MISC 127462

April 18, 1989

Middlesex, ss.



On April 1, 1988, Haverty Builders, Inc. ("Haverty") commenced the above-entitled action seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the City of Woburn Planning Board ("Board") denying Site Plan Approval with respect to a certain office building ("proposed development" or "project") proposed for construction at No. 5 and No. 7 Garden Terrace in Woburn, Massachusetts ("locus") and also seeking a determination, pursuant to G.L. c. 240, §14A, that Site Plan Approval should be granted by the Board with only minor, reasonable modifications to Site Plan features permitted.

A trial was held at the Land Court on December 7, 1988 at which all testimony was tape-recorded and transcribed. Five witnesses testified, two chalks were presented and fourteen exhibits were introduced into evidence.

All of the exhibits and chalks are incorporated herein for the purpose of any appeal. The parties have submitted a "Stipulation of Facts", certain of which facts have been included in the findings set forth below.

On all of the evidence, I find as follows:

1. Haverty is the record owner of the locus, having acquired title to No. 7 Garden Terrace by deed from William A. Nadeau, Jr. and Maureen M. Nadeau, dated November 22, 1988 (Exhibit No. 1) and title to No. 5 Garden Terrace by deed from W. Bradford Ingalls, dated December 5, 1988 (Exhibit No. 2).

2. The locus is located on Garden Terrace, a 20 to 25 foot wide paved, public way/dead end, situated within a 50 foot wide lay out. Garden Terrace services approximately ten residences along its entire length. As shown on a plan entitled "Site Plan of Land on Garden Terrace in Woburn, Mass." ("Site Plan") (Exhibit No. 6), dated October 22 , 1987, revised on November 25, 1987, the locus lies on the westerly side of Garden Terrace, southwest of the Mishawum Road intersection and northeast of the Route 128 off-ramp.

3. As set forth in Section 5.1.30 of the Woburn Zoning Ordinance ("Ordinance") (Exhibit No. 3), the locus is located in an O-P/Office Park zoning district where business, professional and general offices are allowed as a matter of right.

4. Pursuant to Section 6.1 of the Ordinance, the minimum permitted lot size in an O-P/Office Park zoning district is 40,000 square feet and the minimum permitted frontage therein is 125 feet.

5. The locus contains a total lot area of 60,516 square feet, with 140 feet of frontage on Garden Terrace. Haverty proposes to construct thereupon a seven (7) story office building, containing a total floor area of 87,500 square feet and containing 218 on-site parking spaces.

6. Section 12.2.4 of the Ordinance provides that Site Plan Review shall be required for the following project:

Any construction project which involves the construction of . . . [15,000] or more square feet gross floor area, or an increase in gross floor area of 5,000 square feet or more, or any increase in gross floor area individually or collectively, which would cause a building with gross floor area of less than [15,000] square feet to exceed [15,000] square feet of gross floor area, or results in the creation of 100 or more parking spaces.

7. Section 12.3.1 of the Ordinance states that:

In cases where Site Plan Review is required by this section, but no Special Permit is required under Section 5 of this ordinance, Site Plan Review shall constitute a Special Permit for which the Planning Board shall be the Special Permit granting authority.

8. Pursuant to Section of the Ordinance, in the course of reviewing a project which requires Site Plan Review under Section 12, but for which no Special Permit is required under Section 5, the Planning Board may:

. . . issue its approval subject to the condition that the developer provide safeguards, limitations and/or improvements which may include, without limitation, the following: improvements in existing water and sewerage facilities; improvements in existing intersections or streets, including storm drainage, reconstruction of ways and/or streets, traffic controls and pedestrian walkways.

9. On October 27, 1987, Haverty filed an application (Exhibit No. 5) with the Board for a "Special Permit for Site Plan Review", in accordance with the applicable portions of Sections 5 and 12 of the Ordinance, submitting therewith the subject Site Plan.

10. With the assent of Haverty, a public hearing on its application was conducted by the Board on January 26, 1988. The Board took no action with respect to the application at this time.

11. The Board voted to deny Haverty's application for a "Special Permit for Site Plan Review" on March 8, 1988. In its decision (Exhibit No. 8), the Board set forth the following reasons for its denial:

1. The proposed office building would create a safety hazard for vehicular and pedestrian travel within the surrounding locus. Especially for pedestrian and vehicular travellers entering and exiting Garden Terrace onto Mishawum Road.

2. The convenience and safety of vehicular and pedestrian movement in relation to adjacent streets (Garden Terrace and Mishawum Road) has not been adequately addressed on the proposed Site Plans.

3. The Site Plans do not indicate adequate engineering data relative to the levels of parking within the proposed office building. Therefore, the plans do not indicate proper representation of the number of required parking spaces relative to the size and use of the structure. Also due to the inadequacy of the plans, the Board is unable to determine that the convenient and safe movement of pedestrian and motor vehicle travellers is provided for within the parking levels of the structure.

