No. 99-00732Commonwealth of Massachusetts Superior Court BRISTOL, SS
September 27, 2000
AGNES, J.
Pursuant to G.L.c. 40A, § 17, the plaintiff, B.J.’s Wholesale Club, Inc. (hereafter, “BJ’s”), seeks judicial review of a decision by the defendant, Zoning Board of Appeals of the City of Attleboro (hereafter, “ZBA”), denying the plaintiff’s request for a special permit to construct and operate a gasoline station in the parking lot of its wholesale club store adjacent to Route 1 in Attleboro, Massachusetts. The case was tried without a jury on Thursday, September 21, 2000. Initially, the plaintiff also sought judicial review from the denial of its request for a second special permit to reduce the required number of parking spaces on the site, but has since determined that its proposed plan satisfies the zoning ordinance in that regard. Thus, only one decision by the ZBA is before the court for review.
BACKGROUND 1. Stipulated facts. Prior to trial, the parties agreed and stipulated to certain facts relating to this case as follows. The plaintiff owns property located at 287 Washington Street in Attleboro, Massachusetts (hereafter, “the premises”) which is located in a Planned Highway Business District under the zoning ordinances of Attleboro. See exhibit 1 (Zoning Ordinance of Attleboro). The lot has frontage of 50 feet, a depth of 820 feet and a total area of 9.71 acres. BJ’s operates a retail shopping center on the premises. In January, 1999, BJ’s applied to the ZBA for a special permit to operate a self-service, automobile fueling station on the premises. A public hearing was held on February 18, 1999. No opposition was expressed at that time. A decision denying the request for a special permit was filed by the ZBA on May 10, 1999. Exhibit 2. The plaintiff sought review of the adverse decision by the ZBA in the Superior Court by filing a complaint to which the ZBA filed a timely answer. Thereafter, on July 13, 1999, the parties filed a joint motion to remand the case back to the ZBA on grounds that they had reached a tentative agreement on modifications to the site plan that would allow for further review and reconsideration by the ZBA. The motion was allowed by the Superior Court which retained jurisdiction over the matter.
A second public hearing was conducted by the ZBA on September 29, 1999. The site plan prepared by BJ’s was modified to address issues of traffic congestion and circulation. According to a memorandum submitted by the Planning Department of the City of Attleboro, which is part of the record in this case, the revised site plan submitted by BJ’s satisfactorily addressed the traffic congestion issues. The Planning Department also recommended that if the applicant adopted the suggestion to use a “raised divider” to improve traffic circulation (a suggestion that was adopted by BJ’s and is part of their revised site plan)[1] , that the ZBA should consider granting the special permit unless there were “warranted” objections from parties in interest. See exhibit 4.
BJ’s submitted evidence from its traffic consultant, Vanasse and Associates, Inc.See exhibit 5. Several area residents, including the city council president, testified in opposition to the special permit. On December 16, 1999, the ZBA issued a second decision again denying the request for a special permit. Exhibit 3. The plaintiff’s earlier appeal was reinstated.
2. Findings of Fact. Based on the credible evidence presented at the hearing held on September 21, 2000, I make the following findings of fact. Mr. Peter Hopley is an Assistant Vice-President of BJ’s and the manager of site development and design for new gas station facilities. BJ’s is a retail outlet that sells a wide range of products to its members as well as to the public. For a $35.00 annual fee, members can shop at BJ’s and achieve savings on the costs of many products compared to their average retail costs. Non-members also can shop at BJ’s but they are required to pay a 5% surcharge on the goods they purchase. The proposal for a gas station inside the BJ’s parking lot is part of an effort to attract more members and increase the total value of their purchases in order to, in turn, increase overall profits for the company. The proposed use is for a self-service, gas filling station that will not include any service bays or offer any other products for sale. It will not be directly accessible from either of the abutting roadways (Washington Street and Highland Avenue). See generally exhibits 10 through 14 (illustrations of proposed station and photograph of comparable facility at another BJ’s location).
BJ’s pricing structure for gasoline is such that members should expect to pay 6-10 cents lower per gallon than the average retail cost of gasoline. Non-members should expect to pay about 1 cent less per gallon. Based on an analysis of data about people who shop at other BJ’s locations where gas stations are in place, it appears that 95% of all customers who buy gasoline also shop in the store and buy other goods, and only about 5-6% of customers come to the location solely to purchase gasoline. This is consistent with predictions about consumer behavior because (1) the gasoline station is not easily accessible to persons driving along the highway who must get off the road and drive into a commercial parking lot to get to the gas station, and (2) consumers have many other choices of where to purchase gasoline that are easy to access namely, traditional, roadside gas stations. There are several existing gas stations in the area of BJ’s, including a large Shell station at the corner of Route 1 and Route 123.
