MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs (collectively, the neighbors) appeal from a judgment, after a bench trial, affirming the decision of the Salem zoning board of appeals (board) granting Richard Jagolta a special permit to allow him to convert Unit 1 of 107 Federal Street (Unit 1), from a nonconforming commercial use to a nonconforming residential use. For essentially the reasons explained in the trial judges comprehensive decision, we affirm.
We begin by setting out the parameters of the trial judges role in reviewing the decision of the board. Judicial review of a boards decision “typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003). In the first inquiry, “an essentially legal analysis is required to decide whether the boards decision was based on ․ a standard, criterion or consideration not permitted by the applicable statutes or by-laws.” Id. For the second inquiry, however, “[a]ssuming that the board has drawn on proper criteria and standards, the court then must determine, on the basis of the facts it has found for itself, whether the board has denied the application by applying those criteria and standards in an ‘unreasonable, whimsical, capricious or arbitrary’ manner.” Id. at 74. “[A] judge must give ‘substantial deference’ to a boards interpretation of its zoning bylaws and ordinances.” Wendys Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009), quoting Manning v. Boston Redev. Auth., 400 Mass. 444, 453 (1987). “While a judge is to give ‘no evidentiary weight’ to the boards factual findings, the decision of a board ‘cannot be disturbed unless it is based on a legally untenable ground’ or is based on an ‘unreasonable, whimsical, capricious or arbitrary’ exercise of its judgment in applying land use regulation to the facts as found by the judge.” Wendys, supra at 381-382, quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). See Federman v. Board of Appeals of Marblehead, 35 Mass. App. Ct. 727, 730 (1994) (“Zoning boards are not bound to grant a special permit. Their power to grant or deny such permits is invested with discretion, and a decision of a local board will not be disturbed unless it is based on an untenable ground or is unreasonable, whimsical, or capricious -- that is to say, arbitrary”).
As to our review on appeal, “the judges findings of fact will not be set aside unless they are ‘clearly erroneous’ or there is ‘no evidence to support them.’ ” Wendys, 454 Mass. at 383, quoting DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985). That said, “[t]he judges conclusions of law are not binding on” us. DiGiovanni, supra. “With respect to conclusions regarding interpretations of a zoning ordinance and their application to the facts, an appellate court remains ‘highly deferential’ ” to the zoning boards decision even if the facts would support the opposite determination. Wendys, supra, citing Britton, 59 Mass. App. Ct. at 74.
The question for the trial judge in this case was whether the board acted capriciously or arbitrarily in granting Jagolta a special permit to convert Unit 1 from commercial to residential use. The answer to this question turns on section 9.4.2 of the zoning ordinances of Salem, which provides:
“Special permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this Ordinance, the determination shall include consideration of each of the following: 1) Community needs which are served by the proposal; 2) Traffic flow and safety, including parking and loading; 3) Adequacy of utilities and other public services; 4) Neighborhood character; 5) Impacts on the natural environment including view; and 6) Potential economic and fiscal impact, including impact on City services, tax base, and employment.”
After public hearing, the board found that the requirements of section 9.4.2 were met, and that “[t]here will be less impact on the neighborhood regarding traffic flow and safety,” “[t]he proposal fits with the neighborhood character,” and “any adverse effects of the proposed use will not outweigh its beneficial impacts to the City or the neighborhood as a residential dwelling unit and the use is consistent with the existing building and neighborhood.”
The trial judge concluded that the board had not acted arbitrarily or capriciously in granting the special permit. Among other subsidiary findings, the judge found “that a residential unit used by only a small number of people would have less impact on the neighborhood in terms of traffic flow and safety than a commercial use where any number of people might be coming and going,” that eliminating Unit 1s dedicated commercial parking space on the street would be beneficial to the city and neighborhood,
4
and that Jagoltas proposed exterior renovations “promise to restore the buildings historic character.” The judge also found that the Salem Historical Society welcomed Jagoltas proposed renovations to the exterior of the building, and that the buildings “current condition makes it stick out from the many other well-maintained historic buildings in the neighborhood,” and that the “property ha[d] fallen into some disrepair in recent years.” She further found that creating a three-unit residential building in the R-2 zone was not out of keeping with the neighborhood, as there “are several other historic buildings in the neighborhood that have been converted to multifamily use of more than two residential units over the years.” In light of the judges findings, which were made after a six-day trial that included a site visit, we see no error in her ultimate conclusion that the board did not act arbitrarily or capriciously in determining that Jagolta had met the showing required by section 9.4.2 for the issuance of a special permit.
