BOSTON — Just four days after securing the licenses it needed to open an American pub-style restaurant on 160 Moulton Drive — site of the former Bali Hai restaurant — developers Matthew and David Palumbo have switched gears, thanks to Land Court ruling that the town’s Zoning Board of Appeals (ZBA) had improperly denied their application for a special permit to build an apartment complex.
The decision, released Friday, opens the door for the brothers to proceed with a 23-unit complex on the 1.4 acre site.
“The Palumbo brothers are very happy with the favorable Land Court decision and fully (intend) to move forward with the apartment project,” said the brothers’ attorney, Theodore Regnante. “They intend to file now for Site Approval for the construction as contemplated in the Land Court Decision,” adding that they may have to “temporarily keep the restaurant use to protect the nonconforming status.”
Bali Hai, which closed its doors to the public on New Year’s Eve in 2018, had operated as a legal pre-existing non-conforming use. The brothers, doing business as 160 Moulton Drive LLC, sought to use the property for a different non-conforming use, but their plans were rejected by the ZBA.
The LLC filed a Complaint in Land Court, naming the ZBA and its members — Brian Shaffer, Anthony Moccia, Anders Youngren, Eric Chisolm and John Fallon — and the Town of Lynnfield as defendants. The case was tried before Judge Robert B. Foster on Jan. 28-30, 2020.
“After reviewing all 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 permit by the Board,” Foster wrote. “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 LLC issued.”
In reaching its decision, the court stated that the “Board’s denial of the special permit must be upheld if the facts could be rationally interpreted to show that the project would be perceptibly more harmful to the immediate environs and close neighbors of the property than the restaurant use was or will be.”
The court noted that the town had argued in its post-trial brief that many aspects of the apartment project would have detriment consequences to the community, including financial impact to town schools caused by a projected increase in school-aged children; negative impact in aesthetic qualities caused by having a larger building compared to the smaller ones in the neighborhood; negative impact on density; the loss of a neighborhood amenity (a restaurant); fewer opportunities for employment, and increased traffic and congestion.
The court rejected all of the town’s arguments, in most cases saying there simply was not enough evidence to support the town’s claims. In the case of the town’s argument about the potential impact to the schools, the court noted that a November Land Court decision concerning a Gloucester apartment project, held that “denial of a special permit is a denial of children’s constitutional right to a public education” under the education clause of the state constitution.
Regarding the town’s claims that an apartment complex would result in a lost amenity, the court stated that for “the Board to base its decision on what is essentially a preference for a sports bar is arbitrary and capricious.”
The property has been the subject of several development proposals in recent years. About two years after closing, Bali Hai owners James W. Lee Revocable Trust and Lillie Yee Revocable Trust had offered the property for sale at a price of $2.5 million, following which two developers stepped forward with plans to develop the 1.4 acre parcel into apartments. The property was sold to the current owner on Dec. 31, 2018 for $600,000.
A four-story, 68-unit plan by Monastiero Development proposal was shot down by neighbors, following which, the Palumbos presented a proposal for a three-story complex calling for 32 one-and two-bedroom units with rents ranging from $2,200-$3,300. After neighbors voiced their opposition and the Planning Board rejected the proposal, the project was scaled back to two stories with 23 units. After the ZBA rejected that proposal, the Palumbos pivoted to a restaurant proposal pending the outcome of the appeal in Land Court.
At the most recent Select Board meeting, the Palumbos’ MDK Ventures LLC’s (MDK) proposal for the American 160 Bar & Grill restaurant received unanimous support from the Board, which approved MDK’s application for all-alcoholic beverages, weekly entertainment, common victuallers and automatic amusement licenses by a 3-0 vote following a public hearing.
