to state a claim. The plaintiff opposed the motion with an affidavit, supporting documents, and a brief. Apparently without any objection to the procedure, a Superior Court judge indicated to the parties that he was construing the defendant's motion as a motion for summary judgment. He allowed the defendant's motion but took no action on the counterclaim. The plaintiff appeals from the judgment entered pursuant to the order allowing the defendant's motion. The defendant appeals from the refusal by the court below to grant his motion that the plaintiff be required to post a bond and for sanctions to be assessed against the plaintiff. The counterclaims, although on their face they appear to lack merit, remain outstanding. As there have been no such determination and direction as are required by Mass.R.Civ.P. 54 (b), 365 Mass. 821 (1974), when there is an adjudication of fewer than all the claims, no judgment has yet been entered from which an appeal can be taken. New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 677-678 (1977). Bragdon v. Bradford O. Emerson, Inc., 19 Mass. App. Ct. 420, 421, 423 (1985). Since the appeals of both the plaintiff and defendant are not properly before us, we do no more than express our views on the issues raised by the parties. Beit v. Probate & Family Court Dept., 385 Mass. 854, 855 (1982). The principles governing judicial review under G. L. c. 40A, § 17, require that the matter under review be heard de novo and that the judge make his own findings of fact, independent of any findings of the board. "The judge is not confined to hearing only the evidence before the board . . . . 'The decision of the board is no more than the report of an administrative body and on appeal has no evidentiary weight.' '[T]he judge . . . is to . . . determine the legal validity of the decision of the board upon the facts found by him.'" (Citations omitted.) Prudential Ins. Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 282 n.7 (1986), and Icases cited. -2- } Entry of summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), based upon the materials before the judge, was erroneous. A party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976). Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984). "The movant is held to a stringent standard . . . . [A]ny doubt as to the existence of a genuine issue of material fact will be resolved against [him]. Because the burden is on the movant, the evidence presented . . . always is construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences that can be drawn from it." l0A Wright, Miller & Kane, Federal Practice & Procedure § 2727, at 124-125 (2d ed. 1983). The defendant submitted no affidavit in support of the motion to dismiss, which the judge treated as one for summary judgment. The plaintiff's affidavit and (supporting documents raised material issues of fact as to the safety of the use of the locus as a day care center and the board's finding of hardship. We do not agree with the defendant's contention that the plaintiff could not have been found to be an aggrieved party. There is a presumption that property owners to whom the board is statutorily required to give notice are persons aggrieved. "If the issue is contested, and any additional evidence is offered, the -3- point of jurisdiction will be determined on all the evidence with no benefit to the plaintiffs from the presumption as such . . . . [T]he status of the property or of the plaintiffs may be such that the plaintiffs are not aggrieved even though the property is very near. (Citations omitted). Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 215 (1975). To be a person aggrieved, one must show "'some pecuniary interest . which is immediately or remotely affected . . by the determination appealed from." Carey v. Planning Bd. of Revere, 335 Mass. 740, 743-744 (1957). The plaintiff's property is located directly across the street from the locus. As a homeowner she would appear to have a legitimate interest in preserving the integrity of a residential district. See Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624, 629-630. (1977). The plaintiff's aggrievement, thus, is another issue which may be tried. As the appeal must be dismissed, there is no need for us to reach the question whether the court below had authority to require a bond or to assess sanctions. Appeal dismissed. By the Court (Brown, Dreben, & Fine, JJ.), Clerk J Entered: January 12, 1989. -4- C' RUDOLPH, ANDREWS & KRONER 0 Pj ) Attot7mys at Law SIXTY-FOUR CENTRAL STREET POST OFFICE Box 238. GEORGETOWN, MASSACHUSETTS 01833 ROBERT P. Rum -Pit ROBERT E. AMRP,WS TELEPHONE MITCHELL E. KRONER (617)352-8111,352-6023 April 29, 1988 Clerk Essex Superior Court 34 Federal Street Salem, Massa,Iiusetts 01970 Re: Kellner v. Maynard, etal Docket No. 87-42 Dear Clerk: Enclosed please find Notice of Appeal and Certificate of Service of same in regard tot he above entitled matter for filing. Kindly file same. Thank you for your courtesy. RPR/kas Enclosure cc: John J. Willis, Jr., Esquire Domenic J. Scalise, Esquire . i COMMONWEALTH OF -MASSACHUSETTS ESSEX, SS. HELEN KELLNER, Plaintiff VS. JAMES P. MAYNARD, TRUSTEE ) etals, ) Defendant ) SUPERIOR COURT DOCKET NO.87-42 NOTICE OF APPEAL Notice is hereby given that Helen Kellner, Plaintiff above named hereby appeals to the Massachusetts Appeals Court from the Judgment on the Defendants' Motion to Dismiss dated April 12, 1988. Helen Kellner, Plaintiff By he ttorhe\y obert P. Rdd I h, rsquire UDOLPH, ANEWS E KRONER 64 Central Stre Georgetown, MA 01833 Tel: (617) 352-8111 CERTIFICATE OF SERVICE I, Robert