JAMES M. SALAH vs. BOARD OF APPEALS OF CANTON.

GOODMAN, J. The board of appeals of the town of Canton (board) appeals from a final decree of the Superior Court annulling the decision of the board which had concluded that a use proposed by the plaintiff was not within the permissible uses listed in the town's zoning by-law and had refused to approve a site plan submitted by the plaintiff pursuant to the by-law. See Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25, 26-28, 31 (1970), describing and upholding the validity of the provisions for "site plan approval." See also 1970 Ann. Surv. of Mass. Law, Section 17.1, p. 454. The decree also ordered the board to approve the plaintiff's site plan and to direct the building inspector "to issue all necessary building permits"; costs were awarded to the plaintiff. The decree is based on a master's report, which we summarize.

The plaintiff submitted to the board an application for approval of a site plan for the development of a parcel of 5.89 acres owned by the plaintiff and to be leased to an "intrastate common carrier by motor vehicle" (the lessee). Most of the area would be surfaced and fenced and would include two buildings -- one of 47,880 square feet, and the smaller one to be used as a garage. [Note 1] "Part of the principal building was to be used for warehousing, part for office space and part as a receiving and delivery

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terminal with extended loading dock facilities. . . . The Parcel would have a rail siding to or into the principal building, and freight car traffic would be one car or series of cars per week." There would be approximately thirty truck movements out of the site in the morning of each business day (Monday through Friday), approximately ten movements during the business day, and approximately thirty movements at the end of the business day. The area contains a number of similar sites, and the added traffic would not be appreciable. Normal operations would not include night traffic. "As accessory uses certain of the lessee's vehicles would be stored on the Parcel from time to time when not in use and the proposed garage would be used for servicing and preventive maintenance of the lessee's vehicles." There would be 194 "[t]otal `active' and `inactive' parking spaces."

The master found that the lessee "would be distributing . . . from the manufacture to retailers such as discount department stores," and that the "uses proposed for the Parcel . . . would be those comprising the business of any intrastate common carrier by motor vehicle engaged in the storage and distribution of articles which may be produced in a limited industrial zone pursuant to clauses 1(a) through 1(g) of section III-E of the Canton Zoning By-Law and articles described in clause 1(h) of said section III-E." The zoning by-law of Canton referred to by the master [Note 2] divided the town into classes of districts

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including (besides residential districts and business districts) limited industrial districts and industrial districts. The uses listed "as of right" for limited industrial districts include among others [Note 3] (Section III-E 1[h]) "[w]arehouse or distribution plant for [certain enumerated products] or any products of manufacturing activities permitted by this paragraph [Section III-E 1] (whether or not produced on the premises)." [Note 4]

The contentions of both parties are focused on the issue whether the operation proposed is a "warehouse or distribution plant." Both parties have in varying degree analyzed the phrase into its components "warehouse" and "distribution plant," but neither the master's report nor the trial judge makes this distinction. [Note 5] The master's report appears to view the facility as an entity to be used in the storage and movement of goods from manufacturer to retailer without reference to the relative importance of the storage function. The real question, we believe, is whether this complex is a "distribution plant" containing, as it ordinarily does, a storage component. Kreger v. Public Bldgs. Commr. of Newton, 353 Mass. 622, 623, 626 (1968), characterizing as "a distribution plant" a facility described as "tanks to hold oil, with necessary

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valves and vents, pumping machines, meters, and loading and unloading bays for the oil trucks." See Cochran v. Roemer, 287 Mass. 500, 504 (1934), in which the court described a "coal elevator" from which coke was sold at retail to dealers and to industrial users as a "plant . . . for . . . storage of coke and . . . for distribution." Contrast Pittsburgh & Lake Erie R.R. v. Allegheny County, 283 Pa. 220 (1925), in which a warehouse at a freight terminal was run as a distinct business with storage charges and warehouse receipts.

We therefore examine the phrase "distribution plant" to determine its meaning, as a question of law for this court, from its "common and approved usage" (Needham v. Winslow Nurseries, Inc. 330 Mass. 95, 99 [1953]) and its context in the by-law. See Jackson v. Building Inspector of Brockton, 351 Mass. 472, 475 (1966); Carpenter v. Zoning Bd. of Appeals of Framingham, 352 Mass. 54, 58-61 (1967); Kreger v. Public Bldgs. Commr. of Newton, 353 Mass. 622, 624-626 (1968). The board argues that the proposed facility is a trucking terminal operated by a common carrier and that the phrase "distribution plant" excludes such an operation. It points to the dictionary definition of "distributor" as "one that markets a commodity; esp.: wholesaler." Webster's Third New Intl. Dictionary, p. 660.