4. The Site Plans do not properly represent the curb layout of Mishawum Road, relative to the proposed improvements of Garden Terrace and Mishawum Road.

5. The Site Plans do not properly represent the proposed intersection radius for the Mishawum Road/Garden Terrace intersection. The City of Woburn requires a 30 ft. minimum radius for collector street intersections. The plans show a proposed 15 ft. radius on each side of the Mishawum Road/Garden Terrace intersection.

6. The petitioner has not submitted easement agreements to the Board, which would establish his right to construct the Garden Terrace/Mishawum Road intersection. Easement agreements would have to be established between himself and the owners of 1 and 2 Garden Terrace (lots 3 & 13, Block 12007 Map 12 of the Assessor's Maps).

7. The Site Plans do not show, nor did the petitioner indicate, any mitigating measures to remedy the severe safety hazard for pedestrian travellers from the project locus across Mishawum Road. Occupants of the proposed office building should be provided with a safe means of pedestrian travel from the site locus across Mishawum Rd. Traffic signalization, offering a pedestrian crossing at the Mishawum Road/Garden Terrace Intersection would create unacceptable traffic congestion on Mishawum Road.

In the Board's opinion, a pedestrian bridge over Mishawum Road, at the Mishawum Road/Garden Terrace intersection, would be the only acceptable solution for providing a safe and convenient means of access for pedestrians travelling to and from the site locus across Mishawum Road.

8. The Planning Board herein determines that Sergeant Harold F. Magee's (Police Department Traffic Officer) traffic report on the subject locus, dated February 18, 1988, is true and factual, and as such, agrees with his stated conclusion:

It is the recommendation of the Woburn Police Department Traffic Bureau that this new building (subject office building located at 5 - 7 Garden Terrace) should not be built on Garden Terrace.

Mishawum Road is too fast and busy for a large volume of traffic coming in and out of Garden Terrace.

9. Due to its size and projected number of occupants, the proposed office building shall adversely effect the adequacy and capacity of Garden Terrace and Mishawum Road.

10. The Planning Board herein recognizes the Massachusetts Department of Public Works commercial access restriction for vehicular traffic using Garden Terrace as a means of access for properties abutting said roadway. As such, the Board determines that said access restriction is in the best interest for providing safe and convenient vehicular travel for the subject locus.

11. The Board herein determines that the volume of vehicles (with related exhaust fumes) associated with the proposed office building would have a detrimental effect on the quality of air for abutting residences.

12. There is no condition (s) that this Board can impose on the proposed project, which would provide for safe and convenient vehicular and pedestrian travel.

The process of reviewing site plans serves as an information-gathering tool which discloses the specifics of the proposed project, including the proposed location of buildings, parking areas, and other installations for the land, and their relation to existing conditions such as roads, neighboring land uses, public features, and ingress and egress roads. Prudential Insurance Company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 n.6. Essentially, site plan review is the process by which the reviewing board determines whether or not the applicant has complied with relevant by-law or ordinance provisions. Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 , 29-30 (1970); Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 , 521 (1971).

In reviewing a board's decision to deny approval of a site plan submitted in connection with a use allowed as of right, the judge must proceed in accordance with the principles governing judicial review under G.L. c. 40A, §17. Prudential at 282. In other words, the duty of the trial judge is to hear the matter de novo, make independent findings of fact and, based thereupon, determine the legal validity of the board's decision upon the facts so found. Bicknell Realty Co. v. Board of Appeals of Boston, 330 Mass. 676 , 679 (1953); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986). As the instant matter involves approval of a site plan for a use permitted as of right in the relevant zoning district, the judge must inquire into whether the public interest can be protected to a degree consistent with the reasonable use of the site for the purposes permitted or permissible within the district in which the land lies. Prudential at 282; Y. D. Dugout at 27. I find and rule accordingly that inasmuch as the reasons propounded by the Board in its decision to deny Haverty's application for Site Plan Approval exceed the scope of the Board's authority in conducting Site Plan Review, the decision must be and hereby is annulled and Haverty's application is hereby granted, subject only to Haverty's fulfillment of the condition set forth below.

