HESS CORPORATION a/k/a AMERADA HESS CORPORATION v. THE ZONING BOARD OF APPEALS OF THE TOWN OF FRAMINGHAM and PHILIP R. OTTAVIANI, JR., DAVID NORTON, SUSAN S. CRAIGHEAD, STEVEN MELTZER, KARL THOBER, EDWARD (TED) COSGROVE, AND ROBERT SNIDER, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF FRAMINGHAM

On February 4, 2009, Amerada Hess Corporation (Hess) filed a complaint against the Zoning Board of Appeals of the Town of Framingham and its members (collectively, ZBA) pursuant to G. L. c. 40A, § 17 appealing a decision of the ZBA that denied an application by Hess to modify a special permit concerning the property located at 284 Hollis Street in Framingham (locus).

In 2005, the ZBA denied a similar application to modify a special permit, which the Plaintiff then appealed to this court for de novo review. [Note 1] On March 23, 2007, this court (Lombardi, J.) affirmed the decision of the ZBA, finding there was sufficient evidence to support the discretionary judgment of the Board that the project as proposed at the time did not meet the standards established by the Zoning By-Laws. (Land Court Case No. 05 MISC 312974).

A two day trial on the present case was held in the Land Court on June 23, 2010 and subsequently on June 25, 2010. A stenographer recorded and transcribed the proceedings. Three witnesses testified on behalf of Hess: Howard A. (Andy) Lautenbacher, Hess' northern permit manager; Lucien DiStefano, project manager for Bohler Engineering; and Gary M. McNaughton, a professional engineer and traffic operations engineer. As its sole witness, the ZBA called Thomas A. Stokes (Stokes), a civil engineer and a traffic operations engineer. During the trial, the parties marked fifteen exhibits for identification, thirteen of which were subsequently introduced into evidence. The parties also marked as chalks enlargements of three exhibits, one of which was also introduced into evidence. The sixteen exhibits and chalks are hereby incorporated into this decision for purposes of appeal. The parties were accorded the opportunity to make final submissions following the preparation of the trial transcript. On September 14, 2010, both parties filed Post Trial Briefs.

I find the following facts in the instant case are generally similar to the 2007 Decision (Lombardi, J.) dismissing the Plaintiff's prior claim:

1. Hess is a corporation organized under the laws of the State of Delaware and qualified to do business in Massachusetts.

2. The ZBA is a duly established board of appeals under G. L. c. 40A, § 12. At the commencement of the instant action, each member of the ZBA resided in Framingham. [Note 2]

3. Locus, which contains approximately 25,000 square feet, is situated in the Business zoning district (B zone) as established by the Framingham Zoning By-Law (By-Law) and abuts property in the General Residence G zoning district.

4. Hollis Street, on which locus has frontage, is also known as Route 126.

5. For many years, locus has been used as a retail gasoline station. [Note 3] Three pump islands, consisting of five fuel dispensers each with two fueling positions, are currently used at locus. Those islands stand on locus at an approximate 45º angle to Hollis Street. A cashier's kiosk is located on the middle pump island. Locus also is improved with a single-story, cinder block building containing rest rooms.

6. Two unsignalized driveways, referred to herein as the north entrance and the south entrance, provide access to locus from Hollis Street. The width of each entrance is approximately forty feet. Charles Street intersects Hollis Street directly opposite from locus. The south entrance lies south of the Charles Street intersection, and the north entrance lies north of that intersection.

7. The section of Hollis Street in front of locus is approximately thirty-five feet in width, improved with two travel lanes and one parking lane on the west side of Hollis Street. There is no crosswalk across Hollis Street in the immediate vicinity of locus. The frontage of locus along Hollis Street is improved with a sidewalk and curbing.

8. The signalized intersection of Hollis Street with Waushakum Street, Pine Street, and Avon Street is located approximately 150 feet north of the north entrance.

9. A convenience store is located across the street from locus on the corner of Charles Street.

10. In February 2001, Hess acquired title to locus as part of its purchase of fifty-three gasoline stations from Gibbs Oil Company. At present, the gasoline station on locus operates under the name Gas-N-Go.

11. The business strategy of Hess is to sell gasoline at a lower price than its major brand competitors in order to realize a greater volume of sales.

