ROBERT CONLON, JUDITH CONLON, JOHN GOLDEN, ROBERTA CONLON, WAYNE MEDEIROS, SANDRA MEDEIROS, MICHAEL MELLO, MARIAH FITZSIMMONS-MELLO and ROBERT WILLIAMSON v. JOHN ROSA, ARTHUR GAGNON, JAMES O’ROURKE, ELIZABETH CHODKOWSKI, and WILLIAM BAPTISTA as members or alternate members of the SOMERSET ZONING BOARD OF APPEALS, THE TOWN OF SOMERSET, RICHMOND SOMERSET LLC, and THE RICHMOND COMPANY, INC.

Introduction

These three actions, consolidated by order dated February 14, 2005, arise from the Richmond Company’s (“Richmond”) proposal to develop a Walgreens drugstore on the properties located at 296 and 346 Buffinton Street in Somerset. [Note 1] By unanimous decision dated December 31, 2003, the Somerset Zoning Board of Appeals (the “board”) granted Richmond a planned development approval, a variance, and a sign permit in connection with the project. [Note 2] The decision presumed that both parcels were zoned “business.” 346 Buffinton had been rezoned from “residential” to “business” by unanimous town meeting vote in 1999 and the most recently published zoning map indicated that 296 Buffinton was entirely in a “business” zone.

Miscellaneous Case No. 295907, brought by a group of neighboring residential property owners, [Note 3] seeks a declaration pursuant to G.L. c. 240, § 14A (Count I) and G.L. c. 231A, § 1 (Count II) that the town’s 1999 rezoning of 346 Buffinton from “residential” to “business” is null and void and appeals the board’s December 31, 2003 decision pursuant to G.L. c. 40A, § 17 (Count III). Miscellaneous Case No. 295932, brought by the owner of a neighboring commercial property leased to a Walgreens’ competitor, [Note 4] makes identical claims and seeks identical relief.

Although not initially plead, one of the issues the plaintiffs subsequently sought to raise in Miscellaneous Case Numbers 295907 and 295932 concerned the zoning status of 296 Buffinton Street. Richmond’s opponents contend that 296 is a “split” lot, with part of the lot zoned business and part zoned residential. Richmond claims that 296 is located entirely within the business zone district. Section 3.2.1 of the Somerset Zoning Bylaw (the “Bylaw”) provides that the boundaries of Somerset’s zoning districts are established “as shown on the map entitled Official Zoning Map, Town of Somerset, which together with all boundaries, notations and other data shown thereon, is hereby made a part of [the] bylaw.” Various rules of interpretation are given in Bylaw § 3.2.[5] a-d and § 3.2[5]e provides that “questions concerning the exact location of a district boundary shall be decided by the Board of Appeals.” I thus declined to address the “boundary line” issue until after the board had an opportunity to address it. The parties then petitioned the board for such a determination and, by a 2-1 decision dated November 3, 2004, the board ruled that 296 Buffinton was partially in a business zone and partially residential. Miscellaneous Case No. 303905 is Richmond’s G.L. c. 40A, § 17 appeal of that decision (Count I). Richmond’s complaint also seeks a declaration pursuant to G.L. c. 231A, § 1 that the Bylaw and Zoning Map, as construed by the board in the November 2004 decision, is arbitrary, unreasonable and unconstitutional as applied to the property (Count III). [Note 5] The residents were permitted to intervene to assert the contrary.

By order dated February 14, 2005, the three cases were consolidated and, by subsequent order, the issues they presented were bifurcated into two phases. Counts I and II of the neighboring property owners’ complaints and all of Richmond’s claims (i.e., all claims regarding the zoning status of the two lots) were grouped for trial as Phase I. The neighboring property owners’ G.L. c.40A, § 17 appeals from the board’s December 31, 2003 decision (their challenge to Richmond’s planned development approval, variance, and sign permit set forth in Count III of their complaints) were reserved for trial at a later time, if necessary (Phase II).

The Phase I issues were tried before me, jury-waived. I also took a view of the property and its surroundings. Based on the facts stipulated by the parties, my observations at the view, the testimony and exhibits admitted into evidence in connection with the trial, matters of public record of which I may take judicial notice, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I found and ruled that the board did not apply proper standards and criteria and it acted arbitrarily and capriciously in determining that a portion of 296 Buffinton was zoned residential. That decision was therefore annulled. Decision on “Phase I” Issues (March 23, 2007). As explained in my Phase I decision, all of 296 Buffinton is located within the business zone district. I further found that the town’s 1999 rezoning of 346 Buffinton from residential to business was a valid and proper exercise of its municipal powers, rationally related to the town’s general welfare, neither arbitrary nor unreasonable, and neither “spot zoning” nor against the intent of the town meeting. The neighboring property owners’ claims to the contrary (Counts I and II of their complaints) were therefore dismissed, with prejudice. Id.

