Published December 16, 2020
By DAN TOMASELLO
LYNNFIELD — A Land Court judge ruled against the town in the Bali Hai apartment building case on Friday, Dec. 11.
In a 32-page ruling, Justice Robert Foster annulled the Zoning Board of Appeals’ November 2018 decision against 160 Moulton Drive, LLC. Local developers Matthew and David Palumbo requested a Special Permit from the ZBA in order to construct a 23-unit apartment building at 160 Moulton Dr., which is where the former Bali Hai Restaurant is located. The ZBA denied the Special Permit request.
The Palumbo brothers purchased the Bali Hai for $600,000 and it closed on New Year’s Eve of 2018. The building has been vacant since the restaurant closed.
Foster recalled that the three-day trial was held this past January.
“After reviewing all of the evidence presented at trial, I find that this case is indeed one of those rarely encountered points where no rational view of the facts could support the denial of the Special Permit by the board,” Foster wrote in his decision. “The board’s finding in the decision that the project would be substantially more detrimental to the neighborhood than the restaurant use was unreasonable and arbitrary and capricious. The decision must be annulled, and the Special Permit requested by the LCC issued.”
Foster ordered the ZBA to “issue the Special Permit requested in the application.”
“The LLC shall have the right to appear before the board for Site Plan approval and for final approval of any other matters not addressed, and the board will be ordered to approve such matters promptly,” Foster wrote.
The judge’s decision came five days after the Board of Selectmen awarded all-alcohol, weekday entertainment, common victualler and automatic amusement license applications to the Palumbo brothers as part of their fallback plan, which involved opening a new American-style restaurant called American 160 Bar and Grill in the old Bali Hai building.
Foster noted in his decision that private businesses such as the Bali Hai Restaurant can become “cherished places,” but he stated that, “Not all these cherished institutions endure.”
“The Bali Hai Restaurant in Lynnfield seems to have been such a cherished restaurant,” Foster wrote. “From its start sometime in the 1950s, it was a place for family dinners, first dates or a fast meal after a Little League game. Its large exotic sign, visible from Interstate 95, was a landmark to passers-by both on the highway and the local roads. Whether it was a decline in quality or the effect of a sound barrier on I-95 that blocked its sign, the Bali Hai saw less and less business, and finally closed its doors on New Year’s Eve 2018.”
Foster noted the Bali Hai was a nonconforming use in a Residence A Zoning District, and stated that commercial businesses are prohibited in residential zoning districts unless they are a nonconforming use. He recalled that the Palumbo brothers had requested a Special Permit from the ZBA in order to change the nonconforming use.
“Based on the evidence and applying the applicable standard, I find that the board erred in denying the application for a Special Permit,” Foster wrote. “The proposed apartment building may not be the Bali Hai, but it will not be substantially more detrimental to the neighborhood than the Bali Hai was or a new restaurant would be.”
Foster noted that Section 5.2 of the town’s Zoning Bylaw stipulates the ZBA may award a Special Permit to change a nonconforming use “only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” He recalled that ZBA members Anthony Moccia and Andy Youngren voted in favor of the developers’ request for a Special Permit while ZBA Chairman Brian Shaffer voted no. State law requires three-member ZBAs such as Lynnfield’s to unanimously approve requests for zoning relief such as Special Permits or variances.
“In its decision, the board stated that the two members who voted in favor of granting the Special Permit did so because the proposed change in use was to a residential use in a residential district, and therefore not substantially more detrimental to the neighborhood,” Foster wrote. “The member who voted against granting the Special Permit found that the proposed use ‘would be substantially more detrimental to the neighborhood than the existing restaurant use.’ That member considered that the town of Lynnfield only allowed apartment buildings to be constructed for several proposes under General Laws Chapter 40B and as a development under General Laws Chapter 40R, where ‘the town went through extensive negotiations with the developer that resulted in a package of benefits for the town’ that outweighed potential harms of the residences, but that this project’s ‘zoning change’ was requested ‘without the same benefits to the town.’”
Foster also noted that the town’s argument that the costs associated with educating children living in the apartment building would be detrimental to the community violated the Massachusetts Constitution’s education clause.
“Denial of a Special Permit on the grounds that increased tax revenue would not support the education of the children living therein is tantamount to conditioning the availability of public services on the ability of the residents to pay for them, which I find to be unreasonable and arbitrary,” Foster stated.
Foster also disagreed with the town’s argument that the 23-unit apartment building would result in more public safety costs and would negatively impact abutters’ property values. He also dismissed the town’s claims the project would increase traffic and would hurt the local economy.
“There is simply not enough evidence before me to conclude that the density of the residents of 23 one- and two-bedroom apartments will cause the project to be substantially more detrimental than the density of the existing restaurant use,” Foster wrote. “The board is obligated to apply its own standards rationally. It may not conclude that an expansion will be substantially more detrimental to the neighborhood in the absence of creditable evidence. The board cannot deny a permit on the basis that a use is not permitted under the bylaw — otherwise the board could circumvent General Laws Chapter 40A, Section 6, and its own bylaw by fiat.”
Reaction
Atty. Ted Regnante told the Villager that, “The Palumbo brothers are very happy with the favorable Land Court decision and fully intend to move forward with the apartment project.”
“They intend to file now for Site Plan approval for the construction as contemplated in the Land Court decision,” said Regnante. “They may, however, have to temporarily keep the restaurant use to protect the nonconforming status.”
Atty. Jesse Schomer, who represented the Palumbo brothers along with Atty. David Gallagher during the trial, echoed Regnante’s viewpoint.
“The decision of Justice Foster, together with a recent decision of Justice Speicher that was cited in the decision, should be seen as an emphatic message to zoning officials across the commonwealth that they may not deny or condition zoning approvals based on prospective costs associated with educating schoolchildren because to do so would abridge the right to a public education that is afforded to all children under the Massachusetts Constitution,” Schomer stated.
Town Counsel Tom Mullen said the Board of Selectmen and the ZBA have 30 days to decide whether to appeal Foster’s decision.
“That will be up to my clients,” said Mullen.
Selectmen Chairman Chris Barrett declined commenting on Foster’s decision.
Former Town Moderator Arthur Bourque, who testified against the apartment building project during the Land Court trial as well as during public hearings held by the Planning Board and the ZBA, disagreed with Foster’s ruling.
“It is what it is,” said Bourque. “The court made a decision and I will abide by the decision even though I don’t agree with it.”