I find the following facts are unique to the instant action:

12. The traffic impact study prepared in June 2008 by McMahon Associates for Hess (2008 traffic study) determined that the highest volume of on-street traffic and use of locus is during the afternoon at some time between 4:00 p.m. and 6:00 p.m. McMahon Associates conducted the manual turning movement counts for the 2008 traffic study on April 2, 2008 and May 20, 2008. [Note 4]

13. Under current conditions, the 2008 traffic study found 1,134 motor vehicles on Hollis Street (434 southbound and 700 northbound) during afternoon peak hour, 28 of which turned onto locus.

14. Under current conditions, traffic on occasion queues in the northbound lane of Hollis Street from the Waushakum intersection beyond the two entrances to locus.

15. Hess proposes to make various improvements to locus. The improvements (collectively, project) include (a) the reconfiguration of the gasoline pumping islands to provide for eight fueling positions perpendicular to the curb line (as opposed to the current ten positions at a 45 degree angle to the curb line), (b) the elimination of the cashier's kiosk, (c) the replacement of the cinder block building with the construction of a 1,200 square foot convenience store in the southeast corner of locus, (d) the designation of defined parking spaces in front of the convenience store and along the easterly boundary of locus, (e) the reduction of the width of the north and south entrances to thirty feet to comply with the requirement of Section IV.B.3.d. of the By-Law, [Note 5] (f) the construction of a concrete sidewalk to replace the existing one along Hollis Street, (g) the addition of a new five-foot wide sidewalk between the street sidewalk and the convenience store running along the south side of the property, (h) the marking of the pavement at the entrances with various traffic and pedestrian safety controls, and (i) the replacement of the existing fences with a white vinyl fence around the easterly and southerly boundaries of locus. [Note 6]

16. Approximately 600 to 650 square feet of the interior space of the convenience store would be used for the sale of snack foods and other products typically sold in such establishments. The remainder of the 1,200 square feet would be devoted to ancillary uses such as storage and utilities.

17. As designed, access to locus would entail two-way traffic to and from both entrances. Between the south end of the gas pump island and the proposed parking spaces in front of the convenience store, motorists would utilize an approximate twenty-eight foot wide travel lane. Motor vehicles parked in front of the convenience store would back out into a portion of the twenty-eight foot wide travel lane.

18. Other than at the north and south entrances, the project includes no markings to direct the flow of traffic within locus.

19. The new pumps to be installed by Hess will permit customers to pay at the pump with credit cards. Customers paying by cash will walk from the pump islands across the twenty-eight foot travel lane to the convenience store and then return to their motor vehicles.

20. Upon the completion of the project, Hess expects fuel deliveries to underground storage tanks at locus two to three times per week. In addition, the convenience store would have a weekly tractor-trailer delivery for certain goods. Other vendors using smaller vehicles or vans would make deliveries of milk, soda, snacks, and similar products on an as-needed basis.

21. The project does not provide for a designated area for delivery trucks. [Note 7] Persons making deliveries to the convenience store will utilize the striped parking spaces in front of or adjacent to the convenience store.

22. Based upon the location of the underground storage tanks on locus, trucks making gasoline deliveries will not block any of the designated parking spaces, although it may block portions of the travel lanes.

23. Operators of Hess stations at other locations receive delivery of fuel, whenever possible, during off-peak hours from one or more independent contractors. If a Hess station runs out of gasoline, a delivery may be made at any time of day.

24. Hess projects that the addition of the convenience store will increase the number of customers and an increase in sales. Approximately twenty percent of customers are expected to use the convenience store without any purchase of gasoline. Hess anticipates that some customers will arrive at the convenience store by foot.

25. The trip generation manual utilized in the 2008 study allows the volume of cars accessing the site to be calculated based on the number of pumps at the proposed site or the square footage of the adjacent convenience store. [Note 8] Although the rates based on square footage would have produced a net higher volume of vehicles, the traffic study utilized the trip generation rates based on the number of pumps, which resulted in a lower net increase in vehicles accessing the site. [Note 9]

26. With the construction of the project, the 2008 traffic study predicts the volume of cars entering the station will increase from 28 to 40 during weekday morning peak hour and from 38 to 53 during weekday afternoon peak hour. The study further predicts that the volume of cars leaving the station will increase from 24 to 40 during weekday morning peak hour, and from 43 to 54 during afternoon peak hour. [Note 10] Following the development of the project and by 2013, the 2008 traffic study projects that the level of service exiting locus during the peak morning hour would change from the current "C" level to a "D" level and during the peak afternoon hour would change from the current "C" level to an "F" level. [Note 11]

27. Hess filed an application (Exhibit 2) with the Framingham Building Commissioner (Commissioner) seeking a permit to construct the project. Citing Section III.C.5.c.(3) of the By-Law, the Commissioner denied the application on April 3, 2008.