We turn to the neighbors’ remaining arguments. First, the neighbors contend that the judge erroneously found that Unit 1 had three “legal” parking spaces. This argument is based on a misreading of the judges decision. What the judge found was that the quitclaim deed conveyed “an easement for the exclusive right to use the one (1) parking space for use by the Unit as shown on the” site plan, plus “an area measuring 5’5” by 17’ extending from Beckford Street along the Southerly side of the” condominium “as an easement as contemplated by Sec. (e)(i) of the Master Deed.” Both findings were well grounded in the evidence. As to the area opening from Beckford Street, the site plan referenced in the master deed showed an “area reserved to Declarant[
5
] for easement/license/lease to third party” (Beckford St. easement area). The master deed stated that, although the Beckford St. easement area is a common area, it “historically has been used as a parking area by the residence abutting the premises to the South and is reserved to the Declarant for his own use or for the granting of temporary or permanent easements or licenses to the Condominium, to third parties, or to himself as a unit owner.” These rights were assigned in 2016 to Jagolta in a quitclaim deed that provided “[s]aid rights are for the exclusive use of such area by the owner of Unit 1.”
As to the area opening from Federal Street, the site plan shows an area designated “Parking Exclusive Use Unit 1” that opens up from Federal Street (Federal St. easement area), and the master deed provides that “[t]he owner of Unit 1 shall have, as an appurtenance to Unit 1, an easement for the exclusive use of th[is] area.” Although the master deed and site plan did not divide the Federal St. easement area into parking spaces, it appears that the area is, as a practical matter, large enough to accommodate two cars. The judge determined, however, that tandem parking is not legal in Salem, and she made no finding that the Federal St. easement area constitutes two legal parking spots.
Ultimately, though, the neighbors’ arguments concerning the two easement areas misses the mark for a more fundamental reason. Specifically, the question for the board (and the judge) was whether the adverse effects of the proposed residential use would outweigh its beneficial impacts. Here, the evidence was that both the Beckford St. easement area and Federal St. easement area had historically been used for parking during the prior commercial uses of Unit 1. The board and the judge could, accordingly, conclude that a continuation of parking within the easements would not add any detriment to the neighborhood, particularly considering that the on-street commercial parking spot would be eliminated by changing Unit 1 to residential use.
The neighbors also argue that the board erred in its interpretation of Condition #7 of Christine McClearns 2006 special permit. That condition stated:
“This Special Permit will expire with this business (Studio 107 and ancillary art gallery) and any other business seeking to occupy this space is required to apply for a new Special Permit.”
Focusing only on the first part of this condition, the neighbors argue that McClearns 2006 special permit became invalid (“expired”) when she closed her business and, accordingly, a new special permit could not be obtained. But the board was entitled to read the condition as a whole, not as though the first half of the condition invalidated the second. The board adopted town counsels view that the closure of McClearns business did not invalidate the special permit, but that closing the business triggered the requirement that any future occupant return to the board to obtain a new special permit. We give substantial deference to this reasonable reading of Condition #7 of the 2006 special permit.
The neighbors also argue that the judge erred in finding that McClearns 2006 special permit expired because she did not “substantially use” Unit 1 as a graphic design business and art studio within twenty-four months of being granted the special permit, as required by section 9.4.7 of the zoning ordinances.
6
The judge found that McClearn began using Unit 1 as a graphic design studio and art gallery in 2006, and for at least two years thereafter. The neighbors have not shown that the judges findings in this regard are clearly erroneous. Multiple witnesses testified that they saw McClearn at a desk using a computer within Unit 1, there were pieces of art hung on the walls of the unit, and there was an exterior sign advertising the design studio during the required timeframe. This was sufficient to establish substantial use of the special permit.
The neighbors also argue that the judge should not have credited Jagoltas testimony that he did not intend to use Unit 1 for short-term rentals. But during a bench trial, such as occurred here, it is the trial judges prerogative to determine the credibility of the witnesses, see Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509-510 (1997), and there is no reason for us to disturb that determination here. The neighbors also quarrel with the judges view that Jagolta is currently precluded from offering Unit 1 for short-term rental under section 15-6(4) of Salems zoning ordinances.
7
But the judges conclusion was well-grounded in the evidence that, at the time of trial, Unit 1 was not occupied by Jagolta, nor had he been engaged in short-term rental of Unit 1 when the ordinance went into effect.
8
We have considered the neighbors’ remaining arguments and find them to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
FOOTNOTES
4
. Federal Street is a narrow one-way street. Although parking generally is only allowed on the north side of the street, the commercial parking space for 107 Federal Street is on the south side of the street. Arlander testified that eliminating the singular commercial space would make it easier for emergency vehicles to travel on Federal Street.
5
. Keith McClearn and Christine McClearn were collectively defined as the “Declarant” in the master deed, and they owned Unit 1. The neighbors do not challenge that the McClearns’ rights to the Beckford Street easement followed with Unit 1.
6
. “Special permits shall lapse if a substantial use thereof or construction thereunder has not begun, except for good cause, within 24 months following the filing of the special permit approval (plus such time required to pursue or await the determination of an appeal referred to in G. L. c. 40A, § 17, from the grant thereof) with the City Clerk.”
7
. Section 15-6(4) provides, in pertinent part, that “[a]n operator may use his or her non-owner occupied unit as a short-term rental only if the operator was engaged in the short-term rental of the property as of the date this ordinance was filed with the council and provided that the operator obtains a special permit from the zoning board of appeals.”
8
. The judge did not reach, nor do we, the question whether Jagolta, once he becomes an owner-occupant, will be permitted to engage in short-term rentals under a different provision of section 15-6.