Andrew C. Triantafillou ("Triantafillou") and Arline R. Kunz ("Kunz") (collectively referred to as "Plaintiffs") commenced the above-entitled actions on January 14 and January 19, 1988, respectively, seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Board of Appeals of the Town of Middleton ("Board"), dated December 31, 1987, denying Triantafillou's application for a special permit to construct and operate a Dunkin' Donuts restaurant on an undeveloped parcel of land ("locus") owned by Kunz and located on Route 114, South Main Street, Middleton, Massachusetts. Thereafter, on March 8, 1988, the Court allowed the Plaintiffs' motion for consolidation of these actions.
A trial was held at the Land Court on September 15, 1988 at which a stenographer was appointed to record and transcribe the testimony. Prior to trial, counsel stipulated to certain facts which are set forth below in the Court's findings. Twelve exhibits were introduced into evidence, one chalk was presented to assist the Court and four witnesses testified. All exhibits and chalks have been incorporated herein for the purpose of any appeal. Immediately following the trial, the Court viewed the locus in the presence of counsel.
On all of the evidence, the Court finds and rules as follows:
1. Kunz acquired title to the locus by deed (Exhibit No. 3) from John O. Kunz dated April 14, 1986 and recorded at Book 8206, Page 219 in the Essex South District Registry of Deeds ("Registry").
2. The locus is shown as Lot 2, containing a total area of approximately 34,740 square feet, on a plan (Exhibit No. 2) entitled "Plan of Land located in Middleton, MA.", dated December 21, 1985 and recorded at Plan Book 205, Plan 96 in the Registry. Such land fronts on Route 114, a heavily travelled, two-lane state highway, and is situated in the "M-1 Light Industrial Zoning District", as described in section 4.6 of the Middleton Zoning By-laws ("By-laws"). A Burger King restaurant is scheduled to be constructed across the street from the locus.
3. Traffic on Route 114 is presently at the "E" level of service, which is characterized by substantial delays and restrictions. During weekdays, peak hours of traffic on Route 114 occur between 7:15 A.M. and 8:15 A.M. and, more particularly, between 4:45 P.M. and 5:45 P.M.
4. Kunz executed a written Purchase and Sale Agreement with Triantafillou for the purchase of the locus. Thereafter, Triantafillou petitioned the Board for site plan approval, pursuant to section 8.1 of the By-laws, and for a special permit, pursuant to section 4.6.2 (A) of the By-laws, to construct and operate a Dunkin' Donuts restaurant on the locus. Such petition was properly accompanied by a site plan entitled "Site Development Plan of Land located in Middleton, Mass.", dated August 31, 1987 (Exhibit No. 5).
5. The proposed Dunkin' Donuts will conduct a "breakfast-oriented type of business" with peak business hours being between 6:00 A.M. and 10:00 A.M. Further, between 60% and 70% of such morning business will be derived from "off-highway" customers, rather than customers making special trips to the restaurant. Moreover, unlike Burger King, which has midday as its peak period of business, Dunkin' Donuts will offer only a limited lunch menu, and accordingly, will cater to only a small segment of such lunch hour crowd.
6. The stated purposes of the By-laws are essentially as follows:
. . . to promote the health, safety, morals, convenience and general welfare of the inhabitants of Middleton and to lessen the danger of fire and congestion. . . . See By-laws, Section 1.
7. Section 4.6.2(A) of the By-laws provides in relevant part that, within an "M-1 Light Industrial Zoning District", the Board may allow the following uses by special permit:
Any other lawful business or manufacturing enterprise, provided before any building permit may be granted, the [Board] shall determine that such activities will not be offensive, injurious, or noxious because of sewerage, refuse, noise, vibration, smoke, fumes, dust, odors, danger of fire or explosion, or other characteristics detrimental to a dominantly residential town or which may tend to reduce property values in the same or adjoining districts, in accordance with the standards set forth in Section 5.8.5. . . .