P. Rudolph, attonrey for the Plaintiff in the foregoing action; certify that I have this day sent copies of the Notice of Appeal by mailing postage prepaid to John J. Willis, Jr., 160 Plea san� Street, No. Andover, MA 01845 and Domenic J. Scalise, 89 Main Stree p�o`Ari I tv r, MA 01845. IR. Robert P. ud Iph Esquire RDOLPH, ANDRE S 5 KRONER Dated: April 29, 1988 64 Central Street Georgetown, MA 01833 Tel: (617) 352-8111 RUDOLPH, ANORFws & KRONER Afrmn ,-f IAw CEORCE.TOWN. MA 0I939 Essex, ss. COMMONWEALTH OF MASSACHUSETTS Department Of The Trial Court Helen Kellner vs. ------------- Superior --- Superior Court No.. 87-42 James P. Maynard, Trustee, at als This action came on for hearing before the Court, Flannery, J. presiding, and the issues having been duly heard and findings having been duly rendered, It is Ordered and Adjudged; that the plaintiff Helen Kellner take nothing, that the action be dismissed on the merits as to all defendants, Without ousts. The Clerk -Magistrate of the Court is directed to mail an attested copy of this judgment Within thirty days from the date hereof, to the Town Clerk, Building Inspector, and Board of Appeals, respectively of the Town of North Andover. Dated at Peabody, Massachusetts, thia'13th dap of April, 1988. �37�. FEMIR A 1' l[E COP , ATTEST. EPUTY AS CLERK COMMONWEALTH OF MASSACHUSETTS 4 ESSEX, SS. SUPERIOR COURT CIVIL ACTION N0: 87-42 HELEN KELLNER, Plaintiff," vsh JAMES P. MAYNARO, et al,' Defendants MEMORANDUM OF DECISION AND"ORDER ON DEFENDANTS' MOTION TO DISMISS I . ' BACKGROUND The plaintiff, Helen Kellner, is appealing two decisions of • the North Andover Board of Appeals ("the Board"? granting a special permit for the use of property located between Chestnut Street, Mill Road and'Turnpike.Street in North,'Andover as a day care center, and granting several variances to accommodate the construction of a proposed building to house the -child care center. The defendants assert the validity of the Board's decisions and have filed a motion to dismiss claiming that the plaintiff is not an aggrieved person within:the meaning of.G.L. c.40A, S 17, and�that the plaintiff has failed':to produce evidence sufficient to enable this Court to find-.that'the Board exceeded its authority when it granted defendant:James,P...Maynard the special permit and variances requested: In her complaint, Helen Kellner states .,that she is an abutter to the premises which were the subject of the special permit and .. variances. She also states that the intersection'in ,front of the proposed use is a dangerous one, and the proposed use of'a child care center at the premises would create a serious safety problem. In addition, there is no substantial hardship to the owner of the subject property. Moreover, Helen•Kellner states that the neighborhood residents, the Planning Boardi;and the Town Planner all oppose the change in use. The opposition -also stems, in part, from the child care center's ,:resultardt`'interfeteiice'.with the proposed setback or buffer of,100•feet from the existing northerly boundary of Route 114 permitting future widening for a safer and more efficient traffic flow. II. DISCUSSION ."In appraising the sufficiency of,the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a.claim unless it'appears beyond doubt that the plaintiff can prove•no sets of facts*in.support of his claim which would entitle him to relief.. Furthermore, the allegations 1 of the complaint,.as•well as'such inferences as'�may.be drawn - therefrom in the plaintiff's favor, are to be taken as true ... [citations omitted] ...". Bell 'v. Mazza, 394 Mass. 176, 183 (1985). The defendants have raised certain..initial challenges to Kellner's right to maintain this action: -MiG A4 c A0A, § 17 • s . r i �J 3 provides that "any,•person aggrieved" by•Ia,decision pf the:Board of Appeals may appeal to the Superior Court,.'by;bringing a.civil action. At the time the Board r1endered, its..decisions, and when Helen Kellner brought this action, she was an abutter to the. subject property.-. In her.complaint,.she.has•demonstrated a "legitimate interest" in the proceedings before:the Board., Murray v. Board of Appeals of Barnstable, 22 Mass. App: Ct. 473, 476 (1986); Butts v.1 Zoning Board of'.Appeals of Falmouth, 18 Mass. App. Ct. 249, 253'(1984). Thus, Kellner is an1f."aggrieved person" within the meaning of M.G.L. c.40A, § 17, and has standing 'in the present action. • The defendants also assert that Helen.Kellner has failed to state a claim upon which relief can be granted. -because she has failed to provide any facts to this Court upon which the decisions made by the Board can be set aside. .The burden of proof is on Helen Kellner, as the person objecting to the board's decisions, to "convince the trier of fact that the board exceeded its authority and acted improperly." Strand v. Planning Board of r tM m: i4 Sudbury, 7 Mass. App. Ct. 935, 936 (1979).;, The general rule applicable -to the propriety. of a.decision by a special permit granting authority was set,forth.in MacGibbon v.' Board of Appeals of Duxbury, 356.,Mass..•,635:(197.0): Neither the Zoning Enabling Act nor:,the town.zoning by-. law gives the plaintiffs an abolute right to the special permit which they seek.. The board is not compelled to grant.the permit.' It has discretionary 4. power in acting thereon. " The board must act fairly.and ' reasonably on the evidence presented to it, keeping in mind the objects and purposes of the enabling act and the by-law.