GORDON L. HOWLAND & another [Note 1] vs. BOARD OF APPEALS OF PLYMOUTH & another. [Note 2]

SMITH, J. Douglas Torrance is the owner and operator of Wood's, a seafood restaurant and market located on a parcel of land on the town wharf in Plymouth. He sought from the board of appeals a special permit to add a second story and deck to the restaurant. He also requested: (1) a variance from the pertinent Plymouth by-law provisions

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relating to off-street parking, and (2) a variance for the expansion of a nonconforming structure. The board granted the special permit but refused the variance as to off-street parking, stating that Lot 78 (the town wharf) has "adequate parking for the uses located on it, and no [v]ariance under [s]ections 305.01 through 306.05 of the Zoning By-law is required." [Note 3] The plaintiff Howland and Mayflower Seafoods Company, Inc., a lessee of Howland, sought review of the decision in the Superior Court. After a hearing, a judge of that court entered a judgment stating that the decision of the board granting the special permit was within its authority. The plaintiffs filed a joint appeal, claiming error in that the findings of the board and the judge failed to demonstrate that the statutory and by-law conditions in regard to off-street parking requirements and off-street loading requirements had been satisfied. See Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308, 311 (1973), where the court stated that the board must make an "affirmative finding as to the existence of each condition of the statute or by-law" required for the granting of the special permit and "the judge . . . must find independently that each of these conditions is met."

Because the restaurant is located in a waterfront district, it is a special permit use subject to by-laws involving environmental design conditions which include not only the general standards but also certain parking requirements. The relevant zoning by-law, set out in the margin, [Note 4] states

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that "[r]equired parking spaces shall be on the same lot as the principal use served, or if not reasonably possible, on other property in the same district within 400 feet of the principal building." In addition, Section 305.11 of the zoning by-law establishes the ratio of required parking spaces that is necessary with respect to the building to be not less than "[o]ne space for each three (3) seats or one space for each 50 square feet of gross floor area, whichever is greater." The judge ruled that under the definition of "lot" contained in the zoning by-law, [Note 5] the area upon which Wood's is located is not a lot but is a "parcel" of Lot 78 which, in turn, is owned by the town of Plymouth. Based upon that finding, the judge concluded that "ample parking exists, owned by the owner of Lot 78 (The Town of Plymouth), within the confines of Lot 78 and within 400 feet of Wood's," and therefore, that the required standards for parking set out in the zoning by-law had been met. We disagree.

The uncontradicted evidence was that Torrance leased land with definite boundaries from the town of Plymouth. There was no evidence that Torrance had any leasehold or other legal interest in that part of Lot 78 not occupied by the restaurant and market. By the use of language that required parking to be located "on the same lot as the principal use served," it was the intent of the zoning by-law to

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have parking located on the premises where the use was located, if possible. The language in the by-law shows that it is the person who possesses the special use who must have the required number of public parking spaces (see note 4, second par., supra), not the owner of the "lot" or "parcel" on which the use [Note 6] will be located. The uncontradicted evidence was there was not enough room on the leased land for parking, with the result that Torrance was required by the by-law to make other arrangements on land located within 400 feet of the principal building. The zoning by-law specifically states that "[s]uch off-premises parking shall be in possession, by deed or lease, of the owner of the use served." There was no evidence that Torrance had leased from the town the required parking spaces on Lot 78. [Note 7] In addition, the by-law required the specific application of a mathematical formula and the judge's finding of "ample parking" did not comply with the formula. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 299 (1972).

Because of our decision, it is not necessary to discuss the off-street loading requirement issue.

Paragraph no. 2 of the judgment is reversed, and a new judgment is to be entered annulling the decisions of the board of appeals as in excess of its authority.

So ordered.