The standards which the Board may consider under section 5.8.5 of the By-laws are hazard or detrimental effect to adjacent property, odor, gases, dust, smoke, heat, glare, exterior lighting, noise, vibration, radiation, waste disposal, water service, storage and screening, none of which will be violated by the construction and operation of the Dunkin' Donuts facility.
8. Following two public hearings on Triantafillou's petition, the Board conditionally approved the site plan, but denied the petition for a special permit due to its "significant reservations about the potentially hazardous traffic situation" at the site, and in accordance with applicable law as follows:
a. The Middleton Zoning By-Law in Section 1. Purpose and Authority states: "The purposes of the Zoning By-Law are to promote the health, safety, morals, convenience and general welfare of the inhabitants of Middleton, to lessen the danger from fire and congestion...." The decision of the Board of Appeals is that the proposed Dunkin Donuts would detract from the safety and general welfare and would increase the danger from traffic congestion.
b. Section 4.6.2.A of the Middleton Zoning By-Law states that allowed by Special Permit in an M-1 Light Industrial district are "Any other Lawful business or manufacturing enterprise, provided before any building permit may be granted, the Board of Appeals shall determine that such activities will not be offensive, injurious....or other characteristics detrimental to a dominantly residential town." It is the finding of the Board of Appeals that the nature of the traffic generated by this type of business will create an unsafe and injurious condition and thus the Special Permit was denied.
c. Section 11.4.2 of the Middleton Zoning By-Laws states: "The Board of Appeals shall have the following powers:...11.4.2 Special Permits: To hear and decide applications for Special Permits for exceptions as provided in this By-Law, subject to any general or specific rules therein contained and subject to any appropriate conditions or safeguards imposed by the Board." It is the finding of the Board that appropriate safeguards cannot be imposed due to the circumstances of this business and the traffic flow during the A.M. peak rush hour on South Main Street.
d. Section 9. Special Permits in Chapter 40A of the Massachusetts General Laws states: "Special Permits may be issued only for uses which are in harmony with the general purpose or intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use. It is the finding of the Board that the proposed Dunkin Donuts is an inappropriate use in the particular light industrial zone due to the traffic safety hazard for this business. The Board finds that the intent of the By-Laws in making this district light industrial rather than a "B" Business District was business to accept the lower traffic congestion inherent with light industry rather than high volume consumer business.
Pursuant to G.L. c. 40A, §17, any person aggrieved by a decision of a special permit granting authority may appeal to the Land Court. On such appeal, the Court hears the matter de novo, makes its own findings, and upholds the decision if it rests on legally tenable grounds and is not unreasonable, whimsical, arbitrary or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton; 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). The Court may not substitute its judgment for that of the Board, Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969); Subaru at 486-488, as its review is limited solely to the validity of the Board's action in granting or denying the permit. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). In the instant matter, I find and rule that inasmuch as "traffic" is not an express or implied standard to be considered by the Board under section 4.6.2(A), and insofar as the proposed Dunkin' Donuts facility will present no measurable increase to traffic on Route 114, the Board's decision to deny the special permit is legally untenable, unreasonable and arbitrary, and accordingly, must be annulled.
The Board's decision to deny Triantafillou's petition for a special permit was motivated by its concern for traffic congestion on Route 114 during morning and afternoon rush hours, and the possibility that such traffic would escalate as a result of the proposed Dunkin' Donuts. The Plaintiffs challenge the Board's decision on the ground that "traffic" is not specifically listed as a standard to be considered by the Board in its review of a special permit application brought under section 4.6.2(A) of the By-laws. While it is undisputed that the decision to grant or deny a special permit may not be left to the Board's unbridled discretion, MacGibbon at 638, and that the provisions of G.L. c. 40A, §9 and the local zoning by-laws, taken together, must provide adequate standards for the guidance of the Board in reaching its determination, such standards need not be so detailed that they eliminate entirely the Board's exercise of discretion. Id.; Turnpike Realty Co. v. Board of Appeals of Dedham, 362 Mass. 221 , 231 (1972); Slater v. Board of Appeals of Brookline, 350 Mass. 70 , 73 (1966). In the instant matter, section 4.6.2(A) of the By-laws requires the Board to determine the following prior to the granting of Triantafillou's special permit petition:
. . . that such activities will not be offensive, injurious, or noxious because of sewerage, refuse, noise, vibration, smoke, fumes, dust, odors, danger of fire or explosion, or other characteristics detrimental to a dominantly residential town . . . in accordance with the standards set forth in Section 5.8.5 [of the By-laws].