The main entrance to BJ’s is by means of a four lane driveway (2 lanes entering and 2 lanes exiting) from Route 1 in Attleboro (Washington Street). Highland Avenue abuts another side of the premises. After a short distance, the four lane driveway divides into a Y-shape with 2 lanes (one in each direction) allowing vehicles to proceed to the BJ’s parking lot and 2 lanes (one in each direction) allowing vehicles to proceed to the South Attleboro Shopping Center. The configuration of the entrances, the exits, and the layout of the current parking lot and proposed gas station, are shown on a number of exhibits which were received in evidence and marked as exhibits in this case. See exhibits 7 through 21. The store itself is set back from Route 1 at the end of the property opposite the roadway, and built into a terraced hillside. The proposed location for the gas station is close to the main entrance to the parking lot and away from the entrance to the store.
The proposed site plan calls for minimal signage relating to the gas station. BJ’s will not employ any street signs to advertise that it sells gasoline on its premises, and the gas station will not be visible to motorists traveling along Route 1 (Washington Street) or along Highland Avenue. Visitors to the site will not see any sign for gasoline until after they enter BJ’s parking lot.
Without the construction of the gas station, there are 605 parking spaces in the BJ’s parking lot adjacent to the store. The addition of the proposed gas station along with the reconfiguration of the existing parking lot will result in a revised total of 579 parking spaces which meet the requirements of the Attleboro zoning ordinance.
There are only a small number of abutters to this parcel and their vantage point is more than 20 feet above the BJ’s parking lot.[2]
There was testimony provided by Mr. Craig Gendron, a hydrologist and engineer who holds professional engineering licenses in 15 states including Massachusetts, with extensive experience in the design of fueling stations. His curriculum vitae is part of this record. See exhibit 6. I found his testimony to be generally credible. In particular, based on his testimony, I find that there is no evidence that the addition of the gas station will increase the noise level in the parking lot or in the area of the abutters. There is no evidence that the addition of the gas station will create any light or glare visible to abutters above that which already exists in the parking lot. In terms of the lighting, I find that all lighting for the gas station will be located inside a canopy that covers the pump areas, will be directed downward, and will be barely perceptible to any of the abutters. This includes the security lights (like those already in place) which remain on when the gas station is not operating. See exhibits 15, 16 and 17.
The proposed gas station is to be built on a raised and landscaped island to keep the flow of traffic into the BJ’s parking lot from simply entering the gas station on its way to secure a parking space. Instead, traffic flow will be directed by signs that will give motorists entering the parking lot the option of entering the gas station or continuing on by it to a parking space. Furthermore, vehicles already parked will not have automatic or unimpeded access into the gas station, but rather will also have to observe a traffic flow pattern by means of signs and devices that will channel said vehicles into predetermined lanes to enter the gas station or to exit from the parking lot. Vehicles which are parked in the lot will have unimpeded access to the exits without having to enter the gas station. See exhibits 14, 18, and 19. “Stop” signs have been both added and moved in the area of the entrance to the parking lot from Route 1 to increase the area in which vehicles can que-up while waiting to enter or exit to minimize the potential for vehicles to be backed up on the roadway or in the parking lot itself, even though there is no evidence which suggests that either possibility is likely. These are some of the ten changes that were made by BJ’s in the proposed site plan following the ZBA’s initial denial of the special permit.
There also was testimony by Mr. Jeffrey Dirk, a registered professional engineer in Massachusetts with a specialty in traffic engineering. His curriculum vitae also is part of the record in this case. See exhibit 22. He testified about a traffic study he and his firm conducted and submitted to the plaintiff, which also is part of the record in this case. See exhibit 5.[3] I find his testimony to be generally credible. Based on the traffic analysis conducted by Mr. Dirk, only about 200 vehicles use the BJ’s parking lot during its peak load period (Saturday, mid-day). See exhibit 21.