On June 12, 2007, over three years after the case was commenced, nearly three months after the Phase I decision was entered, long after discovery had concluded, only seventeen days before the joint pre-trial memorandum for the Phase II trial was due to be filed, and only twenty-seven days before the Phase II trial was scheduled to begin, the plaintiffs filed a motion to amend their complaints seeking to assert three entirely new claims: (1) that plaintiff Medeiros owned a portion of the Richmond property by adverse possession; (2) that the boundary line between the Medeiros and Richmond properties was inaccurate; and (3) as a consequence, Richmond’s plans did not comply with the Bylaw requirement that parking spaces be no less than five feet from property boundaries. For these and other reasons (including the obvious prejudice to the defendants from these new “eve of trial” assertions and the plaintiffs’ failure to show why they could not have been asserted earlier), the motion to amend was denied on July 2, 2007. Mathis v. Mass. Elec. Co., 409 Mass. 256 , 264 (1991) (motion to amend may be denied for “undue delay, bad faith” or “prejudice to the opposing party by virtue of allowance of the amendment”); Goulet v. Whitin Machine Works, Inc., 399 Mass. 547 , 552 (1987) (attempt to assert new theories when trial is imminent justifies denial of motion to amend); Asian American Civic Ass’n v. Chinese Consolidated Benevolent Ass’n of New England, Inc., 43 Mass. App. Ct. 145 , 152-153 (1997) (motion to amend, two years after complaint had been filed and a week before trial was to begin, was properly denied due to prejudicial lateness); Srebnick v. Lo-Law Transit Mgmt, Inc., 29 Mass. App. Ct. 45 , 50 (1990) (motion to amend may be denied “based upon considerations of unjustified delay, bad faith, or undue prejudice”).

The allegations and claims in Count III of the plaintiffs’ complaints (their G.L. c. 40A, § 17 appeal of the board’s December 31, 2003 decision remained for trial and were tried before me, jury-waived. Based on the facts stipulated by the parties, my observations at the view, the testimony and exhibits admitted into evidence in connection with the trial, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that, with one exception, the board’s decision was not “based on a legally untenable ground, [nor was it] unreasonable, whimsical, capricious or arbitrary.” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). Accordingly, it “cannot be disturbed.” Id. I thus affirm the board’s decision and DISMISS Count III (all of the plaintiffs’ remaining claims), with that one exception. That exception is the board’s ruling (based upon what the board reasonably believed were the affected abutters’ wishes, but contrary to the explicit requirements of the Bylaw), directing Richmond to put a slatted chain link fence on top of the wall it will construct between its property and the Medeiros property rather than a “continuous wall of solid appearance or tight evergreen hedge six feet high along or parallel to said lot line.” Bylaw § 6.10.2(a). Accordingly, I affirm the board’s decision contingent upon Richmond placing such a wall or hedge (Richmond may choose to do either) along the Richmond/Medeiros property line in accordance with the Bylaw’s requirements. [Note 6]

The Standard for a G.L. c. 40A, § 17 Appeal

In a G. L. c. 40A, § 17 appeal, the court is required to hear the case de novo, make factual findings, and determine the legal validity of the board’s decision based upon those findings. Roberts, 429 Mass. at 486 (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). The court “gives no evidentiary weight to the board’s findings.” Id. (citing Josephs, 362 Mass. at 295). The court’s “function on appeal,” based on the facts it has found de novo, is “to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). “The board must [have] act[ed] fairly and reasonably on the evidence presented to it and must set forth clearly the reason or reasons for its decisions” in order to be upheld. Id. (internal citations and quotations omitted).

Even though the case is heard de novo, such “[j]udicial 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, 429 Mass. at 486 (citations and quotations omitted). In determining whether the decision was “based on a legally untenable ground,” the courts must determine whether it was decided

on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference’ to the local board’s interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.

Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted). In determining whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board could” come to the same conclusion. Id. at 74. This step is “highly deferential.” Id. While “it is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling,” Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005) (internal quotations and citations omitted), and “a highly deferential bow [is given] to local control over community planning,” Britton, 59 Mass. App. Ct. at 73, deference is not abdication. The board’s judgment must have a sound factual basis. Id. at 74-75 (to be upheld, the board’s decision must be supported by a “rational view of the facts”). If the board’s decision is found to be arbitrary and capricious, the court should annul the decision. See, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). If the decision is not arbitrary and capricious (i.e., if a rational board could come to the same conclusion) and if it is based on a legally tenable ground, it must be upheld. Roberts, 429 Mass. at 486.

Facts

Richmond, a commercial property developer, proposes to develop a 13,650-square-foot Walgreens drugstore with ninety-one parking spaces at 296 and 346 Buffinton Street in Somerset, near the corner of County Street and Buffinton (the “Richmond site”). [Note 7] County Street (State Highway Route 138) is one of the town’s main thoroughfares and Buffinton Street is a major cross-street into Swansea. The area is part of Somerset’s town center. There is a shopping center immediately to the north of the site and a Brooks Pharmacy immediately to its south, with other nearby retail businesses located up and down County Street. See Exhibits 1 and 2.

