AMERADA HESS CORPORATION and GEORGE PAGOUNIS v. ROBERT HAVENER, MICHAEL J. HICKEY, JR., SCOTT LANDGREN, GEORGE MILLER, JOHN CAVANAUGH, TIMOTHY DOOLING, PAUL MULKERRON, and LAURA GODIN, as they are members of the TOWN OF NATICK ZONING BOARD OF APPEALS

Introduction

This case concerns the use of the commercially-zoned property at 230 Worcester Road (Route 9) in Natick, owned by plaintiff George Pagounis and leased to plaintiff Amerada Hess Corporation (“Hess”). Hess currently operates a gasoline station on the property pursuant to a special permit originally issued in 1957 by the Natick Board of Selectmen and re-granted by the defendant Zoning Board of Appeals (“ZBA”) in 1968. The buildings on the property have non-conforming setbacks and side yards, but the property has long-since received variances for each of those non-conformities.

In keeping with the changing economics of gasoline stations, Hess proposes to eliminate the existing service bays, reduce the building’s size by approximately one-third, renovate the remaining interior, and begin selling a limited array of retail convenience items, primarily snack foods and soft drinks. [Note 1] The site would be re-landscaped, individual parking spaces marked and striped, and the existing curb cuts onto the neighboring residential streets eliminated so that vehicles can only access and exit via Route 9. Because the sale of convenience items adds a “retail store” component to the existing operations, a “special permit modification” is required to implement this proposal. [Note 2] An application was duly filed. The ZBA denied the application and the plaintiffs timely brought this G.L. c. 40A, §17 appeal.

The ZBA’s denial was based on its findings that “the desirable [sic, desired] relief” (1) “may not be granted without nullifying or substantially derogating from the intent and/or purpose of the Zoning By-Laws, as said convenience store [of the size and type proposed] will tend to intrude upon adjacent residences and create an appearance of building congestion on this parcel and in this neighborhood,” and (2) “may not be granted without substantial detriment to the public good, as the proposed convenience store will not tend to enhance this property and the neighborhood in general and raises substantial issues of safety with respect to the abutting residential neighborhood.” Zoning Board of Appeals Decision at 4 (Sept. 5, 2007). The plaintiffs contend that the ZBA’s denial was arbitrary, capricious and based on legally untenable grounds [Note 3] because (1) retail use is allowed as of right in this zoning district, [Note 4] (2) the reasons given by the board did not have a substantial basis in fact, and (3) no rational view of the facts supports the board’s conclusion that the plaintiffs “failed to meet one or more of the relevant criteria found in the governing statute or by-law.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-75 (2003); Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973).

The case was tried before me, jury-waived. Based upon the uncontested facts set forth in the amended joint pre-trial memorandum, the agreed exhibits, the additional exhibits admitted into evidence at trial, the witness testimony admitted into evidence at trial, my assessment of the credibility, weight and inferences to be drawn from all of this evidence, and as more fully set forth below, I find that the plaintiffs more than satisfied the relevant criteria and the Board acted arbitrarily and capriciously when it denied the special permit modification. That denial is therefore ANNULLED and VACATED, and the case is remanded with instructions that the special permit modification promptly be issued. See G.L. c. 40A, § 17 (court shall annul decision if found to exceed board’s authority or “make such other decree as justice and equity may require”); Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 827-828 (1998) (affirming court order directing issuance of permit “since it is clear from the record that the same ultimate result would ensue from an unspecific remand as that effected by the challenged order”).

Facts

The plaintiffs’ property, located at 230 Worcester Road (Route 9) in Natick, is in a Commercial II Use District and Highway Corridor Overlay District. Gasoline stations are allowed in such districts with a special permit. Bylaw § III-A.2, Use Nos. 30 and 31. Retail stores are permitted as of right. Id., Use No. 22; Bylaw §§ 322.1 and 323.1 (Highway Overlay Districts).