In the instant matter, the Ordinance imposes certain requirements and conditions on projects, such as the one proposed herein by Haverty, which are not altogether clear and which, as applied by the Board, appear to be in conflict with one another. Specifically, the use which Haverty proposes to construct on the locus is, as the Board has stipulated, one allowed as a matter of right in this zoning district. However, inasmuch as the gross floor area of the building which Haverty proposes to construct on the locus exceeds 15,000 square feet, the Ordinance requires "Site Plan Review". See Section 5.1 (30), note 3 of Ordinance. In addition, Section 12.3.1 of the Ordinance, as quoted in Finding No. 7 above, requires that, for such projects where no special permit is necessary under Section 5, "Site Plan Review shall constitute a Special Permit (emphasis added) for which the Planning Board shall be the Special Permit granting authority." Section of the Ordinance then proceeds to enumerate the various items which the Board may consider in the course of such review, as well as the conditions which it may attach to its grant, if any, of Site Plan Approval. While, as written, certain of these considerations may well exceed the scope of lawful Site Plan Review, they could, for the most part, constitute valid areas of concern for a Board engaged in actual "Special Permit" review under G.L. c. 41, §9. I do not, however, find a Special Permit to be the issue here.

Insofar as Section refers to the Planning Board's authority to consider such factors as traffic controls, street reconstruction and improvements, water, sewerage and drainage in the course of its Site Plan Review, these factors resemble, but are more burdensome than, the considerations extended by the Board in Special Permit matters under G.L. c. 40A , §9. For example, Section appears to authorize the Board to require that the developer/applicant perform extensive off-site construction as a condition to its grant of Site Plan Approval. Further, even though Section 12.3.1 of the Ordinance uses the term "Special Permit for Site Plan Review", it is obvious that, as used therein, the term "Special Permit" is not the Special Permit envisioned by the drafters of G.L. c. 40A, §9. Moreover, uses allowed as of right in a zoning district may not lawfully be subject to the grant of a Special Permit, inasmuch as the concepts of a use as of right and a use dependent on discretion are mutually exclusive. Prudential at 281 citing SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984). In other words, if an applicant for Site Plan Approval with respect to a use permitted as of right establishes compliance with relevant area and use requirements, the Board lacks discretionary power to withhold approval of the same, its authority being limited to the imposition of reasonable terms and conditions on the proposed use. Prudential at 281-282; SCIT at 106 n. 12. Accordingly, those grounds to the Board's denial of Haverty's application for Site Plan Approval which rest upon Haverty's alleged failure to comply with standards which are clearly classifiable as "special permit standards" are invalid under the principles enunciated as governing Site Plan Review in Prudential.

In consideration of the foregoing, I find that inasmuch as the Board's reasons numbered 1, 2, 4, 5, 8, 9, 10, 11 and 12 in Finding No. 9, above, pertain to areas and facilities situated off of the proposed site, namely Mishawum Road and its general composition (i.e., curb layout, Garden Terrace/Mishawum Road intersection radius, traffic volume and capacity, etc.) as related to Haverty's proposed development, these reasons exceed the scope of Site Plan Review inquiry as set forth in Prudential and Y. D. Dugout. This is so insofar as a reasonable interpretation of said cases is that "Site Plan Review" must be confined to on-site considerations, thereby limiting any "traffic-related" inquiry to that of access into and out of the site itself and not the roadways and intersections beyond. Should the City of Woburn deem such considerations essential or desireable, however, it could, for the most part, appropriately amend Section 5 and the Special Permit portions of the Ordinance. Such requirements cannot simply be imposed upon the applicant by Site Plan Review.

The Board's reason relative to the Site Plan's failure to adequately represent the required number of on-site parking spaces (reason number 3 in Finding No. 9 above) is clearly directed at an on-site concern. However, in accordance with Prudential and SCIT, the requirement of adequate, on­site parking spaces should be imposed as a precondition to the grant of Site Plan Approval rather than a basis for its outright denial. I find this to be the proper course of action for the Board to have taken on the matter herein. Further, reasons number six (6) and seven (7) transcend the scope of the Board's inquiry in Site Plan matters. Reason number six (6) attempts to require that Haverty obtain easement agreements for purposes of establishing a right to construct an intersection at Garden Terrace and Mishawum Road, obviously another off-site improvement. Similarly, the Board may not require, as it does in reason number seven (7), that Haverty's Site Plan show "mitigating measures to remedy the severe safety hazard [posed to] pedestrian travellers [crossing over] from the project to Mishawum Road." Such a requirement also speaks more to the issue of a Special Permit than an application for Site Plan Approval. While I find it acceptable for Haverty's proposed, permitted use to be subject to "Site Plan Review", I find the standard of "Special Permit for Site Plan Review", as stated in the Ordinance, to be in excess of that permitted by law, and accordingly, beyond the authority of the Board.

In view of the foregoing, I rule in summary that the Board's reasons for denying Haverty's application for Site Plan Approval exceed the lawful scope of its inquiry during Site Plan Review and accordingly, the Board's decision must be and hereby is annulled and Haverty's application must be and hereby is granted, subject only to Haverty's compliance, to the satisfaction of the Board, with the Ordinance's requirement that the project have adequate on-site parking spaces. In so ruling, however, I do not foreclose the possibility that the Board may be able to address its traffic and safety concerns relevant to Haverty's project by appropriate, alternative means.

Judgment accordingly.