28. Nine categories of uses are listed in Section III.C.5.c. that "require a special permit from the [ZBA] for uses under 8,000 square feet of gross floor area" in a B zone. The third category is "[r]etail gasoline and oil stations . . . subject to special regulations Section IV.D., herein."

29. In a B zone, a retail store containing less than 8,000 square feet of gross floor area is a permitted use according to Section III.C.5.b.(2). [Note 12]

30. Section IV.D. requires gasoline service stations to be designed according to specific standards for the following items: location and width of driveways; dimensional and landscaping regulations; and curbing, surfacing, and lighting. Under the heading of "Access and Circulation," Section IV.D.4 specifies (in pertinent part) as follows:

"Gasoline Service Stations (with or without an allowed accessory use) shall have adequate access, circulation, and vehicle storage for queues, which will not conflict with other uses. . . . Access and circulation for a gasoline service station (with or without an allowed accessory use) must be clearly defined and separated from off-street parking areas serving other uses, so that there will not be a circulation conflict."

31. In an application (Tr. Ex. 2) for a hearing before the ZBA filed with the Framingham Town Clerk (town clerk) on April 4, 2008, Hess requested relief from Zoning By-Laws Section III, 5. C. (3), as stated in the Building Permit denial.

32. On May 12, 2008, the ZBA held a public hearing on the Hess application. Following further consideration at meetings held on June 10, 2008 and July 22, 2008, the ZBA denied the Hess application on September 9, 2008, by a vote of two in favor and one opposed.

33. The ZBA filed its decision with the town clerk (ZBA decision) on January 22, 2009. Section 7.7 of the ZBA decision states:

"After deliberation, the [ZBA] was unable to make the findings as required by M.G.L. c. 40A, § 9 and Sections IV.D. and V.E.3 of the Framingham zoning bylaws; therefore the requested SPECIAL PERMIT is DENIED. While some Board members felt that the proposal would meet the requirements of the zoning bylaws and would be an improvement to the area, one other member did not. He cited reasons that have been noted in past applications including adverse traffic impacts, internal circulation conflicts between the retail and the gasoline service components of the project, pedestrian access and safety, parking issues and failure to comply with zoning bylaws. In particular, the project is not an appropriate one for the specific site (Section V.E.3.a.1) and the proposed use as developed would create a hazard to abutters, vehicles and pedestrians (Section V.E.3.a.3). These impacts do not warrant the issuance of a special permit and the Applicant has failed to show that the requirements of Sections IV.D. and V.E.3 have been met. Lacking a unanimous vote the application is DENIED."

34. Under Section V.E.3., the ZBA shall not grant a special permit "unless it finds that in its judgment all of the following conditions are met:

(1) The specific site is an appropriate one for such a use or structure.

(2) Adequate and appropriate facilities will be provided for the proper operation of the proposed use, including adequate off-street parking. . . .

(3) The use or structure as developed will not create a hazard to abutters, vehicles, or pedestrians.

(4) The use or structure is consistent with the Intent of the district in which the use is proposed, and with the Purpose and Intent of this By-Law.

(5) All municipal services necessary to meet the needs of the proposed use must be adequate and sufficient."

* * * * *

G.L. c 40A § 17 provides in relevant part that "[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to G.L. c 40A § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd of Appeal of Boston, 330 Mass. 676 , 679 (1953). The court is solely concerned with "the validity but not the wisdom of the board's action." Wolfman v. Bd. Of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). The court may overturn the board's decision only if the decision is "based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003).

