DAVID W. BROSSI & Another v. TOWN OF GRAFTON & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-833

DAVID W. BROSSI & another1

vs.

TOWN OF GRAFTON & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David W. Brossi and Brigati Village, LLC (together, Brigati

Village), filed an application with the planning board of

Grafton (board) seeking a special permit and site plan approval

to build a multi-family residential development. R5 357. The

project required waivers from a provision of the town of

Grafton's (town) subdivision rules imposing length restrictions

on dead-end streets. R5 360. The board denied the waivers and

on that basis denied Brigati Village's application. R1 534-55.

1 Brigati Village, LLC. R1 20.

2Planning Board of Grafton and David Robbins, Robert
Hassinger, Linda Hassinger, Justin Wood, Prabhu Balaji
Venkataraman, and Maura McCormack, in their capacities as
members of the Planning Board of Grafton. R1 20.
After Brigati Village sought review under G. L. c. 40A, § 17, a

Land Court judge first remanded the case to the board for

further proceedings and then upheld the denial of the waivers

after remand, despite finding several legal and factual errors

in the board's remand decision. R5 357-58, 376. Judgment

entered accordingly, and Brigati Village appeals. R5 377-80.

We reverse.

Background. Brigati Village filed its application with the

board in February 2019. R5 360 (FF 7). Its original proposal

did not create any dead-end streets but required extensive

landscape changes to create an accessway to Church Street, which

fronts the property. R5 360-361 (FF 7). Even with those

changes, drivers trying to enter or exit via the accessway would

not have adequate views of oncoming traffic on Church Street.

R5 360 (FF 7). After town officials expressed concerns about

the design, Brigati Village modified its proposal to eliminate

the Church Street accessway by creating two dead-end streets,

measuring 926.6 and 1,052.8 feet in length. R5 361-362 (FF 7).

The town's zoning bylaw required Brigati Village to obtain

a special permit before it could begin construction. R5 359-360

(FF 3, 7). In turn, to obtain a special permit, Brigati Village

needed the board to waive a provision in the town's subdivision

rules requiring that dead-end streets not exceed 500 feet. R5

359-360 (FF 4-6). The subdivision rules expressly allow the

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board to waive this requirement "[i]n the unusual event that

topography or other site conditions justify" a waiver and if

"there is a substantial public or conservation benefit to be

achieved." R5 360 (FF 6).

After holding public hearings on Brigati Village's

application, the board found that the project design offered

several public and conservation benefits, including avoidance of

major topographic changes and minimization of tree removal and

wetland disturbance, and that the application was "in harmony

with the general purpose and intent of the" bylaw. R1 532 (FF

58), 529-531 (FF 40-42). The board further found that "ingress

and egress to the property and proposed structures thereon with

particular reference to automotive and pedestrian safety and

convenience, traffic flow and control and access in case of fire

or catastrophe, are adequate." R1 531 (FF 48). Nonetheless,

for reasons that are not discernible from the decision, the

board voted three to two to deny Brigati Village's request to

waive the dead-end street restriction. R1 533. Based on the

denial of the waivers, the board then voted to deny Brigati

Village's application. R1 534-35.

Brigati Village filed a complaint for review under G. L.

c. 40A, § 17. R1 542. After a bench trial, the judge concluded

that the board failed to state adequate reasons for denying the

waivers; in particular, the board failed to explain why it

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granted a waiver in 2003 to a comparable development, Hill View

Estates 1 (Hill View), but "declined without explanation Brigati

Village's request for the same waiver." R1 559. The judge thus

remanded the matter to the board to reconsider or to provide

further explanation for its decision. R1 541, 558-561.

On remand, without holding another public hearing or taking

any additional evidence, the board again denied the waivers,

this time by a vote of four to one. R1 539. In its remand

decision, the board explained that various factual differences,

such as the length of the dead-end streets and the number of

units, distinguished Brigati Village's project from Hill View.

R1 538. The board then found "[u]pon reconsideration" that

"adequate access will not be provided to all lots in the

development by ways that will be safe and convenient for travel"

and that there was no "substantial public or conservation

benefit to be achieved by granting of the waiver." R1 539.

Brigati Village filed a second complaint for review under

G. L. c. 40A, § 17. R1 20. The same judge held another bench

trial, after which he issued a detailed decision upholding the

board's denial of the waivers. While observing that the board's

remand decision contained "multiple errors of law and fact" and

could not be squared in some ways with its original decision,

the judge concluded that, "under the correct criteria" and based

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on the evidence at trial, the board had the discretion to deny

the waivers. R5 376. This appeal followed.

Discussion. In an action under G. L. c. 40A, § 17, a trial

judge makes factual findings de novo without giving weight to

those of the board. See Wendy's Old Fashioned Hamburgers of

N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381

(2009) (Wendy's). On appeal we then accept the judge's factual

findings absent clear error, while giving deference to the

board's legal conclusions based on the facts as found by the

judge. See id. at 383. Although the standard we employ is

highly deferential to the board's interpretation and application

of the bylaw, the board's discretion "is not limitless." Id.

For instance, "[d]eference is not appropriate when the reasons

given by the board lacked substantial basis in fact" or were

"unreasonable, whimsical, capricious or arbitrary" (quotations

and citations omitted). Shirley Wayside Ltd. Partnership v.