-, The.decision ofAhe board cannot be disturbed unless it is based`on a legally untenable ground, or is unreasonable, whimsicalt'capricious.or arbitrary. MacGibbon, 356 Mass. at 638-639. The granting of a special permit must be upheld'if it is for a use that is in harmony -with the general purpose and intent of the ordinance or by-law, M.G.L. c�40A, §9; -'and the'other criteria enunciated in MacGibbon are satisfied:',See Planning Board of Sandwich v. Board of Appeals of Sandwich#_15 Mass: App, -'Ct. 901, 971-972 (1983); Garvey v. Board of Appeals of Amherst, 9 Mass. APP. Ct. 809, 856 (1980) . In its decision granting the special permit# the Board expressly found that the pertinent provisions.of the Zoning By-law have been satisfied, and the•relief granted does not nullify nor substantially derogate from the intent or purpose of the Zoning By-law. They also expressly found that no significant problems or hazards would be created for.either vehicular.4or.pedestrian traffic by virtue of the proposed use, despite•the testimony of residents to the.contrary. In addition# the.Board found that the proposed child-care center is the use most ..,in keeping with the use of the area. Moreover, the impact of the proposed design was found by the Board to be minimal and not hazardous or.detrimental to the area. The bases for their decision was.also provided in / 5 detail. i h' In her complaint, Helen Kellner.states that .the proposed use of a child care center would create a serious,"safety problem at the intersection involved, that no conditiorss.or provisions were made regarding this problem, and that•various' ndividuals seriously oppose the change in use. She also claims that the Board failed to consider the evidence submitted by the neighborhood residents.:"She does not present this Court•with any other information as to the impropriety of the Board's decision granting a special permit.. on the evidence submitted to this Court, it cannot be said that Helen Kellner has satisfied her ,burden of proving that the Board exceeded its',authority•and acted improperly when it granted.the_special permit,.totthe applicant. Strand, 7 Mass. App. Ct. at: 936., Pursuant to M.G.L. c.40A,.§ 10, a permit granting authority is authorized to grant a variance from the terms of the applicable zoning ordinance or by-law when it specifically finds that owing to circumstances relating to the soil conditions, shape, or topography'of such land ot"structures but not affecting generally the zoning district in which it is located, a literal enforcement of.the provisions of.the ordinance or by-law would involve•substantial hardship, financial or otherwise, to the petitioner or appellant, . and that.desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from.'.the intent or purpose, of such ordinance • or.;by-law,;;' !,. ; The burden rests upon the person seeking a -variance, and the board granting one, toyproduce evidence in the Superior'Court that each r , i 6 of the statutory prerequisites has been4met"and that'the variance is justified., Warren v. Zoning Board of A peals.of'Amherst, 383 Mass. 1, 10 (1981);�Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556 (1962); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343, 348 (1986); Guiragossian v, Board of Appeals of Watertown, 21 Mass,,App. Ct., 111,.115 (1985); Martin v. Board of Appeals of Falmouth, 20 Mass. App. Ct 972 (1985); DiGiovanni v. Board of Appeals of Rockport, 19 Mass.'"App.'Ct,''339, 350 (1985);_ Kirkwood.v.,Board of Appeals of Rockport,;1.7,.Mass. App. Ct. 423, 427 (1984); _Boyajian.v. Board of Appeal of Wellesley,.6 Mass. App. Ct. 283, 284 (1978). , • The judge, like the board of appealsi. may uphold the variance only if it can be expressly found .'that the'statutory prerequisites have been met. Warren, 383 Mass. at -9.;: Wolfson v: Sun Oil. - r Company, 357 Mass. 87, 90 (1970); Guiragossian,'_21 Mass. App. Ct. at 115; Boyajian, 6 Mass. App.' Ct.'at 284.• "[1Jf•the board grants a variance it must 'specifically find' the'facts'which constitute the prerequisites therefor...." Warren,: 383 Mass.'at 10: . i Planning Board of"Sandwich''ve"..Board of -''Appeals. of Sandwich, 15 Mass. App. Ct., 971, 972 1(1983);. Boyajian, .6;.Mass.,. App. Ct, at 284. "This requirement.for•specific findings,,.., 'is.not satisfied by a mere repetition.of the statutory words'." -Warren, 383 Mass. at 10 quoting Brackett v. Board of Appeal of the Building Dept. of Boston, 311 Mass. 52, 54 (1942)'.',Wolfsono'..357.Mass& at 89; Sullivan v. Board of Appeals of Belmont,:346.,Mass. 81, 83_(1963). 7 "Since the requirements for the grant of"a.variance,are- conjunctive, not'disjunctive+ a failure toI:establish anyone of them is fatal:"'. Kirkwood, 17 Mass.' App:,?M::at 428} Guiragossian, 21 Mass. App. Ct. at 115.' in its decision grantingthe variances.the.Board made the following findings: the presently existing.structure violates the setback requirements; the requested variation would only marginally change the existing.setback,_violation;.the site is unique,'making the impact of the setbacksrequirements very substantial; a hardship exists, in that a•literal enforcement would amount to an extreme'financial hardship%.for the property owners with no commensurate benefit to•the:community; and the site as proposed will not adversely impact the area.•'Moreover, the Board found that the pertinent provisions of the Zoning By-law have been satisfied, in particular due'to the shape of the land in question, and further that the relief.granted'is not of substantial detriment -to the public good;and.does,not nullify nor substantially derogate'from.the intent or purpose -of the Zoning By-law. The bases... for this decision was'also'ptovided in detail. Helen Kellner states,in her complaint that'Ahere is no 1 substantial hardship,to the owner of the�property#'and the only evidence of hardship submitted,was that'of`Iinancial loss. She reiterated the fact that.there was oppositiohi;.from the Planning Board, the Town Planner, abutters and. several.