Though we agree that a trucking terminal is not in common usage a "distribution plant," we believe that the board gives the phrase, "distribution plant," too restrictive a meaning. In the Kreger case, supra, the owner of the "distribution plant" was not the owner of the bulk of the oil distributed through the facility. In Westborough v. Department of Pub. Util. 358 Mass. 716, 717 (1971), a proposed facility was described as "a freight yard, unloading facility, and distribution center for automobiles" (emphasis supplied) and (as appears from the original papers) was to be used by a railroad in connection with its contract with an automobile manufacturer. The words "distribution" and "distribution

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plant" as used in these cases fit the proposed use described by the master. They connote the function of and facility for receiving and storing merchandise and shipping it in smaller quantities to retail outlets. As the Kreger case indicates, the facility is no less a "distribution plant" because the function is not performed by the owner of the goods and, as the Westborough case indicates, it may be done by a common carrier. Nor is there anything in the record to indicate that the lessee, though a common carrier, cannot also function as a contract carrier and operator of a distribution plant restricted to specified commodities. Mt. Tom Motor Line, Inc. v. McKesson & Robbins, Inc. 325 Mass. 45, 48 (1949). Superline Transp. Co. Inc. v. My Bread Baking Co. 350 Mass. 364, 368 (1966).

Accordingly, the board's decision as explained in its brief [Note 6] is wrong as a matter of law, for it is based on the premise that a distribution plant cannot be operated by one who also happens to be a common carrier and that operation by a common carrier makes the facility, no matter how limited, a trucking terminal, something other than a "distribution plant." We agree with the plaintiff that there appears to be no reason why "[t]he character of the activity in the proposed building is . . . [any] different because . . . an intra-state carrier, is performing this function by contract for a few retail stores instead of the stores doing it themselves," and that the accumulation and storage of goods shipped in from manufacturers by rail or truck to a center from which to distribute these

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goods among numerous retail stores is within the common and approved usage of the phrase "distribution plant" and permitted by the by-law, if confined to the goods there specified.

Though the decree correctly annulled the decision of the board, it does not follow that it was proper for the court to order approval of the site plan or the issuance of building permits. It is true, as the plaintiff argues, that a "use" within Section III-E 1(h) of the by-law is "permitted as of right" (Section III-E 1), but the "commercial building" proposed is nonetheless subject to the determination "that the further standards contained in Section IV D 4 have also been met in the particular case." [Note 7] Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25, 30 (1970). Neither the board's decision nor the master's report contains sufficient findings as to the satisfaction of each of the standards in that section. The board did not deal with the matter except in the most cursory fashion, [Note 8] indicating nothing more than a vague scepticism. The

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by-law, however, "implies regulation of a use rather than its prohibition" and the imposition of "reasonable terms and conditions" (Y. D. Dugout case, supra, at 31) which, as the by-law provides, are "[c]onsistent with a reasonable use of the site for the purposes permitted." [Note 9]

The master's report also contains no specific findings addressed to each of the standards of Section IV-D 4. It states that the planning board voted to recommend "site plan approval subject only to certain conditions relating to parking facilities and drainage and subject to review by the Board of Health with respect to the proposal of sewage disposal . . .." However, there is no indication just what happened to these recommendations. There is therefore no basis in the master's report for the order in the decree requiring that building permits be issued and that, in effect, the site plan be approved; [Note 10] and the case must be remanded to the board. Y. D. Dugout, supra, at 32. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 300 (1972). See Tambone v. Board of

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Appeal of Stoneham, 348 Mass. 359, 365 (1965); Slater v. Board of Appeals of Brookline, 350 Mass. 70, 74 (1966).

The board, on remand, may also have to consider the question whether and to what extent the garage, proposed to be used for servicing and preventive maintenance, and the storing of the lessee's vehicles are accessory uses within the by-law. [Note 11] We agree with the board that this in general is a question of fact (Harvard v. Maxant, 360 Mass. 432, 437-439 [1971]) which the board must determine initially. Because the question has been argued and may arise again, we think it advisable to state that we do not agree with the board that, as a matter of law, the garage and storage of vehicles are not permitted as accessory uses. The failure to mention garages in Section III-E 1(n), on which the board relies, seems to us to be immaterial in the context of this by-law. The four uses listed obviously could not have been intended to exhaust the multifarious possibilities inherent in the broad definition of "accessory use" in Section 1-B 1. Cf. Hume v. Building Inspector of Westford, 355 Mass. 179, 180, fn. 1, 181-182 (1969). "The word `including' does not lend itself to such destructive significance." Phelps Dodge Corp. v. National Labor Relations Bd. 313 U.S. 177, 189 (1941). Uses such as those proposed by the plaintiff have, without detailed analysis of the facts, been held to be accessory. Needham v. Winslow Nurseries,

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Inc. 330 Mass. 95, 102 (1953) (maintenance on the premises of trucks used in a permissible landscape contracting business). Bridgewater v. Chuckran, 351 Mass. 20, 21, 24 (1966) (storage of trucks used in permissible contracting business). See Superintendent & Inspector of Bldgs. of Cambridge v. Villari, 350 Mass. 176, 177-178 (1966).

Finally, we hold that there is no basis for the assessment of costs against the board. They can be assessed only if the board "acted with gross negligence, in bad faith or with malice." G. L. c. 40A, Section 21. The master's report does not permit such a conclusion. The general finding that site plan approval was denied "arbitrarily and capriciously" is not borne out by the record or supported by any subsidiary findings. [Note 12]

The final decree is reversed, and a new final decree is to be entered annulling the board's decision and remanding the case to the board for reconsideration in the light of this opinion. Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25, 32 (1970). [Note 13]

So ordered.