In terms of increased traffic flow, the impact of the proposed gas station will be minimal. 94% of those vehicles which are expected to use the BJ’s gas station are vehicles which will be entering the parking lot to shop at BJ’s in any case i.e., vehicles that will visit BJ’s store with or without the gas station. The 6% increase in traffic, amounts to twenty-seven new vehicles (54 trips) entering the site on an average weekday, nine vehicles (18 trips) on weekday evenings, and seven vehicles (14 trips) on Saturday mid-day. This increased traffic flow means on average that one additional vehicle per hour will enter and exit from the BJ’s parking lot during its hours of operation. Available parking space on the existing site is more than sufficient to accommodate this increased traffic flow. See exhibit 21. Furthermore, design changes relating to the traffic flow in and out of the BJ’s parking lot are such that this increased traffic flow will not result in vehicles backing up on Route 1 as they enter the BJ’s parking lot, or in the BJ’s parking lot as they exit.[4]
There is no evidence of an adverse impact on pedestrian safety that will result from the proposed use. There is no pedestrian traffic permitted in the area where vehicles enter and exit the site from Route 1. Abutting commercial users (Chucky Cheese and the Shopping Mall) have their own parking lots. In fact, the proposed changes by BJ’s will make the site safer for pedestrians than it currently is even with the addition of the gas station. Visual observations by Mr. Dirk and others at other BJ’s locations in which gas stations are situated indicates that motorists observe the signage and follow the established traffic patterns to the same extent after the installation of the gas station as they do before it is installed.
In terms of the potential for traffic volumes to increase in the future, based on the data supplied by Mr. Dirk and his analysis of public behavior at this and other BJ’s facilities, I find that if BJ’s is permitted to operate a gas station at its Attleboro location, between 94% and 99% of the vehicles that enter the site will be BJ’s club members, and that there is no evidence in the record to permit an inference that there is a reasonable possibility that if a gas station is permitted to operate on the site there will be a significant increase in traffic flow attributable to non-members.
With regard to specific concerns about increased traffic flow expressed by the ZBA at points designated “A”, “B,” and “C,” on a sketch of the entrance to the BJ’s parking lot accompanying their decision, the evidence does not support a finding that there will be any undue or significant traffic congestion. Nor does the evidence support a finding that there will be any impairment of or impact on pedestrian safety. Nor does the evidence support a finding that the proposed gas station will have a severe, undesirable effect or any significant effect on the neighborhood.
DISCUSSION 1. Local zoning law and special permits. Under the Zoning Ordinances of the City of Attleboro, Table of Use Regulations, § 17-3.4 (as amended 4/28/98) (hereafter. “Zoning Ord.”), see exhibit 1, an automobile service station is permitted in a Planned Highway Business District, which includes the BJ’s property involved in this case, only upon issuance of a special permit. See Zoning Ord. §§ 17-3.1 17-3.4. “Special permits govern that class of uses that lie between those that are prohibited and those that, because they comply with the zoning code in all detail, are allowed as of right. See Bobrowski, Massachusetts Land Use and Planning Law § 9.1, at 342 (1993).” Duteau v. Zoning Board of Appeals of Webster, 47 Mass. App. Ct. 664, 667-68 (1999). The general rule is that “[s]pecial permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and . . .such permits may also impose conditions, safeguards and limitations on time or use.” G.L.c. 40A, § 9. The burden of proof rests on the party who seeks the special permit. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148, 154-55 (1977).
Special permits are governed by section 17.9 of the Attleboro Zoning Ordinance. Under section 17-9.4 of the Zoning Ordinance, certain specified conditions must be met before a special permit is issued. The two specific conditions that the ZBA determined in this case were not satisfied are as follows: “2. The requested use will not create undue traffic congestion, or unduly impair pedestrian safety. . . . .4. The requested use will not have a severe undesirable effect on the neighborhood, public and environment that would be lessened significantly by denying or modifying the requested permit.” The Zoning Ordinance goes to describe in detail the process that must be followed by a person seeking a special permit and the procedures that must be observed by the ZBA.
2. The ZBA decision. The ZBA issued a written decision on December 16, 1999 denying the application by BJ’s for a special permit. Exhibit 3. The ZBA notes that the evidence it considered included opposition expressed by six named individuals who stated that they were concerned that the “additional traffic” and “glare from parking lot lights and the noise from the vehicles” generated by the proposed gas station would be a nuisance to their abutting subdivision. Also, they expressed the concern that the proposed gas station would exacerbate “traffic congestion on Highland street” which already was a serious problem. Exhibit 3 at 2.
In rejecting the request for a special permit, the ZBA identified two shortcomings with BJ’s application. First, the board concluded that the proposed gas station will “cause undue traffic congestion and impair pedestrian safety” at three specific locations identified on a plan marked exhibit 1 and attached to the ZBA decision. In reaching this conclusion, the Board reasoned that the traffic study prepared by Vanasse and Associates dated October 21, 1999 indicated that the proposed gas station would generate an additional 6% increase in traffic volume into BJ’s parking lot consisting of persons who were not BJ’s Club members, but were nonetheless coming to buy gasoline. “The Board found that this increase in traffic associated with the gasoline station would exacerbate current traffic problems, further impede traffic flow, impair pedestrian safety and render a bad situation worse.” Exhibit 3 at 3. The ZBA also discounted the value of comparative data from only one other BJ’s store (in Maine) with a gasoline filling station on the premises. The Board also relied on what it characterized as the “open/exposed layout of the gasoline station” as not conducive to safe traffic flow and a detriment to public safety because “motorists would be able to access any of the twelve (12) fuel dispensers unsystematically from any point in the parking lot.” Exhibit 3 at 3.
