In this action, filed on February 13, 2008, Plaintiff seeks to annul a decision of the Woburn City Council, acting as a special permit granting authority under G. L. c. 40A, § 9. The Councils decision denied Plaintiffs application for a special permit to operate a self-service gasoline station and convenience store with hours in excess of 7:00 a.m. to 10:00 p.m. (Plaintiffs Project), on property owned by Plaintiff at 1 Hill Street, Woburn (Project Site). The Project is part of Plaintiffs plan to renovate a vacant building located on the Project Site, to house the operations, wholesale, dispatching, and security office functions for A.L. Prime Energy.
A view was taken by the court in the presence of counsel on June 23, 2010, followed by a one-day trial on June 24, 2010. At trial Plaintiff presented testimony of Anthony Guba, project engineer with Ayoub Engineering and James Winn, a traffic consultant with Greenman-Pedersen, Inc. Donald J. Cooke, managing director for transportation systems at Vanasse Hangen Brustlin, testified for Defendants. Prior to trial, the parties stipulated that the only issue at trial would be traffic and evidence was restricted to that issue. Twenty exhibits were entered in evidence. All parties submitted post-trial briefs on or before August 12, 2010.
Based on all the evidence and reasonable inferences drawn therefrom, as well as observations from the view, this court finds the following material facts:
1. Plaintiff A.L. Prime sells gasoline, operates convenience stores, sells wholesale fuel and heating oil, and provides consulting services in the energy field.
2. On September 24, 2007, Plaintiff filed an application with the City Council, seeking a special permit to operate a self-service gasoline station and convenience store (less than 5,000 square feet) with hours in excess of 7:00 a.m. to 10:00 p.m. (Plaintiffs Application) at the Project Site.
3. The Project Site abuts Interstate 93 and is located in the Interstate Business (B-I) zoning district under the City of Woburn Zoning Ordinance and map (WZO). The 1985 WZO, as amended, is the version of the WZO applicable to Plaintiffs Application.
4. In the B-I district, both office use less then 15,000 square feet and a convenience store less than 5,000 square feet are allowed by right. A special permit is required for both a gasoline station or self-service gasoline station (see Table of Use Regulations, WZO Sections 5.1(46a) and (46b)), and a convenience store with hours in excess of 7:00 a.m. to 10:00 p.m. Plaintiffs Application consolidated its requests for the two necessary special permits.
5. Plaintiff has entered into an agreement to purchase the Project Site, which includes the former Woburn Registry of Motor Vehicles building. That building is approximately 13,790 gross square feet and will contain the operations, wholesale, dispatching, and security office functions of A.L. Prime Energy. Approximately eighteen A. L. Prime employees would be working at the renovated building. It is expected that two employees of the security department will be located in the building twenty-four hours a day, seven days a week. The office use is allowed by right and Plaintiffs Application does not seek relief with respect to the renovation of the Registry Building on the Project Site.
6. The convenience store proposed for the Project Site will contain approximately 1,192 gross square feet and will not include a fast food component. There are four gas-pump islands proposed at the Project Site.
7. Other uses in the zoning district that immediately surround the subject property include two hotels and office and warehouse uses. There are also a McDonalds, a factory, a gas station, and a restaurant, all of which operate twenty-four hours a day.
8. The Plaintiff submitted, both to the Council and at trial), a comprehensive traffic study, entitled Traffic Impact and Access Study dated October 1, 2007 prepared by Greenman-Pedersen Inc. (GPI). After the study was presented to the Council, the Woburn Planning Board requested that a peer review be completed by the Citys Traffic Consultant, Vannasse Hangen Brustlin (VHB). [Note 1]
9. On November 1, 2007, VHB provided its initial comments to the Planning Board and GPI. On December 11, 2007, VHB submitted its final comments and concluded that The application has sufficiently addressed VHBs other traffic engineering review comments to date. No further traffic review is required at this time. These final comments were submitted to the Planning Board for review.
10. After reviewing Plaintiffs Application, pursuant to its analysis of the Project and its impact on the community, the Planning Board voted unanimously to forward a favorable recommendation to the City Council subject to the following conditions:
a. that the mitigation identified in the report dated October 1, 2007 and further updated by the memorandum dated November 20, 2007 both prepared by GPI shall be required as part of the approval of this Special Permit;
b. that the petitioner shall evaluate the advance signal head visibility (vertical and horizontal) for vehicles on the Hill Street approach, with a commitment to fix if found deficient; and shall review the yellow and all-red clearance times to ensure that they are appropriate both as part of the upgrade of the Hill Street/Montvale Ave. signal; and
c. t//hat the proposal shall be limited to a building of a ground floor with a convenience store not to exceed 1,200 S.F of Gross Floor Area and 1,000 S.F. of Net Floor Area and the remainder of the first floor shall be a two car garage; the building shall be limited to not more than 5 floors above the ground floor with the total square footage of the building excluding the convenience store shall be less than 13,800 S.F. of Gross Floor Area and the office area shall not exceed 10,850 S.F. of Net Floor Area
11. On December 18, 2007, after reviewing the site plan, development impact statement, drainage report, traffic study, mitigation, and VHBs peer review, the City Engineer stated in a memo to the City Council that the applicant has addressed all issues noted in our prior memoranda. The City Engineers memorandum included discussion of the ways in which Plaintiff presented evidence of adequate capacity of water, sewerage and drainage facilities, satisfactory provision of refuse collection and disposal, adequate exterior lighting, open space and landscaping, and traffic, among other things.