•neighborhood residents. . r �.w:l:l..). r. jam, ..:'•' 7w���N.�� • 0 Futhermore, Helen Kellner.states.,that''the,Board•'exceeded its authority when itgranteda variance'to change.,the'setback. requirements because a.modification'of the.setback:would mean an erosion of the state policy.regardingr;public,highway safety: In addition, she states that the variances granted seriously deviate from the Zoning By-laws, without,, justification. Based on the information.before this Court, it cannot be said that Helen Kellner. has` mistaineci her burden.; ofp-the „ ,.., .Board exceeded its authority when it_granted,the.requested variances. Strand, 7 Mass: App: Ct..at.936.;.;.Moreover, the Board has produced sufficient evidence that _e ch„of-,the statutory .prerequisites havebeen met'and that the.variances;.are:justified. : Warren, 383 Mass. at 10. III0. ' .ORDER For the foregoing reasons, it is(hereby Ordered that the defendants' Motion to Dismiss is.hereby.Allowed....:.. ... � 1 - ,r ,,i.., ►:;:�: , . � ..'� ' •*::.: , ,,'; moi,• ;:� . , . '.. RuDoLPH, ANDREWS & KRONER C(DPY Attorn(ys at Law SIXTY-FOUR CENTRAL STREET POST OFFICE BOR 238. GEORGETOWN, MASSACHUSETTS 01833 ROBERT P. RuDotnt ROBERT E. ANDREWS TELEPHONE MITCHELL E. KRONER (617) 352-8111, 352-6023 April 29, 1988 Clerk Essex Superior Court 34 Federal Street Salem, Massachusetts 01970 Re: Kellner v. Maynard, etal Docket No. 87-42 Dear Clerk: Enclosed please find Notice of Appeal and Certificate of Service of same in regard tot he above entitled matter for filing. Kindly file same. Thank you for your courtesy. RPR/kas Enclosure cc: John J. Willis, Jr., Esquire Domenic J. Scalise, Esquire COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. HELEN KELLNER, Plaintiff VS. 1 JAMES P. MAYNARD, TRUSTEE ) etals, ) Defendant ) SUPERIOR COURT DOCKET N037-42 NOTICE OF APPEAL Notice is hereby given ,that Helen Kellner, Plaintiff above named hereby appeals to the Massachusetts Appeals Court from the Judgment on the Defendants' Motion to Dismiss dated April 12, 1988. Helen Kellner, Plaintiff By he ttor'ey, obert P. KUd i n, tsquire UDOLPH, AN EWS S KRONER 64 Central Stre Georgetown, MA 01833 Tel: (617) 352-8111 CERTIFICATE OF SERVICE I, Robert P. Rudolph,' attonrey for the Plaintiff in the foregoing action; certify that I have this day sent copies of the Notice of Appeal by mailing postage prepaid to John J. Willis, Jr., 160 Pleasan.-Street, No. Andover, MA 01845 and Domenic J. Scalise, 89 Main Stree , o., Ar over, MA 01845. --� _ �! \) Dated: April 29, 1988 RUDOLPH, ANDREWS & KRONER A tfamrva at Law GEORGETOWN, MA 01833 059.8111 Robert P. Wudblph4 Esquire RUDOLPH, ANDREIS S KRONER 64 Central Street Georgetown, MA 01833 Tel: (617) 352-8111 BsBe]C, 88. COMMONWEALTH OF -MASSACHUSETTS Department Of The Trial Court Helen Kellner V86 superior Court No. '8 7.42 James P, Maynard, Trustee, at als JUDGMT This action came on for hearing before the Court, Flannery, J. presiding, and the issues having been duly heard and findings having been duly rendered, It is Ordered and Adjudged.. that the plaintiff Helen Kellner take nothing, that the action be dismissed on the merits as to all defendants, without costs. The Clerk -Magistrate of the Court is directed to mail an attested copy of this judgment within thirty days from the date hereof, to the Town Clerk, Building Inspector, and Board of Appeals, respectively of the Town of'North Andover. Dated at Peabody, Massachusetts, this_13th day of April, 1988. MIA 7 A T E COP, ATTEST. EPUTY Of SS CLERK i .I6.BACKGROUND . The plaintiff, Helen Kellner, is'appealing two decisions of the North Andover Board of Appeals ("the Board"? granting a special permit for the use of property located between Chestnut Street, Mill Road and'Turnpike.Street in'North,.Andover as a day care center, and granting several variances to accommodate the construction of a propose& building to house the child care center. The defendants assert the validity of the Board's decisions and have filed a motion to dismiss claiming that the plaintiff is not an aggrieved person within` -,,the meaning of.G.L. /G c.40A, § 17, andrthat"the plaintiff has failed to produce evidence sufficient to enable this Court to find*that'the Board exceeded its authority when it granted defendant:James.P.,.Maynard the special permit and variances requested. In her complaint, Helen Kellner states.:that she is an abutter to the premises which were the subject of the special permit and i. 2 variances. She also states that the intersection'in front of the proposed use is a dangerous one, and the proposed use of*a child care center at the premises would create a serious safety problem. In addition, there is no substantial hardship to the owner of the subject property. Moreover, Helen`Kellner states that the neighborhood residents, the Planning Board, and the Town Planner all oppose the change in use. -The opposition also stems, in part, from the child care center's,.:resultatit`'interfetence'with the proposed setback or buffer of 100:'feet from the existing northerly boundary of Route 114 permitting future widening for safer and more efficient traffic flow. II. DISCUSSION'' "In appraising the sufficiency of,the complaint we follow, of course, the accepted rule that a_complaint should not be dismissed for failure to state a.claim unless it appears beyond doubt that the plaintiff can prove'no sets of' -facts in.support of his claim which would entitle him to relief.'