The property, bounded by Route 9’s eastbound lanes on the north, [Note 5] Maine Avenue on the west, New Hampshire Avenue on the east, and residences to its south, was originally zoned for residential use. In the spring of 1957, it was rezoned to “business”— a district that allowed gasoline stations if the town’s board of selectmen gave its approval. [Note 6] A “gas station permit” was duly obtained from the selectmen and, shortly thereafter (October 1957), a variance was granted by the ZBA from the front yard setback requirement to allow the station’s gasoline pumps to be located closer to Route 9. Decision of the Board of Appeals of the Town of Natick in the matter of the petition of Adelor E. Tatro . . . and John D. MacDonald (heard Oct. 17, 1957). [Note 7]

In July 1968, the ZBA granted a variance from the front, rear, and side yard requirements in connection with an addition to the existing building and the installation of lighting upgrades. Decision of the Board of Appeals of the Town of Natick in the matter of the petition of Vera M. McDonald and Texaco Inc. (July 16, 1968). [Note 8] The then-property owner also requested a special permit “for the overall operation of the gasoline service and filling station despite the fact that this station has been in existence for several years,” which was granted by the ZBA based on its finding that “the proposed addition and the proposed use is one which will serve the public welfare, safety and convenience.” [Note 9] Id. at 2-3.

In 1991, the ZBA granted another variance from the front and rear yard setbacks for the installation of a new canopy and pumps, as well as a special permit for a standing sign. ZBA Decision Case No. 910046 (Sept. 12, 1991), amended in part by ZBA Decision Case No. 910060 (Dec. 16, 1991). [Note 10] These setback variances and the special permit for signage were re-granted by the ZBA in 1993 after the previously-authorized (1991) plans were not implemented due to lack of financing. ZBA Decision Case No. 930059 (Nov. 3, 1993). [Note 11]

In March 2007, Hess applied to the ZBA to modify the special permit granted in 1968 to allow the construction, operation, and maintenance of a retail convenience store in the same building as the existing gasoline station. [Note 12] As noted above, Hess proposes to eliminate the existing service bays, reduce the building’s size by approximately one-third, [Note 13] renovate the remaining interior, and use between 600 and 650 square feet of that space to stock and sell a limited array of retail convenience items, primarily snack foods and soft drinks. [Note 14] The site would be re-landscaped, nine individual parking spaces marked and striped, a sidewalk installed around the building and along the entire Route 9 frontage, and the existing curb cuts onto the neighboring residential streets eliminated so that vehicles can only access and exit via Route 9. [Note 15] The ZBA denied that request by decision filed with the town clerk on September 5, 2007. ZBA Decision Case No. 2007-016 (Sept. 5, 2007) (“decision” or “ZBA decision”). The ZBA based its decision on its finding that the modification could not be granted “without nullifying or substantially derogating from the intent and/or purpose of the Zoning By-Laws, as said convenience store will tend to intrude upon adjacent residences and create an appearance of building congestion on this parcel and in this neighborhood,” and its finding that a modification allowing the convenience store would cause “substantial detriment to the public good, as the proposed convenience store will not tend to enhance this property and the neighborhood in general and raises substantial issues of safety with respect to the abutting residential neighborhood.” Id. The plaintiffs appeal this decision pursuant to G.L. c. 40A, §17.

Other pertinent facts are included in the sections below.

The Standard for a G.L. c. 40A, § 17 Appeal of a Denial of a Special Permit

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 upon those facts. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (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)). In making those findings, “the judge is not allowed to give the board’s findings or decision evidentiary weight.” Josephs, 362 Mass. at 295 (citing Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 , 321-322 (1955)). They may only be based on the evidence heard by the court. Devine, 332 Mass. at 322.

Where, as here, a special permit is denied, “[e]ven when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld, as will that of a judge affirming that action under G.L. c. 40A, § 17, if a rational basis for the denial exists which is supported by the record. So long as any reason on which the board can fairly be said to have relied has a basis in the trial judge’s findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the board’s action must be sustained regardless of other reasons which the board may have advanced.” Davis v. Zoning Bd. of Canton, 52 Mass. App. Ct. 349 , 356 (2001) (internal quotations and citations omitted). “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 omitted).

In determining whether the decision was “based on a legally untenable ground,” the court 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. 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. See Britton, 59 Mass. App. Ct. at 74-75 (board’s decision must be supported by a “rational view of the facts”); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 600-602 (1962) (board’s determination that proposed use would adversely affect the health and safety of persons living in the neighborhood or be detrimental to the public welfare was not supported by “substantial evidence”, “could not reasonably be found”, and was thus reversed). If the board’s decision fails that test, the court should annul it, see, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney, 344 Mass. at 600-602, and may also “make such other decree as justice and equity may require” which, in appropriate circumstances, can include an order for permits to issue. G.L. c. 40A, § 17; see e.g., Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 827-828 (1998).

Analysis

G.L. c. 40A, § 6 provides, in relevant part,

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence . . . but shall apply to any change or substantial extension of such use . . . . Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Although this statute can sometimes be “difficult and infelicitous” [Note 16] in its application, cases involving Section 6 have outlined a three-tiered analysis.