12. A duly-noticed public hearing was held on November 27, 2007, continued to January 2, 2008, and further continued to January 22, 2008.
13. Prior to and during the public hearing before the City Council, Plaintiff submitted other materials as part of the record in addition to the traffic reports mentioned above. These reports included a Site Improvement Plan prepared by Ayoub Engineering Inc; a Development Impact Statement dated October 16, 2007, prepared by Ayoub Engineering Inc.; Stormwater Drainage Calculations dated October 17, 2007, prepared by Ayoub Engineering Inc.; Additional Accident Data; a Revised Site Improvement Plan prepared by Ayoub Engineering Inc.; a Truck Turning Path plan prepared by Ayoub Engineering Inc.; Revised Trip Generation and Build Networks; Capacity Analysis Worksheets; and a Sidewalk Plan and Offsite Improvement Plan prepared by Ayoub Engineering Inc.
14. On January 28, 2008, the Woburn City Council issued a decision denying Plaintiffs Application for the following stated reasons:
a. This project will generate an excessive amount of vehicle trips in and out of the site that will cause backups on Hill Street and even more concerning, on Montvale Avenue. The current infrastructure on Montvale Avenue is already beyond capacity. The trip generation for the proposed uses of individual sale of gas, convenience store and a five story corporate office building will worsen an already bad situation.
b. The petitioner does not comply with Section 11.5.3 of the [WZO] as the multiple uses proposed on the property as a whole will constitute adverse impacts on traffic, noise, odor and safety. The petition does not comply with Section 1 Purpose and Application of the [WZO], Line 1.1 Purpose: Line 1 To lessen congestion in the street as there will be additional congestion between increased deliveries, customers and employees because the nature of the uses will certainly cause increased back-ups on Hill Street and Montvale Avenue.
c. That the petition does not comply with Section 1 Purpose and Application of the [WZO], Line 1.1 Purpose: Line 5 To prevent overcrowding of land as there will be deliveries, vehicles coming and going and the roadway is already overburdened and cannot handle additional traffic.
d. The petition does not comply with Section 11 Special Permits and Variances of the [WZO], Line 11.5.1 Satisfactory ingress and egress as this proposal is located on a street that requires access to Montvale Avenue, which is already over capacity. Additional traffic to Hill Street and Montvale Avenue is unacceptable and felt to be unsafe by the City Council.
15. Plaintiff met all other criteria of the WZO and that the only matter at issue at trial was the question of traffic impact.
16. The proposed improvements to the Project Site would be serviced and accessed by three separate driveways, all off Hill Street, one of which would be an existing driveway which also serves a hotel and two driveways of which would be located on the lower area of the Project Site.
17. Hill Street is a dead end street and is approximately a quarter of a mile long. It is the only means of access to, and serves the following uses:
a. a 24-hour factory, identified as the Kraft facility,
b. a Comfort Inn Hotel, and
c. a commuter parking lot associated with an MBTA bus stop.
18. Hill Street also serves as the sole means of exit for all traffic utilizing a 24-hour McDonalds. The McDonalds curb cut on Hill Street also serves as one of two entry ways into the McDonalds site.
19. By way of mitigation, Plaintiff proposed roadway and other off-site improvements at the Project Site, on Hill Street, and at the intersection of Hill Street and Montvale Avenue. Specifically, Plaintiff proposed:
a. providing an easement along the property line of the Project Site, starting just west of the western driveway and going up to the east-northeast corner of the site to reset all of the curbing in order to push it further back;
b. installing an impressed asphalt crosswalk from the Project Site to a new handicap ramp in the sidewalk on the opposite side of Hill Street to provide pedestrian access from the commuter lot to the Project Site;
c. installing impressed asphalt median as a divider to separate the traffic heading north on Hill Street from the traffic heading south on Hill Street into the Project Site and other businesses on Hill Street;
d. constructing a new sidewalk along Hill Street from Montvale Avenue to the Project Site;
e. constructing a sight triangle to improve the safety of people exiting the Project Site from the driveways of the gas station area;
f. installing roadway improvements for the Hill Street approach to the Project Site, including an exclusive right-turn lane, crosswalk addition, and center islands to define the two lanes approaching Montvale Avenue at the Hill Street intersection. The proposed mitigation involving the addition of an exclusive right-turn-only lane, as well as the widening of the roadway is dependent upon approval for those improvements by the Commonwealth of Massachusetts.