. Furthermore, the allegations of the complaint, as -well as'such'inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true ... [citations omitted] ...".r Bell:v. Mazza, 394 Mass. 176, 183 (1985). The defendants have raised certain initial challenges to Kellner's right to maintain this action: MiG.Li'c.40A, $ 17 3 provides that "any,person aggrieved".by'fa;:,decision of'the Board of Appeals may appeal to the Superior Court1,by;.bkinging,a.civi1 Action.. At the time,the Board,rendered,.its.decision§, and when Helen Kellner brought this action, she was anabutterto the. subject property... In her,complaint,.she.has.-demonstrated a "legitimate interest"_ in the proceedings before.the Board.. Murray v. Board of Appeals of Barnstable, 22 Mass. -App, Ct. 473, 476 (1986); Butts v. `Zoning Board of Appeals of Falmouth, 18 Mass. App. Ct. 249, 251'(1984). `Thus, Kellner is an�."aggrieved person" within the meaning of M.G.L. c.40A, § 17, and has standing in the present action. The defendants also assert that Helen.Kellner has failed to state a claim upon which.relief can be granted: -because she has failed to provide any facts to this Court upon which the decisions made by the Board can beset aside. .The burden of proof is on Helen Kellner, as the person objecting to the board's decisions, to "convince the trier of fact that the board exceeded its authority and acted improperly." Strand v. Planning Board of Sudbury, 7 Mass. App. Ct. 935, 936 (1979).; The general rule applicable'to the propriety. of a decision by a special permit granting authority.was set.,forth.in MacGibbon v. Board of Appeals of Duxbury, 356..Mass. 635 (1970) Neither the Zoning Enabling Act nor;the town.zoning by- law gives the plaintiffs an abolute right to the special permit which they seek.. The board is not compelled to grant.the permit.''It has discretionary 4 1, power in acting thereon. "'The board must act fairly and reasonably on the evidence presented to it, keeping in mind the objects and purposes of the enabling act and the by-law: The,decision ofthe board cannot be disturbed unless it is based`on a legally untenable ground, or is unreasonable, whimsical# capricious or, arbitrary. MacGibbon, 356 Mass. at 638-639. The granting of a special permit must be upheld'if it is for a use that is in harmony with:.the'.generalpurpose and intent of the +. - > , ordinance or by-law; M.G.L. cA0A; 59='and.thelother criteria enunciated in MacGibbon are satisfied::'J'See Planning Board of Sandwich v. Board of Appeals of Sandwichi._15 Mass: App: Ct: 901, 971-972 (1983); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 809, 856 (19.80). In its decision granting.the special permits the Board expressly found that the pertinent provisions.of the Zoning By-law have been satisfied, and the'relief granted does not nullify nor substantially derogate from the intent*or purpose of the Zoning By-law. They also expressly found that no significant problems or hazards would be created for,either vehicular:,or,pedestrian traffic by virtue of the proposed use, despite the testimony of residents to the..contrary..-.In addition+ the.Board found that the proposed child-care center is the use -most -'An keeping with the use of the area, Moreover,the impact of. -the -proposed design was found by the Board to be minimal and not hazardous or.detrimental to the area. The bases.for their decision was,.also provided in • _ } --' 'per • K;: _ . 1 5., detail. In her complaint, Helen Kellner-state5.'that the proposed use of a child care center would create a serious.'safety problem at the intersection involved, that no conditions.or provisions were made regarding this problem, and that various individuals seriously oppose the change in.use. She also claims that the Board failed to consider the evidence.submitted.by,the neighborhood residenta.,""She does not present this Court•with any other information as to the'impropriety of the Board's decision granting a special permit._ On the evidence submitted to this Court, it cannot be said that Helen Kellner has satisfied her burden of proving that the Board exceeded its;authority,.and acted improperly when it granted,the,special permit,to:the applicant. Strand, 7 Mass. App. Ct. at:936.. Pursuant to M.G.L. c.40A, § 10, &permit granting authority is authorized to grant a variance from the terms of the applicable zoning ordinance or by-law when it specifically finds that owing to circumstances relating to the soil conditions, shape, or topography :of such land or•''strddtures but not affecting generally the zoning district in which it is located, a literal enforcement of.the provisions of the ordinance or.by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that.desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from.'.the intent or purpose, of such ordinance, or by-law s;1 s,= The burden rests upon the person seeking a -variance, and the board granting one, to,produce evidence in`'the Superior Court that each 1 6 of the statutory,prerequisites has. been'met'and that'the variance is justified., Warren.v..:Zoninq Board of'Appeals.of'Amheist, 383 Mass. 1, 10 (1981);'Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556 (1962); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App.,Ct. 343,.348 (1986); Guiragossian v, Board of Appeals of Watertown, 21 Mass:.App. Ct. ,f111, 115 (1985);,Martin v. Board of Appeals of Falmouth, 20 Mass. App. Ct..972 (1985); DiGiovanni v. Board of Appeals of Rockport, 19 Mass.'App� Ct,•339, 350 (1985);. Rirkwood.v.,Board of Appeals of Rockport,,17..Mass. App. Ct. 423, 427 (1984); Boyajian v. Board of Appeal of Wellesley, 6 ti Mass. App. Ct. 283, 284 (1978). The judge, like the board of appeals, may uphold the variance only if it can be expressly found that the statutory prerequisites have been met. Warren, `383 Mass. at,9.: Wolfson v. Sun Oil, Company, 357 Mass. 87, 90 (1970); Guiragossian,'.21 Mass. App. Ct. at 115; Boyajian, 6 Mass. App.