The second shortcoming identified by the board was that the proposed gas station “will have a severe undesirable effect on the neighborhood and public.” Exhibit 3 at 3. The board reasoned that the neighbors already had to deal with what they regarded as unreasonable levels of traffic, glare from parking lot lights, and noise from vehicles, and that “the magnitude of the proposed gasoline station would only serve to contribute to, and escalate, these nuisances.” Exhibit 3 at 3.
3. Standard of judicial review. When a request for a special permit pursuant to G.L.c. 40A, § 9 and provisions of a local zoning law is denied, an aggrieved party may seek judicial review. G.L.c. 40A, § 17. In such a case, “the court shall hear all evidence pertinent to the authority of the board or permit granting authority and determine the facts, and upon the facts as so determined, annul such decision if found to exceed the authority of the board or such permit granting authority or make such other decree as justice and equity may require.” G.L.c. 40A, § 17. This statute has been considered by our appellate courts on numerous occasions, and guidelines have been established for the exercise of the power of judicial review.
“On appeal to the Superior Court or Land Court, a judge determines the legal validity of a zoning board decision on the facts found by him; he gives no evidentiary weight to the board’s findings. Judicial review is nevertheless circumscribed: the decision of the board `cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.'”
Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 485-86
(1999) (citations and quotations omitted). The hearing before the court is de novo, and the court is not restricted to evidence that was presented to the board. Bicknell Realty Company v. Board of Appeal of Boston, 330 Mass. 676, 679 (1953).
Over the years, appellate court decisions have supplied further insights into what is meant by § 17’s framework of limited judicial review. A trial judge acting under G.L.c. 40A, § 17 does not possess the same measure of discretionary authority as the board enjoys when it considers the application for a special permit under G.L.c. 40A, § 9
and its local zoning law. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277 (1969). Thus, there will be circumstances when a zoning board of appeals may deny an application for a special permit on the basis of evidence that also would allow the board to grant the special permit. Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 484 (1970). In such cases, the decision by the board must be respected, and it will be upheld by the courts in a proceeding under § 17. See Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 120 (1955) (court may not substitute its judgment for that of the board). See also Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 161-62 (1962) (“Rarely can the court order the granting of a variance when the board has denied the petition. . . .[but] [c]onceivably a decision of a board might be held to be arbitrary when . . .the board failed to make any findings to support its exercise of discretion in denying the variance”).
However, the discretion enjoyed by a board acting under G.L.c. 40A, § 9 is not unlimited. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638 (1970). Discretion, in this context, does not mean that the court should simply defer to the determination made by the board without an independent determination of the facts. Devine v. Zoning Board of Appeals of Lynn, 332 Mass. 319, 322 (1955) (court cannot simply adopt the findings of the board under G.L.c. 40A, § 17). Discretion, in this context, means that there was sufficient evidence before the board to authorize it to grant or to deny a special permit, and that the board’s decision was within the range of permissible choices. A broader understanding of administrative discretion than this would be tantamount to declaring that the board could act arbitrarily. See Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972).[5]
The teaching of the many appellate court decisions noted above regarding the role of the trial court in a proceeding under G.L.c. 40A, § 17 in which a person is challenging the action of a zoning board of appeals in denying an application for a special permit on grounds that the board’s decision lacks a sufficient evidentiary foundation is that the court must assess, after an independent determination of the facts, whether the board’s reasons have a substantial basis in fact, or are merely a pretext for arbitrary action or a cover for reasons that are not related to the purposes of the zoning law. See Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308, 312 (1973).