20. Plantings and other possible obstructions to sight lines will be excluded from the Project Site.
Findings Regarding Traffic Generally
21. GPIs traffic study focused primarily on the impacts during the peak morning and evening peak hours, and did not contain any analysis of traffic impact during other times of the day. In analyzing the projected traffic volumes associated with various proposed uses, GPIs report separated out the proposed by-right office use, and then combined the convenient store and gas station uses as one use, and did not break down projected volumes for the separate self-service gas station or for a separate convenient store. GPI assumed a worst-case traffic scenario, allowing for best-case mitigation scenarios. GPIs traffic report did not compare any specific self-service gas stations with convenience stores in the general Woburn or greater Boston area.
22. With respect to the projected traffic volume generated by the Project as it relates to Hill Street, most of the traffic would be new vehicle trips entering and exiting Hill Street, although there is the potential for some pass-by trips by people going in and out of the other uses which derive their access from Hill Street. Plaintiffs Project is expected to generate 1,486 weekday daily vehicle trips.
23. Of the 1,486 weekday daily vehicle trips associated with the proposed uses on the Project Site, the vast majority (1,302) result from the convenience store/gas station uses, with only 184 projected weekday daily trips associated with the by-right office use.
24. The trips associated with the convenience store and/or gas station uses are all trips in which the vehicles are expected to go in and out within a short time frame.
25. The expected vehicle trips associated with the convenience store and gas station use generate vehicles going in and out at essentially the same time at all hours of the day, unlike the office space use which has a more traditional morning entrance and afternoon exit pattern.
26. The distance from the stop line on Hill Street at the Montvale Avenue/Hill Street intersection to the curb cut for the McDonalds property is approximately 75 to 80 feet. This distance allows for a queue of three vehicles, based on the average length of a car and a reasonable space between cars, at 25 feet per vehicle. When more than three to four vehicles are queued on Hill Street facing the lights on Montvale Avenue, the curb cut to McDonalds for exiting traffic is blocked or adversely affected.
27. GPIs traffic study did not take into account the intersection of Montvale Avenue and Washington Street. The City did not ask Plaintiff to broaden its traffic study to include that intersection.
28. Based on a 2012 no-build scenario, GPIs traffic report assigned a level of service C to the Montvale Avenue/Hill Street intersection during both the morning and the evening peak hours.
29. The Montvale Avenue/Hill Street intersection has an accident crash rate significantly higher than both the statewide average and the MassHighway district-wide average.
Findings Regarding the Traffic Impact of the Project, without Mitigation [Note 2]
30. Assuming that Plaintiffs Project is built and fully operational and no mitigation, the average queuing on Hill Street during the morning peak hour would be 63 feet. [Note 3] At its worst, the projected queuing during the morning peak hour would be 83 feet, occurring approximately 5% of the time. The queuing analysis did not factor in the length of any trucks or vehicles beyond the average length of a car, meaning that delivery trucks, vans, trash removal trucks, or trucks associated with the Kraft factory use would tend to worsen the queuing beyond the average projections.
31. The average queuing on Montvale Avenue during the morning peak hour would be 135 feet. At its worst, the projected queuing during the morning peak hour would be 200 feet, occurring approximately 5% of the time.
32. Assuming that Plaintiffs Project is built and fully operational and no mitigating construction has been completed, the level of service for the Montvale Avenue/Hill Street intersection during the morning peak hours will be a C and the level of service during the evening peak hours will be D.
Findings Regarding the Traffic Impact of Plaintiffs Project, with Mitigation
33. Assuming that Plaintiffs Project is built and fully operational and all of the proposed mitigating construction has been completed, the average queuing on Hill Street during the morning peak hour would be 37 feet. At its worst, the projected queuing would be 56 feet, occurring approximately 5% of the time. During the evening peak hour, the average queuing on Hill Street would be 61 feet. At its worst, it would be 83 feet, occurring approximately 5% of the time.
34. Assuming that Plaintiffs Project is built and fully operational and all of the proposed mitigating construction has been completed, the Montvale Avenue/Hill Street intersection will have a level of service C during both the morning and the evening peak hours. This level of service is identical to the level of service assigned to this intersection under the no-build scenario.
35. Based on the evidence that there will be no change in the level of service during peak hours, there likely will be no change in level of service between the hours of 11:00 p.m. and 7:00 a.m.