First, it must be ascertained whether the project in question involves a change or substantial extension of the preexisting nonconforming use. This determination is based upon whether the proposed use “reflects the nature and purpose of the use prevailing when the zoning by-law took effect”; whether “there is a difference in the quality or character, as well as the degree, of use”; and whether “the current use is different in kind in its effect on the neighborhood.” Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966) (internal quotations and citations omitted); see also, e.g. Cape Resort Hotels, Corp. v. Alcoholic Licensing Bd., 385 Mass. 205 , 212 (1982); Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 653, 663 (1973); Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 728, n.4 (2005). These considerations are often collectively referred to as the “Powers test.”

If the proposed use is consistent with all of the “Powers test” considerations, the use is protected under Section 6 and the project may proceed, regardless of any town bylaw to the contrary. Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 413 (1995). [Note 17] However, if the use fails any part of the “Powers test,” the project may not proceed unless it is otherwise permitted by the town bylaw (the second level of analysis) and, if so, “there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood,” Green v. Bd. of Appeals of Provincetown, 26 Mass. App. Ct. 469 , 472 (1988), rev’d on other grounds, 404 Mass. 571 (1989); Powers, 363 Mass. at 654; Jasper v. Michael A. Dolan, Inc., 355 Mass. 17 , 24 (1968), or the denial of such a finding is arbitrary and capricious, see Colangelo, 407 Mass. at 246; Mahoney, 344 Mass. at 601-02 (the third level of analysis). [Note 18]

As discussed in the court’s prior orders, the addition of a retail store to the property, even though the store will be located within the same building as the gasoline station, even though the building will be considerably smaller than the existing one, even though many modern gasoline stations contain convenience store operations of one sort or another, and even though retail use is permitted in this district as of right, is quite clearly a “change in use” beyond the Powers protections and thus requires a modification of the special permit. Memorandum and Order Denying Plaintiffs’ Motion for Summary Judgment at 6 (Jun. 17, 2008). As previously noted:

Natick considers gasoline stations and retail stores to be separate uses. Bylaw § III-A.2, Use Nos. 22 (retail stores), 30 (repair garage for motor vehicles), 31 (commercial parking lot or parking garage, filling, or service station). Moreover, the Bylaw definition of “gasoline station/service station/filling station” does not include any sales of food, only motor vehicle-related items. Bylaw §200.

* * *

Importantly, the Bylaw views the change of even a part of an existing building to another use as a “change in use.” Bylaw §200 (“Change in Use” is defined as “an alteration by change in part or all of an existing structure from one use category or purpose to another use category or purpose, as those uses are listed in the Schedule of Uses, §III-A.2.”). Here, the change is to the specially permitted use — the gasoline station — and the change is the addition of an entirely new use. The inquiry does not end just because the new use is permitted as of right. Simply put, the town has made the permissible zoning judgment that the impacts created by combined uses may be different than the impacts of one or the other use existing by itself. If both are as of right uses, the Bylaw apparently permits their combination as of right. [Note 19] But if one of the uses exists only by special permit, it can only exist by the rules that govern special permits, and those involve the review and reasonable judgments of the ZBA, to be rendered in accordance with the Bylaw standards. Bylaw §VI-E.2. The plaintiffs themselves recognized that they needed a modification to their special permit when they made their application to the ZBA. [Note 20]

Id. The analysis thus moves to levels two and three; does the Natick bylaw permit the relief Hess seeks and, if so, was the board’s finding that the bylaw’s criteria were not met based on an untenable legal ground or arbitrary and capricious?

The “level two” inquiry is easily answered, and in the affirmative. A pre-existing non-conforming use of the type at issue here (a gasoline station, which received the appropriate permit when it was built in 1957 and had its status reaffirmed in 1968) [Note 21] may be extended or altered (“shall be permitted”) unless the proposed change, extension or alteration is “substantially more detrimental than the existing nonconforming use to the neighborhood.” Bylaw § V-A.2 (emphasis added). [Note 22] The only question remaining, and the one on which this case turns, is whether the ZBA’s denial was based on a legally untenable ground or lacked a rational factual basis. I begin with the reasons given by the ZBA in support of that denial, which plainly show it was guided by a misperception of the bylaw’s requirements.