296 Buffinton Street, a 43,820-square-foot lot, has been used for commercial purposes for more than fifty years and its original building has been expanded by four additions over that timeframe. The Somerset Playhouse operated at 296 from approximately 1951 to 1956. The rear and side (west and south) of the Playhouse was used as a parking lot. A movie theater operated for a few years after the Playhouse went out of business. A furniture showroom (Furniture Village) occupied the property after the movie theater closed. That showroom closed in the 1990s and the property was vacant when it was purchased by Nicola Realty, LLC in 1999. Nicola Realty developed and used it as the Ferrara Business Center.

346 Buffinton Street, a 24,274-square-foot lot, is contiguous to 296. Nicola Realty’s principal, Nicola Ferrara, purchased this lot on September 15, 2000. It is currently occupied by a single-family residence and was rezoned from residential to business by unanimous vote at a special town meeting on December 6, 1999.

On January 23, 2003, Richmond entered into a purchase option agreement with Nicola Realty and Mr. Ferrara to acquire the 296 and 346 Buffinton properties. Richmond has since exercised that option and now, through Richmond Somerset Development, LLC, owns the properties outright. Richmond’s motion to substitute Richmond Somerset Development, LLC for defendants Nicola Realty, LLC and Nicola Ferrara in Miscellaneous Case Numbers 295907 and 295932 was thus allowed. Order (Oct. 9, 2008).

The following parties are the neighboring property owners that challenge the Richmond proposal. Robert and Judith Conlon reside at 39 Cedar Street. They purchased their property on July 31, 2002 as tenants by the entirety. It is uphill, across the street, and a block away from the Richmond site.

Robert Williamson resides at 185 Pratt Avenue. He and his sister, Jane Bergeron, jointly own the remainder interest in the property at 327 Buffinton Street by a September 17, 1999 deed from their mother, Ann Williamson. Ms. Williamson retained a life estate and still lives in the house. She is not a party to this action. The house is across the street and uphill from the Richmond site.

Sandra and Wayne Medeiros reside at 360 Buffinton Street. Ms. Medeiros purchased the property on June 27, 1966 and conveyed it to herself and Mr. Medeiros as tenants by the entirety by deed dated December 21, 2001. Mr. Medeiros had no ownership interest in the property prior to that deed. Their house directly abuts, and is uphill from, the Richmond site. The difference in level between the two properties will be even greater after final grading of the Richmond site is complete.

Michael Mello and Mariah Fitzsimmons-Melo purchased the property at 29 Cedar Street as joint tenants on May 25, 1984 and currently reside there. Their house is across the street, uphill, and a block away from the Richmond site.

John and Roberta Golden purchased 393 Buffinton Street as tenants by the entirety on August 2, 1983 and currently reside there. Their house also is across the street, uphill, and a block away from the Richmond site.

Gloria Sroczynski resides at 74 Hawthorne Street. She owns the commercial property at 985 County Street, which she currently leases to Maxi Drug, d/b/a Brooks Pharmacy. It is directly across the street from the Richmond site. Brooks Pharmacy directly competes with Walgreens.

The proposed Walgreens is a commercial use on a lot of more than one acre. It thus requires planned development approval from the board. Bylaw § 6.10.1(a). To obtain such approval, site plan documents that meet the Bylaw’s criteria must be submitted, reviewed and approved. Specific requirements include (1) “a continuous wall of solid appearance or tight evergreen hedge six feet high along or parallel to [the] lot line” between the development and any abutting dwellings, [Note 8] Bylaw § 6.10.2(a); (2) the planting of “one shade tree for every thirty feet of side frontage” along the development’s street frontage, “except that the Board of Appeals may allow the substitution of other landscaping of a suitable nature,” Bylaw § 6.10.2(b); and (3) no more than one ingress and one egress for each street to which the development has access, each with a maximum width of thirty-five feet, Bylaw § 6.10.2(c). Generally speaking, if the proposed use represents a change from the immediately prior use, [Note 9] the general special permit criteria of Bylaw § 7.5 also come into play. [Note 10] Under § 7.5, the board is entitled to impose conditions on the proposed new use. [Note 11] Taking into consideration those conditions, the board must find that (1) “the use is not noxious, harmful or hazardous, is socially or economically desirable and will meet an existing or potential need”; (2) “the advantages of the proposed use outweigh any detrimental effects, and such detrimental effects on the neighborhood and the environment will not be significantly greater that could be expected from the development which could occur if the special permit were denied”; and (3) “the applicant has no reasonable alternative to accomplish this purpose in a manner more compatible with the character of the immediate neighborhood.” Bylaw § 7.5.1. In this case, the board deemed the proposed Walgreens to be “a substantial change from the immediately prior use” and evaluated it in that light. Decision of the Zoning Board of Appeals in the Granting of Planned Development Approval, Variance and Sign Permit for the Richmond Company, Inc. at 5 (Dec. 31, 2003) (hereinafter, the “Decision).

In the Decision, the board imposed the following conditions to the permit.