` Ct: at 2846`.`"(I]f"the board grants a variance it must 'specifically find' the facts which constitute the prerequisites therefor:.:.' Warren,.,383 Mass. at 10: Planning Board of''Sandwich°`v."Board off"Appeals of Sandwich 15 Mass. App. Ct...971, 972 (1983);. Boyajian, .6' at 284. "This requirement.for_specific findings,&..6.Iis!not satisfied by a mere repetition.of the statutory words!!." -Warren, 383 Mass. at 10 quoting Brackett v. Board of Appeal of the Building Dept. of_, Boston, 311 Mass. 52, 54 (1942)`��,Wolfson;�,357 Mass; at 89; Sullivan v. Board of Appeals of Belmont,.346.Mass. 81, 83.(1963). r , 'Since the requirements for the grant of"a variance are conjunctive,. not'disjunctivej.-:a f.ailure.:to�,establish any one of them is fatal:,";';Kirkwood, 17 Mass.` App.,,Xti :at 428; Guiragossian; L 21 Mass. App. Ct.' at In its decision grantingthe variances,: the.Board made the following findings: the presently existing structure violates the setback requirements; the requested variation would only marginally change the.existing:setbacki'-violationj.the site is unique, making the impact of:the setback:requirements very substantial; a hardship exists, in that a'literal enforcement would amount to an extreme financial hardship,,for the property owners with no commensurate benefit to the. -community; and the site as proposed will not adversely impact the. area.,'Moreover, the Board found that the pertinent,provisions.of the Zoning By-law have been satisfied, in particular due;'to the"shape.of the land in question, and further that the relief..,granted is not of substantial detriment,.to the public good;and.does,not nullify nor substantially derogate -from the intent -or purpose of the Zoning By-law. The bases Jor.this decision,was'also'provided in detail. Helen Kellner states in -her complaint that4there is no p substantial hardship,to,the.owner of.thepropertyj and the only evidence of hardship submitted was that'of,financial loss. She reiterated the fact that.there was opposition from the Planning Board, the Town Planner, abutters and several..neighborhood residents.Ji J, Futhermore, Helen Kellner',states.,that`•the.Board,,Iexceeded its authority when it granted a varianceto,change,the setback ' t requirements because a..modification.'of .the setback would mean an erosion of the state policy regarding,public;highway .safety. In ..addition, she states that the.variances granted seriously deviate from the Zoning By-laws; without,: justif ication. ••::. 1 Based on the information before.this Court, it cannot be said that Helen Kellner has'eustained"her burden of proving that the .Board exceeded its authority when it granted._the.requested variances. Strand, 7 Mass: App:�;Ct..at.936.,;Moreover, the Board has produced sufficient: evidence: that,_eech ,ofathe, statutory prerequisites have been met and,that,the variances are justified. Warren, 383 Mass. at 10. t 1 III. ...ORDER For the foregoing.reas,ons,.it isihereby Ordered that the defendants' Motion to Dismiss is hereby.Allowed. J//Harold Flannery Jtice of : the Superior Court GU'ici G} lt. i - 1i1� jovJn in 1;1e 0►.iica o�. Clerk• Of ,,OPT" ,Ak O A 1�sAcwu�a� v -N - — r 4 G 10% TOWN OF NORTH ANDOVER ALS James P. Maynard, Trustee Maynard Real Estate, Trust 731 Chestnut'Street MASSACHUSETTS BOARD OF APPE 11aniP1 i..nna, Tnwn Clprk Town of North Andover 1"20 Main Street North Andover, MA 01845 Dear Mr. Long: Petition #i 34-87 December 2'2, 1986 The Board of Appeals held a public hearing on November 18, 1986, upon the application of James P. Maynard, Trustee, Maynard Real Estate, Trust, requesting a variation of Section 7, Paragraph 7.3 of the Zoning By -Law and Table Two, and a Special Permit, Section 4.121 Paragraph 19, so as to permit the construction of a day care center and relief of the 100•.foot set back from Route 911 and relief of the SO foot green space and 30 foot set back on e.stnut St. on the premises located at/731 Chestnut St., North Andover, MA. The following members were present and voting: Frank Serio, Jr., Chairman, Alfred E. Frizelle, Esq., Vice Chairman, Augustine Nickerson, Clerk, Walter Soule and Anna O'Connor. The hearing was advertised in the North Andover Citizen on October 30 and November 6, 1986, and all abutters were notified by regular mail. At the hearing, evidence was received from the petitioner through Attorney John J. Willis, Jr., which included the. following: (a) Site Plan showing proposed building location, location of access and egress points, and parking and landscaping details. (b) Traffic analysis hy N`�rman 0. Abend identifying present traffic patterns and projecting future changes which would occur as a result of the proposed use. (c) Photograph and package from "Children's World" showing architectural styling, floor layouts, and operational characteristics of proposed structure. (d) Oral presentation of geographical and use characteristics of neighborhood and Route #114 in the vicinity of the site and along highway from Middleton town line to and beyond the, site. Evidence was taken in favor of Petition from North Andover Building Inspector and Zoning Enforcement Officer Charles Foster by letter stating that proposal was appropriate for the area and in keeping with intent and purpose of the by-law. Letter