The change at issue is a change in the use of between 600 and 650 square feet of existing interior space from automobile service and repair to the display and sale of snack foods and other convenience items — a “retail store” as defined by the bylaw. Bylaw § 200. The ZBA’s decision begins by stating that that change could not be granted “without nullifying or substantially derogating from the intent and/or purpose of the Zoning By-Laws, as said convenience store will tend to intrude upon adjacent residences and create an appearance of building congestion on this parcel and in this neighborhood.” Decision at 4. This is a legally untenable ground. The site is on Route 9, commercially zoned, and retail stores are allowed by right. Bylaw § III.A.2, Use 22. The town, through its zoning bylaw, has made a legislative judgment that such stores are appropriate in such locations, whether adjacent to residences or not, and it is neither the ZBA’s place, nor within the ZBA’s power, to say otherwise. See Conroy v. Conservation Comm’n of Lexington, 73 Mass. App. Ct. 552 , 558 (2009) (“it is a fundamental principle of administrative law that even a properly promulgated regulation is not valid if it is inconsistent with the legislation it implements”). The ZBA’s statement that the convenience store would cause “substantial detriment to the public good, as the proposed convenience store will not tend to enhance this property and the neighborhood in general”, Decision at 4, is also a legally untenable ground, for the same reason. The bylaw declares that convenience stores are permissible in this zone regardless of whether the ZBA believes they “enhance” the property or “the neighborhood in general.”

But this does not end the analysis, since the ZBA’s denial must be affirmed if any reason, supported by the bylaw, the zoning enabling act, and a rational view of the evidence before me, would support a denial. Davis v. Zoning Bd. of Canton, 52 Mass. App. Ct. 349 , 356 (2001) (internal quotations and citations omitted). The final ground asserted by the ZBA — its belief that the proposed project “raises substantial issues of safety with respect to the abutting residential neighborhood”, Decision at 4 — falls into this category, so I turn now to the evidence of the project’s impacts to evaluate whether there is any rational basis for that finding. I also address the three additional “impacts” asserted by the board at trial — light, noise and traffic [Note 23] — by the same standard.

The location of the various structures on the site is not an issue, per se. To the extent they are dimensionally non-conforming (setbacks), they have long since received variances, [Note 24] not restricted to use, and the reduction in the building’s size (the remainder of the building remains within its former footprint) will actually increase its distance from the nearest residences. See Trial Exs. 28 and 29. [Note 25] The issues — and the only issues — are whether the proposed use of the site and those structures as a combined gasoline station/convenience store operation have safety, light, noise and traffic impacts “substantially more detrimental than the existing nonconforming use [the gasoline station] to the neighborhood.” Bylaw § V-A.2.

Noise

Patrick Reffet, Natick’s Community Development Director, was the board’s witness on noise issues. He did not conduct a formal sound study, [Note 26] nor would his education or background qualify him to do so, but instead simply identified potential sources of sound that might arise from the proposed use; the opening and shutting of customers’ car doors, the unloading of delivery trucks, dumpster use, parking lot conversations between individuals, and the possibility of unintentionally-triggered car alarms. None of these, however, would be substantially greater with the proposed gas station and convenience store than the current gasoline station configuration, and no board could rationally have concluded otherwise. The gasoline station already generates considerable car traffic in and of itself, and it is on Route 9 whose traffic generates considerable background noise. Customers already leave their cars to operate the self-service gasoline pumps and to walk to, from and near the building to pay for that gas, use the bathrooms, or wait for their cars to be inspected. As discussed below in the “traffic” section, there will be relatively few “new” customers coming solely for convenience items; most would already have come for gasoline alone. The gasoline station currently has service bays capable of accommodating four cars at any given time. If those service bays were used, as they rightfully could be, that use would produce noise levels far greater than those that concern Mr. Reffet since their large entry doors would frequently open and shut (a loud noise in and of itself) and, when open, the noises from repairs, service, car inspections and interior conversations would escape to the outside. It is unlikely that the number of accidentally triggered car alarms (if any) will increase, and certainly not substantially. Delivery trucks already come and go on a regular basis to supply the station with the gasoline, oil, brake fluid, replacement parts, soda, chips, chocolates, cigarettes, gum and mints it already sells or uses, and there are currently no limitations on the gas station’s hours of operation. [Note 27] Dumpster use will not increase significantly, if at all. [Note 28] Customers may be “on site” longer than before, but most of that will be indoors. Finally, the Hess proposed gas and convenience store will actually shield the neighborhood from potential noise more than the current gas station because the building area would be reduced by one-third, the setback area behind the property would be greater, and the trees and fencing to be added would provide additional noise buffering for the residential neighbors.