Board of Appeals of Shirley, 461 Mass. 469, 475 (2012).

Here, Brigati Village argues that the board's denial of the

dead-end street waivers should be overturned for two main

reasons: the board is bound by its prior practice of routinely

granting similar waivers (Bl Br 29-36), and the board's remand

decision lacked a substantial factual basis (Bl Br 36-47). With

respect to the first argument, we agree with the judge that,

with the exception of Hill View, the prior waivers identified by

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Brigati Village have little relevance to whether the board acted

arbitrarily in this case. Those prior waivers involved major

residential developments governed by section 5.3.14 of the bylaw

-- which "strongly encourage[s]" the board to waive the dead-end

street restriction "in the interests of good design" (R5 145) --

or developments that were not subject to roadway design

standards. R5 366-368 (FF 24-28, major/flexible developments);

R5 75 (defining flexible development as type of major

development); R1 550 (FF 34, minor development). In contrast,

Brigati Village seeks to build a multi-family residential

development, to which section 5.3.14 does not apply. R5 365 (FF

19), 371 n.3. This difference in legal standards is reason

alone why those prior waivers did not compel the board to grant

Brigati Village's request. And with respect to Hill View, which

was also a multi-family residential development, Brigati Village

has not shown how the judge erred by following Lakeside Builders

v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 848 (2002),

which held that a planning board was not bound to grant a dead-

end street waiver merely because it had granted a waiver for a

similar project eight years earlier. R5 375-376.

Brigati Village's second argument fares better, however.

Although the board was not bound by its precedent to grant the

waivers, it still had to provide adequate reasons for denying

them. See Wendy's, 454 Mass. at 387 ("where no . . . reasons

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are given, . . . a reviewing court cannot be satisfied that a

board's actions are not arbitrary, a pretext, or otherwise

impermissible"). As we read the board's remand decision, the

denial appears to be based in part on Brigati Village's

purported failure to put forward any "substantial public or

conservation benefit" that would be achieved from granting the

waivers. R1 539. But the judge concluded that this finding

could not be squared with the board's original decision, which

"found a host of public and conservation benefits associated

with not building the Church Street accessway." R5 372. The

board does not argue that the judge erred in this respect, nor

does it rely on the absence of a "substantial public or

conservation benefit" as a basis to support its remand decision.

Instead, the board argues that it was justified in denying

the waivers because of safety issues caused by inadequate access

for emergency vehicles. R Br 21-27. But this rationale also

contradicts the board's original decision. As mentioned, the

board originally found that "ingress and egress to the property

and proposed structures thereon with particular reference to

automotive and pedestrian safety and convenience, traffic flow

and control and access in case of fire or catastrophe, are

adequate." R1 531 (FF 48). The original decision further

states that "Fire Department access and circulation has been

accommodated." R1 531 (FF 48). The board did not take any

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additional evidence on remand and did not offer any rational

explanation for why it made contradictory findings on the same

evidentiary record.3 Denying the waivers based on alleged safety

concerns was therefore arbitrary and capricious. See Wendy's,

454 Mass. at 386 (board's decision denying modification of

special permit was arbitrary and capricious where it

"contain[ed] no explanation or permissible inference as to why"

modification would be detrimental to public or inconsistent with

purpose of zoning bylaws).

To the extent the board argues it had blanket discretion to

deny the waivers, we disagree. R Br 22-24. While a local board

certainly has broad discretion to approve or deny a permit, it

must still supply the reasons for its decision, which must in

turn be based on a rational view of the facts. See Wendy's, 454

Mass. at 385-387. For the reasons discussed, the board's remand

decision does not meet this standard and thus cannot stand. See

id.; McLaughlin v. Zoning Bd. of Appeals of Duxbury, 102 Mass.

App. Ct. 802, 814 (2023).4

3 Brigati Village claims that the evidence at trial also
supported the board's original findings that emergency access
was adequate. Bl Br 44. The board does not argue otherwise,
and the judge did not make any findings of his own that
contradict the board's original findings.

4 Deciding the appeal on this basis, we need not reach
Brigati Village's arguments that the board acted with ulterior
motive and that the judge erred in allowing a board member to
testify at trial. Bl Br 49-53.

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Ordinarily, when a board fails to state adequate reasons

for its decision, we would order a remand to the board for

further proceedings. See Wendy's, 454 Mass. at 382-383. But

when a remand would be "futile or would postpone an inevitable

result," granting particular relief is appropriate. Id. at 388.

Considering the age and history of this case, we conclude that

another remand to the board would delay an inevitable result and

not serve the interests of justice. See id. at 388-389;

MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 520

(1976); Crittenton Hastings House of Florence Crittenton League

v. Board of Appeal of Boston, 25 Mass. App. Ct. 704, 715 (1988).

Accordingly, the judgment is reversed, and the matter is

remanded for entry of a new judgment annulling the board's

decision and directing the board to proceed expeditiously to

issue the special permit and site plan review with the requested

waivers.

So ordered.

By the Court (Rubin, Shin &
Singh, JJ.5),

Clerk

Entered: February 5, 2026.

5 The panelists are listed in order of seniority.

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