• Construction and operations on the premises were ordered to conform with “all applicable laws, codes, rules and regulations, including but not limited to the State Building Code and the provisions of the Somerset Zoning By-law except those affected [by the Decision].” Id. at 10.
• The property was ordered to be used “in strict conformance with the revised plans submitted and the representations made by [Richmond] to the board, including but not limited to those specifically noted above.” [Note 12] Id.
• Use under the special sign permit was ordered to “conform to any subsequent amendment to the zoning bylaw, unless said use ha[d] commenced within six months after the date the permit [was] issued. Id.
• Richmond was required to provide a total of ninety-one parking spaces, “each meeting the By-law dimensional requirements and including four handicapped spaces meeting By-law and ADA [Americans With Disabilities Act] requirements, to be marked as shown on the plan submitted.” Id.
• Parking spaces, ingress-egress points, and directional lines were ordered to be “clearly marked and maintained legibly on the pavement at all times.” Id.
• Additional traffic signs were ordered to be “erected as directed by the Somerset Police Department, including but not limited to ‘One-Way’ and ‘No Left Turn’ signs to be erected on the island east of West County Street and two ‘Do Not Block Intersection’ signs, one at the terminus of West County Street and one across Buffinton Street from that location and facing West County Street.” Id. at 11. In addition, cross-hatched markings were ordered to be placed “on the pavement at the back of the building opposite the Buffinton Street entrance, indicating ‘Do Not Enter.’” Id.
• Walgreens could employ “no more that twelve to fourteen individuals at any one time, and [could] be open only from 7:00 a.m. to 11:00 p.m. seven days a week.” Id.
• Lighting was required to be installed “in accordance with the plans submitted, and illumination levels on site [were required to] be maintained in accordance with the photometric lighting plan submitted to the board.” Id. “All lights for the premises, including those for the parking areas and the signage, [were required to] be directed away from neighboring residential areas so they [would] not create glare or shine directly onto such properties.” Id. “During the hours that the business is closed (11:00 p.m. to 7:00 a.m.), all lighting [was required] to be turned off except the minimum amount necessary for security purposes.” Id.
• There could be “[no] more than three trailer truck deliveries to the site in any one week,” with all such deliveries “limited to the hours of 8:00 a.m. to Noon.” Id. All truck traffic was required to be “directed one way around the building in a counter-clockwise direction to the loading area at the rear (west side).” Id.
• Erection of “a chain link fence with slats” was required “on top of the retaining wall along the westerly edge of the property where it abuts [the Medeiros residence].” Id. at 12. The fence was required to be “six feet in height at its northerly end, gradually decreasing in height as it approache[d] Buffinton Street, in a manner that [would] not block sight-lines for traffic traveling easterly on Buffinton Street.” Id.
• Richmond was required to “plant and maintain low-growth bushes and shrubs at the required intervals along the landscaped grassy strips shown on the plan along the frontage of the lot.” Id. These bushes and shrubs were required to “be maintained at a height that [would] not interfere with traffic sight-lines on the abutting roads or at the ingress/egress points.” Id.
• The freestanding sign at the southwest corner of the lot was required to be erected “as shown on the site plan and so that the sign areas [would] be more than eight feet above the ground and the entire sign [would] be less than 35 feet in height.” Id. The message board area below the main Walgreens sign could “not be electronic and must be manually changed.” Id.
• All wall signs were required to be “installed and maintained as shown on the plans submitted.” Id. No additional signs were allowed to be utilized without further permission of the board. Id. All signs were required to be lit “by continuous illumination from within, or directed down and in from above, and [could] not be animated, traveling or flashing.” Id.
• The permits issued were “only for use in connection with Richmond’s business, and [did] not permit such use by any other individual or entity, or use for any other purpose.” Id. (emphasis in original).

The board allowed the project to proceed with one exception and one discretionary variation from the normal requirements of the Bylaw. The exception was from the requirements of Bylaw § 6.10.2 (a) and the discretionary variation was from the requirements of Bylaw § 6.10.2 (b). Bylaw § 6.10.2 (a) provides, Any lot of a planned development which is adjacent to a Residence or to any building or lot used for dwelling purpose[s] in any district shall be provided with a continuous wall of solid appearance or tight evergreen hedge six feet high along or parallel to said lot line. Such hedge shall not extend within twenty feet of the front lot line. In lieu of this provision a landscaped area at least twenty-five feet in width may be provided, subject to approval of the Board of Appeals.

In response to what it interpreted as the request of the abutting residential property owners (plaintiffs Wayne and Sandra Medeiros), the board ordered Richmond to put a slatted chain-link fence along the top of the retaining wall between the two properties instead of “a continuous wall of solid appearance or tight evergreen hedge six feet high.” [Note 13] Decision at 6.

Bylaw § 6.10.2 (b) provides,

Any street frontage of a planned development shall be planted with one shade tree for every thirty feet of side frontage, except that the Board of Appeals may allow the substitution of other landscaping of a suitable nature. Solid shade trees or landscaping shall be located in a strip five feet wide along the frontage of the lot.

The board expressly found that, “in the circumstances, the planting of shade trees would not be appropriate” [Note 14] and, instead, required Richmond “to plant and maintain low-growth bushes or shrubs at the required intervals along the landscaped grass strips shown on the plan along the frontage of the lot.” Decision at 6. The bushes and shrubs were required to be “maintained at a height that [would] not interfere with traffic sight-lines on the abutting roads or at the ingress/egress points.” Id.