from Chief of the North Andover Fire Department stating the project met his requirements for safety and access and egress. Letter suggested project might consider sprinkler system in building and that fire alarm systems be direct wired -- -- to _..tae f i -re s t_a-tion ___--- Letter from North Andover Planning Board stating standard opposition to variation of 100 foot set back requirement on Route #114. Oral opposition was expressed by residents on Chestnut Street and on Mill Road and vicinity regarding fears of increased traffic. Testimony was presented that vehicles travel at excessive rates of speed along Chestnut Street, and that the area was residential and should remain so. Oral opposition was also presented concerning historical character of presently existing structure. No testimony was presented concerning any possible solutions to the Historic Building, except that the Petitioner stated that the owner of the structure intended to relocate it to another site. Upon a motion made by Mr. Frizelle, seconded by Anna O'Connor, the Board VOTED: Four in favor, with Mr. Soule opposed, to grant the Special Permit and Variances as requested subject to the following conditions: 1. That the sewer service from the building be connected to the sewer line in the street prior to the issuance of a building permit for the construction of the building. 2. That the existing dwelling be moved prior to May 1, 1987. 3. That a three foot high white picket fence be placed around the parking iot as shown on the plan from Mill St. to Chestnut St.. 1. That the concrete steps an:1 ~:he shed shown on the plan be removed prior to the issuance of a building permit for the construction of the building. The Board finds the following: Upon review of the Traffic analysis by Norman 0. Abend the Board finds no significant problems or hazards would be created for either vehicular or pedestrian traffic by the proposed use as the proposal will utilize Chestnut and Mill Streets for access and egress which have been shown to be more than adequate to accommodate the proposed use. The Board is mindful of the testimony of residents citing an increase in traffic, however, the objections do not appear to be significant because the day care center traffic would not be a major traffic generator as set forth in the traffic study. Furthermore, at some future point in time, the intersection of Mill St. and Route #114 is scheduled by the state to have traffic signals installed. The presently existing structure violates the set back requirements on Chestnut Street and those from Route #114. The proposed use though asking for a variation to 15 feet from _.Gale rAut :.sar -- Vial a ian_ti aIl currently exists. The requested variation to 80 feet set back from Route #114, would only marginally change the 90 foot set back violation of the existing building. The site is unique in that it is a thin triangular parcel bounded on all sides by roads and adjacent to Route #114. At its widest, it is 180 feet deep, making the impact of the set back requirements very substantial. A hardship exists in that a literal enforcement of the Zoning By -Law would almost constitute a taking of the parcel in that by taking off the 30 feet set backs required on Chestnut Street and Mill Street, and the 100 feet set back required on Route #114, approximately 66,195 square feet would be unusable on a 72,745 square foot lot. This amounts to 910 of the property being non -usable . The area available for construction would be a thin triangle not readily usable without some exotic building design. A literal enforcement would amount to an extreme financial. hardship for the property owners with no commensurate ben. f i t to the community. No concrete information was presented to the Board regarding any plans of the State to widen the highway at this location. The Board feels that any such work could still be accommodated with the building located as proposed. The impact. of the proposed design would be minimal and not hazar'ous or detrimental to the area. The Board recognized and sympathized with objectors, complaints•about traffic, but feels the concern is misplaced with regard to the proposal before the Board. It is not a problem which would be changed regardless of any action taken on the proposed site. The Board finds that of all the uses allowed in an R-2 zone, the proposed child care center is the use most in keeping with the use of the area. The site as proposed will not adversely impact the area, but will act as an allowed transitional use from office and commercial to residential in the area. The Board finds the site with the improvements as proposed, has , adequate and appropriate facilities provided to,accommodate the intended use. For the aforementioned reasons the Board finds that the provisions of Section 10.31 of the Zoning By -Law have been satisfied and further that the provisions of Section 10.4 have been satisfied, in particular due to the shape of the land in gi<<:ti.tiu,i Lhat a..lita.ral By -Law would involve a substantial hard -ship financial or otherwise to the petitioner and the owner of the property.,.and further that the relief granted herein is not of substantial detriment to the public good and does not nullify nor substantially derogate from intent of purpose of the Zoning By -Law. Sincerely, BOARD OF APPEALS i Frank Serio Jr. Chairman AEF/j ib DEV�`199i' mnn' Ct' -," .IDOVER BUILDIM3 DEPT. ,;� 'cities Cil1iC (;perk, r t?ORTly1� O. AFRILM ::C �ss' 1 ►� ACHUs ��� TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS NOTICE OF DECISION TI't: i. HOV i ; LR DEc K i�' L"u Ph!'06 Date ..De.Gember. .?2.R. 1.9$6.... Petition No...... 3.47B.7 .......... Date of Hearing.. NoVe.mbe.r. IS ,. 