Light

There will be no additional light trespass onto neighboring properties (indeed, the amount of such trespass will substantially diminish) and no rational board could find otherwise. The current lights are antiquated “drop downs”, both on the poles and under the canopy that covers the gasoline pumps. They thus have considerable “sideways” glare. The lights that will be installed in connection with the proposed gasoline and convenience store will be modern, downwardly-directed lights. Those on the poles will be in boxes and focused downward. Those under the canopy will be fully recessed flat lens lights, again focused downward. The canopy itself will not be illuminated. The parking spaces will not cause any additional light from cars parking there because they could be placed in those locations, without restriction, under the current use. There will also be considerable perimeter landscaping, including trees, bushes and fences, that will provide light and sound buffering from the residential properties.

Traffic

There will be no material traffic impact resulting from the proposed change in use, and no rational board could conclude otherwise. The road in question is Route 9, a four-lane median divided highway and one of the busiest in the commonwealth. The section in front of the property (the two eastbound lanes) is presently used by a little over 2,000 vehicles during the morning peak hour, and a little over 2,100 vehicles during the afternoon peak. Actual traffic counts were taken of the number of vehicles presently entering and exiting the site, and standard ITE figures were used to calculate the additional number that would enter and exit due to the change. After subtracting the number that would otherwise be on the road (the so-called “pass-by” trips), the maximum number of new vehicles resulting from the changed use during peak hours would be twelve (12 trips into the site and 12 out) — a traffic increase on Route 9 of less than one half-percent. [Note 29] The level of service (“LOS”) and “queuing” at the two site driveways on Route 9 will remain approximately the same as the “no build” scenario, both now and into the projected future. [Note 30] There are relatively few accidents now (a total of four in the immediate vicinity over the past three years — a miniscule number given the 21 million cars that passed by over that period of time), [Note 31] and no likelihood that they will increase as a result of the proposed development. As Hess’s traffic analysis concluded, “due to the nature of gasoline stations with convenience stores, which are primarily composed of pass-by traffic, the proposed redevelopment is expected to have minimal impact on the operations if the adjacent roadway and intersections [;] any delay experienced exiting the site driveways will only affect patrons of the site and will not have any noticeable impact on the operations of Worcester Street (Route 9).” Trial Ex. 9 at 18. The residential neighbor’s concern that the addition of convenience items will greatly increase the number of people visiting the site from behind the neighborhood (and thus materially increase traffic on Maine and New Hampshire Avenues, the residential streets that border its east and west sides) has no evidence or data to support it. Indeed, the closure of the entrance/exit driveways onto these streets will likely reduce such traffic, since customers at the site can no longer use them as easily for cut-throughs or ways to avoid Route 9.

The ZBA’s expert traffic witness had no real quarrel with Hess’s numbers or methodology. His disagreement, in essence, was his belief that any addition to the traffic on Route 9 would make it materially worse. I disagree. To the extent there are problems, those problems exist now. The relatively few cars this project will add will have no impact on traffic flow generally.

Safety

The final set of issues concerned safety, and had two components: (1) the ability of fuel delivery trucks to safely access and exit the site from Route 9, and (2) the safety of children and other pedestrians walking to the site from the neighboring homes for convenience items.

The evidence clearly showed that fuel trucks will have no problems with entry and exit, and no rational board could conclude otherwise. The confusion on this issue was caused by the use of an oversized truck in the demonstrative exhibit and the failure to appreciate that the structure in the middle of the site (which appears to block easy maneuvers) is actually a canopy roof with wide access underneath. When the correctly-sized truck was used (i.e. the size of the truck that presently delivers fuel and will make future deliveries), its ability to turn into, maneuver around, and exit the site smoothly was readily apparent. [Note 32]

Pedestrian and children safety will likewise not be an issue. The vehicle entry/exit ways onto the residential streets (Maine and New Hampshire Avenues) will be closed off, eliminating any resultant pedestrian conflicts. There is presently no sidewalk along Route 9. The proposed project will add one, increasing pedestrian safety. There is presently no walkway around the gas station building. The project will add one. There are presently no striped parking spaces, defining where and how vehicles can park. The project will add them. Lighting will be greatly improved, making everything more visible. In short, the project will improve safety, not degrade it, and no rational board could conclude otherwise.

Conclusion

For the foregoing reasons, I find and rule that the plaintiffs more than satisfied the relevant criteria and the ZBA acted arbitrarily and capriciously when it denied the special permit modification. That denial is therefore ANNULLED and VACATED, and the case is remanded with instructions that the special permit modification promptly be issued. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 10 February 2009