With these conditions, exceptions and substitutions, the board found that “there was sufficient room and adequate planning at the site for the proposed use and that the petitioner’s proposed use and site plans met the requirements of the bylaw.” It further found that “there was no definitive evidence that the proposed new use will be more detrimental to the neighborhood or to the public good than prior uses at the site, other present uses in the same zoning district, or uses that would be allowed as of right on the site as zoned.” [Note 15] Id. at 5. The board rejected the argument that the revised plan needed to be re-submitted to the planning board for review and report under Bylaw § 6.10.3 (b) since there had not been a “substantial change in the plan deviating to a greater degree from the By-law requirements.” Id. at 7. Rather, it noted that “the changes to the plan ha[d] brought it into greater conformity with the By-law requirements” and, in any event, a planning board report under the Bylaw is “strictly advisory in nature.” Id. (emphasis added). Planned development approval was therefore granted.

In addition to granting planned development approval, the board Richmond’s application for a special sign permit under Bylaw § 6.5.10 or, to the extent necessary, a variance from Bylaw § 6.5.4, allowing the installation and maintenance of a freestanding sign and wall signs that were larger than otherwise allowed as of right under the Bylaw. A free-standing sign of up to 120 square feet is permitted as of right, Bylaw § 6.5.4(3), and a second sign of equal size is also permitted where (as here) the lot is on two or more public ways, Bylaw § 6.5.4 (5). Richmond’s single free-standing sign, in two panels, will be 132 square feet. At twenty-five feet high, it will be ten feet less than the maximum height permitted as of right, Bylaw § 6.5.4(4), and two feet, two inches lower than the height of the building itself.

Wall signs are permitted as of right up to a maximum of twelve percent of the area of the building wall facing a public way or 120 square feet, whichever is less. Bylaw § 6.5.4(2). Richmond sought permission to install two sets of internally-illuminated wall signs, indicating “Walgreens,” “One-Hr. Photo,” and “Pharmacy.” Each set (one facing Buffinton Street and one on the West County Street/Route 138-side wall) is approximately 142 square feet in size. Smaller signs indicating “Drive Thru Pharmacy” and “Exit” were also proposed for installation over the drive-through lane canopy. The total area of the signs would be approximately 150 to 154 square feet on each of the two walls, exceeding the 120-square-foot size permitted as of right. Bylaw § 6.5.4(2).

The board allowed the special sign permit/sign variance, conditioned on the signs being “lit by continuous illumination from within and may not be animated, traveling, or flashing,” based on its findings that (1) the proposed signs were needed for effective advertisement of the proposed store; (2) the slight increase in their size was warranted due to the location of the site at some distance off of the state highway (Route 138), with an intervening park to the east of the site, and due to the unique shape and configuration of the lot in question; (3) to deny a sign permit by insisting upon a literal enforcement of the Bylaw would deprive Richmond of reasonably advantageous use of the property and constitute a hardship; (4) the signs would not confuse or distract from traffic signals, create glare, or shine directly onto residential properties, and would therefore not have a detrimental effect on the neighborhood; (5) the special permit/variance could be granted without substantial detriment to the public good because the signs permitted were consistent with other signage in the area, including the Brooks Pharmacy immediately across Buffinton Street and those allowed for similar businesses in other areas of the town; and (6) the special permit/variance could be granted without substantially derogating from the intent and purpose of the Bylaw because the Bylaw specifically provides for the granting of a sign permit for larger signage under the circumstances that exist in this case (Bylaw § 6.5.10). Decision at 8-9.

Other relevant facts are noted in the analysis below.

Analysis

Planned Development Approval

As noted above, the proposed Walgreens requires planned development approval because “a lot of one acre or more” would be used for a commercial purpose. Bylaw § 6.10.1 (a). Such approval requires compliance with “all provisions set forth in [the zoning] bylaw” (e.g., the number of parking spaces), the three provisions of Bylaw § 6.10.2 (a) – (c) (screening, landscaping, and ingress/egress), and the site plan provisions of Bylaw § 6.10.3. Because the proposed use varied sufficiently from the immediately prior use, the board was also required to evaluate the development in light of the factors set forth in Bylaw § 6.10.4.

The board’s decision addressed all of these matters, granting planned development approval subject to a lengthy series of conditions. With the one exception addressed below (the board’s permission of a “slatted fence” on top of the wall between the Richmond and Medeiros properties, rather than “a continuous wall of solid appearance or tight evergreen hedge six feet high,” Bylaw § 6.10.2(a)), the board’s decision rested on legally tenable grounds, was neither arbitrary nor capricious, and is thus upheld and affirmed.

With One Exception, Each of the Bylaw’s Specific Requirements for Planned Development Approval Were Met

Bylaw §§ 6.10.2 (a) – (c) contain three specific requirements for planned development approval. I discuss each of them in turn.