1986 Petition of .James P. Maynard, Trustee, Maynard Real Estate Trust Premises affected ..........731...Chestnut S t .. ... ................................... . Referring to the above petition for a variation from the requirements of the ,Zoning. -bylaws Section 7, Para. 7.3 and Table 2 and a Special Permit of Section 4.121, .......... . ............................. . Para.•..19. so as to permit . the. con struction• - of - a. -day -care• center • • • • • • • • • After a public hearing given on the above date, the Board of Appeals voted to . G RANT.... the variances and Special Permit and hereby authorize the Building Inspector to issue a .................................. permitto . , ....the petitioner....................................................... . for the construction of the above work, based upon the following conditions: Please see attached RECD 12TIAF t tic Signed k'rank..Sp io., .�Irl .. , . Chairman. Alfred .1r....Fr.ize.11p . , Vice, -chairman ........ l�ug.u$tjne..N1:Gke.rson , ..gje.rk .... Anna. Q'.Coxnnox .............. . Board of Appeals Upon a motion made by Mr. Frizelle, seconded by Anna O'Connor, the,Board VOTED: Four in favor, with Mr. Soule opposed, to grant the Special Permit and Variances as requested subject td the following ..conditions: 1. That the sewer -service from the building be connected to the sewer line ,in the street prior 'to the issuance of a building.permit for'tbe construction of the building. 2. That .the 'existing dwelling be moved prior to May 1, 1987. 3.- That a' three foot high white picket fence be placed around the parking ,blot as shown on the plan from Mill St. to...-.­,- Chestnut o:::•;Chestnut St.. d ,r, 4. That the concrete steps and the shed shown on the plan be removed prior to the issuance of a building permit for the construction of the building. The Board finds the. following:. Upon review of the Traffic analysis by Norman 0. Abend the Hoard finds no significant problems or hazards wou.ld be created for either vehicular or pedestrian traffic by the proposed use as the proposal will utilize Chestnut and Mill Streets for access and.egress which have been shown to be more than adequate to accommodate the proposed use.. The Board is mindful of the testimony of residents -citing an increase in traffic, however, the objections do not appear to•be significant because the day ` care center -traffic would not be a major traffic generator as set forth in the traffic study. Furthermore, at some future r point. in _time,. the intersection of Mill St. and Route #114 is scheduled by•,t.he state to have traffic signals installed. Thepresently-existing structure violates the set back requirements on Chestnut Street and those from Route #114., The proposed use though asking for a variation to 15 feet from Chestnut Street would constitute a lesser violation than currently exists,.. The requested variation to 80 feet setback from Route #114, ' would only marginally change the 90 foot set back violation of the existing building.. The site is unique in that it is a thin triangular parcel bounded on all sides by roads and adjacent to Route #114. At its widest, it is 180.feet deep, making the impact of the set back requirements very substantial. A hardship exists in that a literal enforcement of the Zoning .By -Law would almost constitute a taking of the parcel in that by taking off the 30 feet set backs required on Chestnut Street and Mill Street, and the -100 feet set back required on Route #114, -approximately 66,195 square feet would be unusable on a 72,745 square foot lot. 'This amounts to 91% of the property being tnon.-,usable The area available for construction would be a thin triangle not readily usable without some exotic building design. A literal enforcement would amount to an extreme financial.hardship for the property owners with no commensurate benefit to the community. No .concrete information -was presented to the Board regarding any plans of the State to widen the highway at this location. The _Board feels that any such work could still be accommodated with the building,located as proposed., The impact.of- the proposed design would be minimal and not hazardous'or detrimental to the area. The Board recognized and ! sympathized with objectors, complaints about traffic, but feels the concern is misp•lac.ed .with regard to the proposal before the Board.••.It is nota problem which would be changed regardless of any action taken on the proposed site. The Board finds that- of all the uses allowed in an R-2 zone, the proposed child care center is the use most in keeping with the use of the area. The site -as proposed will not adversely impact the area, but will act as an allowed transitional use from office and commercial to residential in the area. The Board finds the site with the improvements as proposed, has adequate and appropriate facilities provided to accommodate the intended use. For the aforementioned reasons the Board finds that the provisions of Section 10.31 of. the Zoning By -Law have been s,atisEied. and 1 urther that the provisions of Section 10.4 have been..satisfied, in particular due to the shape of the land in question that a,literal enforcement of the .provisions of the By -Law would involve a substantial hard -ship financial or otherwise to the.petitioner and the owner.o£ the property, and further that the relief granted herein is not of substantial detriment to the public good and does not nullify nor substantially derogate from intent of purpose of the Zoning "..;. By -Law. .I . C a i