36. Of the 38 accidents in the study area of the three-year analysis period, 77 vehicles were involved. Of those, approximately 30 percent were traveling westbound on Montvale Avenue, 29 percent traveling eastbound on Montvale Avenue, 10 percent traveling southbound from the I-93 Southbound off-ramp, and 22 percent traveling northbound on Hill Street. On the Hill Street approach, 9 of the vehicles were involved in rear-end crashes and 8 vehicles were involved in angle or cross-movement crashes. Based on the accident data, 5 of the vehicles involved in an angle crash were traveling in a direction opposite to the vehicle it collided with and 2 of the vehicles involved were traveling in the same direction. The direction of one vehicle was not reported in the accident data.
37. Plaintiff proposes widening the existing single lane approach. The provision of a right-turn lane is expected to lessen the time and volume of traffic that wait at the signal and eliminate the need for right-turning traffic to try to sneak by left-turning traffic. The reduction in the time and volume of traffic that wait on this approach would result in a lower occurrence of rear-end collisions and the provision of two separate lanes would result in fewer side swipes on the same approach by vehicles trying to sneak by traffic stopped at the light.
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In accordance with the requirements of G. L. c. 40A, § 17, this court has conducted a de novo trial and made independent findings of fact without limiting itself to evidence introduced at the public hearings before the City Council or affording evidentiary weight to the Councils findings of fact. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 114 (1985). This court may only disturb the Councils decision if it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954). Further, inasmuch as no one has a right to a special permit, it is Plaintiffs burden to substantiate its claim that it is entitled to the special permit and that the City Councils denial was arbitrary and capricious, or based on a legally untenable ground. See Planning Bd. of Northborough v. Board of Appeals of Northborough, 356 Mass. 732 , 733 (1969); Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981 , 983 (1990).
The parties stipulated that the only adverse effect to be determined at trial was traffic.
The evidence at trial established that the intersection of Montvale Avenue and Hill Street is already heavily traveled, that it has a crash rate significantly higher than either the statewide or district-wide average, and that it presents traffic concerns.
The traffic study prepared by GPI also established that if the mitigation measures proposed by Plaintiff are implemented there will be no change in the level of service assigned to the Montvale Avenue/Hill Street intersection. Both the 2012 no-build and the 2012 build, with mitigation scenarios result in a level of service C for the intersection during both the morning and the evening peak hours. To the extent that there are traffic concerns at this intersection, those concerns exist now and Plaintiffs Project will not substantially change the traffic as it exists now.
With respect to the safety concern due to the of crash statistics at the Montvale Avenue/Hill Street intersection, the evidence established that the proposed mitigation of a right-turn lane in a widened road would improve the intersection by removing the primary causes of accidents.
Given that the evidence established that, with the mitigation measures proposed by Plaintiff, there will be no substantial change in traffic at the Montvale Avenue/Hill Street intersection, this court finds and rules that the City Councils decision denying the special permit was arbitrary and capricious. This court therefore remands this case to the City Council for the issuance of a special permit in accordance with Sections 5.1(46a), (46b), and (22a), within thirty days of todays date, subject, however, to the following conditions:
a. Plaintiff must provide an easement along the property line of the Project Site starting just west of the western driveway and going up to the east-northeast corner of the Project Site, reset all of the curbing, and push it further back,
b. Plaintiff must install an impressed asphalt crosswalk from the Project Site to a new handicap ramp in the sidewalk on the opposite side of Hill Street to provide pedestrian access from the commuter lot to the Project Site,
c. Plaintiff must install an impressed asphalt as a median divider to separate the traffic heading north on Hill Street from the traffic heading south on Hill Street into the Project Site and other businesses on Hill Street,
d. Plaintiff must construct a new sidewalk along Hill Street from Montvale Avenue to the Project Site,
e. Plaintiff must construct a sight triangle to improve the safety of people exiting the Project site from the driveways of the gas station area,
f. Plaintiff must secure approval for and complete roadway improvements for the Hill Street approach to the Project Site, including an exclusive right-turn lane and center islands to define the two lanes approaching Montvale Avenue at the Hill Street intersection.
The City Council shall within fourteen days thereafter file its decision after remand with the City Clerk.
Karyn F. Scheier
Chief Justice
Dated: March 14, 2011
A.L. PRIME ENERGY CONSULTANT, INC. d/b/a A.L. PRIME ENERGY v. CHARLES E. DOHERTY, RICHARD F. GATELY, JR., SCOTT D. GALVIN, JAMES J. DWYER, DARLENE MERCER-BRUEN, MICHAEL RAYMOND, RAYMOND B. DRAPEAU, PAUL J. DENARO, JOANNA GONSALVES, as they are the members of and constitute the CITY COUNCIL of the CITY OF WOBURN