Section 6.10.2(a) requires “a continuous wall of solid appearance or tight evergreen hedge six feet high along or parallel to” the lot lines adjacent to residences. The Medeiros property, immediately adjacent to 346 Buffinton, is a residence. Richmond was ready, willing and able to install the specified wall or hedge. Decision at 6. Instead, in response to Mr. Medeiros’ statement that he “didn’t want the arborvitaes [and], if [he] had no choice in a fence being put up there, or a retaining wall with a fence, [he] preferred a chain link fence with slats in it,” [Note 16] the board directed Richmond to install a chain link fence with slats on top of the proposed retaining wall between the properties. [Note 17] Despite Mr. Medeiros’ statement, the plaintiffs, including Mr. Medeiros, now assert the board’s failure to insist upon strict compliance with § 6.10.2(a) as one of the grounds for their challenge to the planned development approval. They are correct on this point. The Bylaw allows only one exception to its strict requirements — the substitution of “a landscaped area at least twenty-five feet in width.” Bylaw § 6.10.2.(a). Richmond does not want to employ this substitute as it would eliminate needed parking spaces and most of the drive-around area on that side of the building. Thus, Richmond must install either the specified hedge or the continuous wall in strict conformance with the Bylaw’s requirements.

Section 6.10.2(b) requires street frontage to be “planted with one shade tree for every thirty feet of side frontage, except that the Board of Appeals may allow the substitution of other landscaping of a suitable nature.” Acting in accordance with this grant of discretion, the board waived the requirement of shade tree plantings for safety reasons (traffic sight-lines) and, instead, required Richmond to “plant and maintain low-growth bushes or shrubs at the required intervals along the landscaped grass strips shown on the plan along the frontage of the lot.” Decision at 6. This was eminently reasonable. Buffinton Street is a heavily-used route to Swansea and the Buffinton Street/West County Street/Route 138 intersection is a busy one. Traffic sight-lines are thus important and the board appropriately recognized this. Moreover, the substitution of low-growth bushes or shrubs for shade trees will not adversely affect the neighborhood. The properties immediately across the street (including the Williamson/Bergeron house) are significantly uphill (resulting in the reduction of light and other impacts) and the Brooks Pharmacy is itself a commercial enterprise.

Section 6.10.2(c) states that “no more than one ingress and one egress shall be allowed to and from a planned development for access to off-street parking and loading spaces for each street to which the planned development has access. No ingress or egress shall be more than thirty-five feet wide.” As the board correctly found, Richmond’s ingress/egress plans met these requirements. Decision at 6; see Ex. 9 (site plans). Richmond’s Site Plans Met the Requirements of Bylaw § 6.10.3

Bylaw § 6.10.3 states,

No permit shall be granted for a planned development unless a site plan meeting all of the requirements of this by-law shall have been filed with and approved by the Board of Appeals. The site plan shall indicate the location of principal and accessory buildings and structures, the provision of off-street parking and loading spaces, including provisions for egress and ingress, the location of other open space on the site, the location and design of signs and other advertising devices, the proposed use of any buildings or structures and such other pertinent information as may be required by the Board of Appeals.

As the board found, the approved site plans fully complied with these requirements. [Note 18] Decision at 7; see Ex. 9.

The Board Acted on Legally Tenable Grounds, Rationally, and Not Arbitrarily or Capriciously, on All of the Remaining Planned Development Approval Issues

The board correctly found that the proposed Walgreens would be a substantial change from the immediately preexisting use (as the Ferrara Business Center), measured by the criteria set forth in Bylaw § 6.10.4(a) – (c). [Note 19] Decision at 5. It thus proceeded to evaluate the project in accordance with the special permit standards in Bylaw § 7.5. [Note 20] That evaluation and the board’s ultimate decision were based on legally tenable grounds, rational, and neither arbitrary nor capricious. The board’s decision is thus upheld and the plaintiffs’ challenges are dismissed.

The development’s impacts are the typical ones. However, Richmond (with the board’s conditions) has properly addressed, minimized or alleviated them and, as demonstrated below, the plaintiffs’ objections to the Walgreens do not have merit. In addition, many of their complaints (e.g., noise and light) must be analyzed in view of the fact that the proposed Walgreens is in a business district where, as recognized by such zoning, business-type impacts are expected and permitted to occur.

The plaintiffs generally object to both the size and use of the Richmond site. However, it is in a business district and thus is properly zoned for a retail store such as this. See note 15, supra. It is, in fact, in one of the most active business areas of Somerset — at the intersection of two of the town’s busiest roads (Route 138 and Buffinton Street (a main travel route to Swansea)), with a large shopping center to its rear, a Brooks Pharmacy directly across Buffinton Street, and numerous other nearby businesses up and down Route 138. There is nothing unusual about the proposed structure or use. The Walgreens will be a single-story, 13,650-square-foot building. It will contain a retail pharmacy, along with the usual array of health and beauty products, snack and grocery items, small appliances, light bulbs, batteries, film processing, seasonal goods and the like. The Richmond site will have adequate parking (ninety-one parking spaces, four of them handicapped). It will also have adequate access via an entrance on West County Street and a separate entrance on Buffinton Street. The Walgreens’ deliveries will be by truck and there is more than adequate space for those trucks to maneuver, load and unload. Overall, the Walgreens is located in an appropriately shaped and configured building, on an appropriately sized and configured lot, and there is no reasonable alternative for providing its type and scope of services on this site.