An examination of the two grounds relied on by the ZBA in this case, in the light of the findings of fact made by the court, compel the conclusion that the ZBA acted arbitrarily and that its decision must be annulled. With regard to the first reason given by the board for its decision-undue traffic congestion and impairment of pedestrian safety-the board took evidence that operation of the proposed gasoline station would result in a 6% increase in traffic into the BJ’s parking lot, and assumed that this traffic might arrive all at once and at any hour during a weekday or weekend when the gas station was operating. According to the Board, “this datum [is interpreted] as an indicator of a six (6%) percent increase in overall traffic volume generated by non-club clientele.” Exhibit 3 at 3. The Board reasoned that “this increase in traffic associated with the gasoline station would exacerbate current traffic problems, further impede traffic flow, impair pedestrian safety and render a bad situation worse.” Exhibit 3 at 3. However, the data in question cannot properly be understood without considering the evidence that traffic moves in and out of the area in accordance with regular patterns that were monitored and analyzed by the traffic consultant. Based on the traffic analysis, which the court found to be credible, the so-called traffic increase to the site as a result of the gas station amounts to no more than 27 additional vehicles on an average day, up to seven or nine extra vehicles during periods of peak traffic on weekday evenings and Saturday midday, or one extra vehicle entering or exiting the site every six or seven minutes during the peak one hour of the day. Exhibit 5 at 3 (note to Table 2). When viewed in light of the fact that between 401-480 empty parking spaces are available in the BJ’s parking lot at all times (even during periods of peak traffic flow), exhibit 5 at 3-4, (Tables 3-4) and the evidence that the anticipated increases in traffic flow will not produce any additional backing up or queuing of vehicles as they enter or exit the BJ’s parking lot due to the modifications to the site plan, exhibit 5 at 4-6, there is no substantial basis in fact for the “undue traffic congestion” reason advanced by the ZBA in denying the special permit.
Likewise, in terms of the impact on pedestrian safety, there is no evidence in the record and no basis whatsoever for the ZBA finding that the operation of the proposed gas station would impair pedestrian safety. Finally, insofar as the board expressed concerns about public safety issues that could result from open access to the gas station area from within the BJ’s parking lot, it appears that the board overlooked or disregarded the modifications to the site plan calling for the elevation and landscaping of the gas station island and the additional signage to be installed. With regard to the second reason advanced by the ZBA for denying the special permit-that the operation of a gas station would have a severe, undesirable effect on the neighborhood and public-the record does not permit the court to conclude that there is a substantial basis in fact for this reason. In light of the evidence regarding the engineering features of the site plan with regard to traffic flow and circulation, the nature and impact of the operational and security lights associated with the gas station, and the results of the traffic study in terms of the impact of increased traffic flow, there is no basis for a finding that the abutters will experience any measurable impact from the operation of a gas station in terms of light pollution, or noise. To the extent that abutters are concerned about the general problems of heavy traffic on Highland Avenue, neither the evidence that was before the ZBA nor that which was presented to the court permits a finding that operation of the proposed gas station will have any impact on that situation.
This is not a case in which the court’s decision rests on the view that the findings made by the ZBA are inadequate. A zoning board is not required to make detailed findings. Rather, this is a case in which the board’s decision lacks a substantial basis in the evidence, and, instead, is based on speculation about increased traffic flow and attendant problems. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598, 601 (1962) (“there is no substantial evidence that increased traffic resulting from business derived from the new greenhouse would be consequential”). See also Cohen v. Zoning Board of Appeals of Plymouth, 35 Mass. App. Ct. 619, 623 (1993) (in the context of an inquiry into standing, court notes that the concerns of neighbors expressed in affidavits that a proposed use will lead to a substantial increase in traffic and in increased delays in traffic flow is not a substitute for a traffic analysis). Contrast, ACW Realty Management, Inc. v. Planning Board of Westfield, 40 Mass. App. Ct. 242 (1996) (reversing trial court which had annulled board decision refusing to grant a special permit for a gas service station and convenience store).
ORDER
For the reasons stated above, the decision of the defendant Zoning Board of Appeals of Attleboro is hereby ANNULLED. The plaintiff urges that this court further order that the special permit be granted. The decision rendered by the ZBA makes it clear that with the exception of the two reasons it cited for denying the special permit (which this court finds are insufficient to withstand scrutiny based on the findings made by the court under G.L.c. 40, § 17), the plaintiff’s application otherwise meets the requirements of Section 17-9.4(A) of the Zoning Ordinances of the City of Attleboro. However, the ZBA also is empowered to impose additional conditions on a special permit that serve the purposes of its zoning ordinance. See Section 17-9.4(B) of the Zoning Ordinances of the City of Attleboro including, but not limited to, method and time of operation and time duration of the permit. See also G.L.c. 40A, § 9. It is not clear from the record before the court whether such additional conditions were ever proposed or considered by the ZBA. Accordingly, this case is remanded to the ZBA for further proceedings not inconsistent with this order to permit the ZBA to consider whether to impose additional, reasonable conditions on the issuance of a special permit under Section 17-9.4(B) of the Zoning Ordinances of the City of Attleboro.
______________________________ Peter W. Agnes, Jr. Justice of the Superior Court
8 Mass. App. Ct. . 483 (1979), quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).