In bringing the instant appeal, Hess contends that the ZBA decision was arbitrary and capricious and exceeded the board's authority. Further, Hess contends that the ZBA decision was faulty. The ZBA decision found that the addition of the convenience store would bring "additional traffic." Hess insists that any additional traffic to locus, however, would result from the addition of two fueling positions, not the convenience store. According to the 2005 traffic study, the volume of traffic will be greater with twelve fueling positions than with the addition of the convenience store. While conceding there will be more traffic generated by the project, Hess characterizes the increase as de minimus.

Hess ignores the fact that the project, as designed, is not the addition of the convenience store to the existing ten fueling positions. Rather, the project calls for the construction of the convenience store, as well as adding two fueling positions. Neither the 2005 traffic study nor any witness called by Hess addressed the traffic impact of the convenience store in addition to two new fueling positions. It is a reasonable inference that each component of the project, i.e. the additional fueling positions and the convenience store, will generate some traffic. In order to appreciate the full extent of the traffic impact resulting from the project, it is appropriate to consider the sum of the components, not just the impact of one aspect of the project.

Hess also argues that the ZBA was arbitrary and capricious in finding that there would be conflict between traffic and pedestrians accessing the convenience store. According to Hess, the ZBA "merely speculated about an increase in traffic attributable to the convenience store." Hess insists the ZBA "ignored the existence of foot traffic already present in this urbanized area and the fact that there already exists pedestrian traffic crossing Hollis Street to gain access to the convenience store across the street." Furthermore, Hess claims that its convenience store could reduce pedestrian crossings on Hollis Street.

Under the By-Law, the ZBA must make certain findings before it may grant a special permit. In the case of the Hess application, the ZBA had to find that, inter alia, (a) locus is an appropriate site for the project, (b) adequate and appropriate facilities will be provided for the proper operation of the project, (c) the project will not create a hazard to abutters, vehicles, or pedestrians, and (d) access and circulation must be clearly defined and separated from off-street parking areas serving other uses to prevent a circulation conflict. See Section IV.D., Section V.E.3.

The ZBA offered the testimony of Stokes, a licensed professional engineer who specializes in civil and traffic engineering. Stokes confirmed the numbers contained in the 2005 traffic study. Those numbers indicated an approximate doubling of the traffic volumes on and off locus during morning and evening peak hours.

From his observations at locus, Stokes testified to a traffic queue that extended southerly from the signalized intersection at Waushakum Street in front of locus during the afternoon peak hour. During that period, Stokes observed the queue in front of the north entrance approximately eighty percent of the time and in front of the south entrance approximately forty percentage of the time. Traffic queued in front of locus will result in more vehicles queued on locus. According to Stokes, more vehicles delayed in entering Hollis Street will result in less maneuverability on locus. Stokes opined that queuing on locus will create a more unsafe condition. With the three pump islands positioned at an angle to Hollis Street, Stokes claims that a motorist wishing to access the middle island will need to perform more turning maneuvers. Stokes also offered his opinion that most patrons entering locus from the south entrance would attempt to use the southernmost pump island where there is limited space for queuing.

Stokes considered the design of the project deficient due to the increased interaction between pedestrians and the increased volume of traffic on locus. Additionally, the evidence reveals that motor vehicles parked in front of the convenience store will have to back into the unmarked thirty-seven foot wide travel lane connecting with the south entrance.

The witnesses offered by Hess present a contrary view of the evidence and the impact the project would have on locus and in the surrounding neighborhood. However, I find the testimony of Stokes to be more credible. Consequently, I find that Stokes' testimony provides a reasonable basis to conclude that the ZBA decision is valid.

The ZBA found that the project would have a negative impact on traffic in the vicinity of locus. While the 2005 traffic study concluded that the project will have a "negligible impact" on traffic in the vicinity of locus, the underlying facts in the study show that traffic will actually increase on Hollis Street as a result of the project. In the final analysis, "[i]t is the board's evaluation of the seriousness of a problem, not the judge's, which is controlling." Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 , 821 (1973).

There is sufficient evidence to support the discretionary judgment of the ZBA in this case that the project did not meet the standards established by Section IV.D. and Section V.E.3. Thus, the ZBA decision denying the Hess application was not based on a legally untenable, arbitrary, or capricious ground and must be upheld.

Judgment shall enter affirming the ZBA decision and dismissing the complaint.

Charles W. Trombly, Jr.

Justice

Dated: March 2, 2011