The plaintiffs also object to the amount of traffic generated by the Richmond site. They did not offer any expert testimony to support their objections. However, the testimony from Richmond’s traffic expert, Jeffrey Santacruce, refuted the plaintiffs’ claims and I credit this testimony. Mr. Santacruce indicated that the new traffic the Walgreens will generate will likely be no more than one additional car traveling along Buffinton Street every two minutes during the peak hour, which will have an insignificant impact on traffic conditions. There was no credible evidence that there would be significant, additional congestion or that queues would result from the Walgreens. Traffic sight-lines into and out of the site, particularly with the substitution of low level shrubs and bushes instead of shade trees, will be more than adequate. Traffic on-site is also minimized. There is more than adequate parking — ninety-one spaces — assuring that cars will quickly and easily find a place to park. There will be only one drive-through lane and signage, sight lines, directional lines and site layout will all work together to assure a smooth traffic flow into, out of, and around the site.

The plaintiffs argue that the Walgreens will generate an unacceptable amount of noise. However, noises from trash compactors, truck deliveries, cars driving on the site, car doors opening and closing, and customers and employees will be no more than normally expected from business operations, will be buffered by the property’s landscaping, and will be confined to business hours. For example, all truck deliveries to the store are limited to the hours of 8:00 a.m. to noon. There can be no more than three trailer truck deliveries to the Richmond site per week. In addition, noise in general will be minimized by the board’s express conditions that the facility may employ no more than twelve to fourteen individuals at any one time and may be open only from 7:00 a.m. to 11:00 p.m., seven days a week. The solid fence or hedge along the Medeiros border, required by the Bylaw, also will buffer noise from the Richmond site (including the truck loading area), as will the low-growth landscaping (permitted by the board in lieu of shade trees) towards the front.

The proposed project, subject to the board’s conditions, also ensures that light impacts will be minimized. By express condition, all lights for the premises, including those for the parking areas and signage, must be directed down and away from neighboring residential areas so that they will not create glare or shine directly onto such properties. [Note 21] In addition, all lighting “must be turned off during the hours the business is closed (11:00 p.m. to 7:00 a.m.) except for the minimum amount necessary for security purposes.” Decision at 11. The free-standing and wall-mounted signs are lower than the building itself, are lit by continuous illumination from within (or directed down and in from above), and will not be animated, traveling or flashing. As with noise, the solid fence or hedge along the Medeiros border will screen that property from light impact. Moreover, both the Medeiros and across-the-street Williamson/Bercheron and other residences are uphill from the site and thus further removed from any glare. The light poles near the Medeiros boundary do not violate the letter of Bylaw § 6.10.2(a), which does not mention light poles at all and, for the reasons above, the lighting also does not violate the intent of the Bylaw.

The new grading and drainage system at the site will address any current drainage issues that exist and certainly not make them any worse. [Note 22] The property will be graded at a slope between four percent and 1.5 percent so that it pitches downwards away from Buffinton Street and towards West County Street. A new drainage system will be installed to capture and treat run-off. The nearest residential properties (Medeiros to the west, and the houses across Buffinton Street to the south) are uphill and will not be affected by drainage from the site.

Finally, there is no merit to the plaintiffs’ remaining objections. Mr. Medeiros has no right to insist upon the use of five feet of the Walgreens’ property in conjunction with his driveway and the board’s decision was not conditioned on his being given such use. The “continuous wall or hedge” between the properties must comply with the Bylaw regardless of whether the site plan gives a detailed indication that it will do so. Similarly, the lighting at the site must comply with the Decision’s commands regardless of whether the site plan indicates so or not. Simply put, the Decision controls and, if the Decision’s commands are not met, a zoning enforcement action can be brought.

Somerset wishes the addition of this Walgreens to its business district to serve its citizens. It has determined that the service it will provide outweighs any adverse impacts. The plaintiffs’ arguments that more could have been done to mitigate the impacts from the Walgreens misses the point. The true question is whether the board acted reasonably in approving this project with these mitigation measures. For the reasons discussed above, it is clear that it did. With these mitigation measures, most of which are mandatory conditions, the Walgreens more than meets the tests of Bylaw § 7.5. The board was thus justified in finding either explicitly or implicitly in the affirmative decision that (1) “the use is not noxious, harmful or hazardous, is socially or economically desirable and will meet an existing or potential need”; (2) “the advantages of the proposed use outweigh any detrimental effects, and such detrimental effects on the neighborhood and the environment will not be significantly greater that could be expected from the development which could occur if the special permit were denied”; and (3) “the applicant has no reasonable alternative to accomplish this purpose in a manner more compatible with the character of the immediate neighborhood.” Bylaw § 7.5.1.