This section states with particularity those characteristics which govern the Board's grant or denial of a special permit for the proposed use. However, despite the fact that, as a known and recognized factor in reviewing special permits, "traffic per se" should be specifically addressed in the By-laws, section 4.6.2(A) is silent on the subject. In f act, even though the standards set forth for the Board's review of a special permit application need not be so detailed that they preclude any exercise of discretion by the Board, the factors expressly listed for such consideration under section 4.6.2(A) are of such a nature that "traffic" may not even be viewed by the Board in its discretion as an implied consideration. The Board thus seems to arbitrarily inject into its position criteria not found in its By-laws. Specifically, when read together, By-law sections 4.6.2(A) and 5.8.5 advance such considerations as sewerage, noise, smoke, fumes and odors. Clearly, a reasonable interpretation of these standards is that they pertain to other proposed "industrial/manufacturing uses" in the zoning district, rather than "commercial uses" like a Dunkin' Donuts, or obviously, a Burger King restaurant. None of the factors so listed bear even the slightest relationship to "traffic." Accordingly, as "traffic" is neither an express or implied consideration for the Board under 4.6.2(A) of the By-laws, the Board's decision to deny Triantafillou's application due to the potentially hazardous traffic situation on Route 114 constituted an arbitrary exercise of its discretion and was based on legally untenable grounds.
In the alternative, even assuming arguendo that "traffic" is a factor to be reviewed by the Board under section 4.6.2(A), the evidence introduced at trial precludes a finding that the traffic situation on Route 114 will worsen once the proposed Dunkin' Donuts commences operation.
In reviewing a Board's decision with respect to a speci al permit application, the Court may not substitute its judgment for that of the Board. Garvey at 856; Caruso v. Pastan, 1 Mass. App. Ct. 28 , 29-30 (1973); Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 120 (1955). However, for a decision of the Board to be upheld on appeal, the Court must ascertain that such Board acted fairly and reasonably on all of the evidence presented to it. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973); MacGibbon at 638-639. Specifically, the function of the trial judge on appeal is to determine whether the Board's reasons had a substantial basis in fact or were mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning by-laws. Vazza at 312. In the instant matter, the Plaintiffs presented competent evidence that the proposed Dunkin' Donuts would have no significant, adverse impact on traffic along Route 114. The Defendant Board, however, offered no independent evidence to refute the Plaintiffs' position. In fact, the evidence which the Board did introduce at trial indicates that it arbitrarily denied Triantafillou's petition due to traffic, said factor having been brought about, at least in part, by its own earlier grant of a special permit to Burger King. See SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 , 103 (1984). Therefore, on all of the evidence before the Court, the Board's decision lacks any rational, factual basis, and further, is inconsistent with the standards specifically set forth for such review by the Board under section 4.6.2(A) of the By-laws. See S. Volpe at 360; Vazza at 312. In so holding, however, I do not foreclose the possibility that the Board's instant concerns may be ameliorated or resolved by the implementation of controls by appropriate authority.
In consideration of the foregoing, I rule in summary that in voting to deny Triantafillou's application for a special permit to construct and operate a Dunkin' Donuts restaurant on Route 114, the Middleton Board of Appeals exceeded its authority and accordingly, the decision of the Board must be and hereby is annulled. I therefore rule that a special permit be issued authorizing the construction of a facility/restaurant in accordance with the proposal presented to the Court in this matter.