The Sign Special Permit/Variance Was Properly and Validly Granted

As noted above, in addition to granting planned development approval, the board granted Richmond’s application for a special sign permit under Bylaw § 6.5.10 or, to the extent necessary, a variance from Bylaw § 6.5.4, allowing the installation and maintenance of a freestanding sign and wall signs slightly larger than those allowed as of right. The freestanding sign would be twelve square feet larger than the 120 square feet permitted as of right. The several wall signs would, in total, be 150 to 154 square feet on each of the two walls or approximately thirty-four square feet larger than the 120 square feet permitted as of right.

Bylaw § 6.5.10 provides,

The Board of Appeals may, by special permit, allow signs larger or installed in a different manner or location than specified in the preceding paragraphs, but only if the Board of Appeals finds that because of location off an expressway or a major highway, lot shape, or obstruction by other signs or structures, a sign conforming to the preceding paragraphs could not be effective.

Variances require a finding that “demonstrable and substantial hardship to the petitioner or appellant” would exist if the variance is not granted, supported by the following specific findings:

a. There are special circumstances relating to the soil conditions, shape or topography of the land or structures for which the variance is sought, especially affecting such land or structures but not affecting generally the zoning district in which it is located;

b. Due to such special circumstances, a literal application of the provisions of this by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant;

c. The specific variance granted by the board is the minimum variance that will grant reasonable relief to the petitioner or appellant, and is necessary for a reasonable use of the land or structure; and

d. The granting of the variance will be in harmony with the general purpose and intent of this by-law, and will not be injurious to the neighborhood or otherwise detrimental to the public good. In addition to considering the character and use of nearby buildings and land, the Board, in determining its findings, shall take into account the number of persons residing or working in such buildings or upon such land, and the present and probable future traffic conditions.

Bylaw § 7.7. The Bylaw also allows the board to “attach such conditions, safeguards and limitations both of time and use as are deemed necessary to protect the surrounding neighborhood and the public good . . . .” Bylaw § 7.7.1.

In this case, the board found the following:

1. “[T]he proposed signs [were] needed for effective advertisement of the proposed store.” Decision at 8.

2. The “slight increase in [their] size was warranted due to the location of the site at some distance off of the state highway (Route 138), with an intervening park to the east of the site, and due to the unique shape and configuration of the lot in question.” Id.

3. “[T]he proposed signs [would] not confuse or distract from traffic signals, create glare, or shine directly onto residential properties, and [would] therefore not have a detrimental effect on the neighborhood.” Id. at 9.

4. To the extent that a variance was required, “a variance was warranted due to the unique circumstances [of the property] and that to deny a sign permit by insisting upon a literal enforcement of the Bylaw would deprive [Richmond] of reasonably advantageous use of this property and constitute a hardship.” Id.

5. The special permit/variance “could be granted without substantial detriment to the public good because the signs permitted [were] consistent with other signage in the area, including that allowed for another drug store (Brooks) immediately across Buffinton Street and that allowed for similar businesses in other areas of the Town.” Id.

6. The special permit/variance “could be granted without substantially derogating from the intent and purpose of the Zoning By-law because the Zoning By-law specifically provides for granting of a sign permit for larger signage under the circumstances that exist in this case [Bylaw §6.5.10].” Id.

These factual findings addressed each of the Bylaw’s requirements (both for a sign permit and a variance) and were more than adequately supported by the evidence at trial and my observations at the site view. [Note 23] Larger signs are needed to be readily seen from the main street (Route 138) because the site is set back from that street, separated by a park, and partially blocked by other buildings. These circumstances are unique to the site and do not affect the zoning district generally. A substantial hardship would thus be created if these larger signs were not permitted. The signs are only minimally larger than those permitted as of right and are either at or under the height permitted as of right. When installed and operated in accordance with the conditions that were imposed (all lighting must be directed away from neighboring residential areas so that it will not create glare or shine directly into such properties and all signs must be lit by continuous illumination from within, with no animation, traveling or flashing, and turned off when the business is closed), the signs will not be confusing or intrusive. They are completely consistent with the signage of the surrounding businesses, including the Brooks Pharmacy directly across Buffinton Street. The board’s conclusions from those facts (the findings listed above) are fully warranted, and well within its allowable discretion. The special sign permit and/or variance is thus AFFIRMED.

Conclusion

For the foregoing reasons, I find and rule that, with one exception, the board’s Decision was not “based on a legally untenable ground, [nor was it] unreasonable, whimsical, capricious or arbitrary.” Roberts, 429 Mass. at 486. I thus AFFIRM the board’s decision and DISMISS Count III (all of the plaintiffs’ remaining claims), with that one exception. That exception is the board’s ruling (based upon what the board reasonably believed were the affected abutters’ wishes, but contrary to the explicit requirements of the Bylaw), directing Richmond to put a slatted chain link fence on top of the wall it will construct between its property and the Medeiros property rather than a “continuous wall of solid appearance or tight evergreen hedge six feet high along or parallel to said lot line.” Bylaw § 6.10.2(a). Accordingly, I affirm the board’s decision contingent upon Richmond placing such a wall or hedge (Richmond may choose to do either) along the Richmond/Medeiros property line in accordance with the Bylaw’s requirements. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 21 November 2008