By this action, J.I.D. Realty Trust [Note l] ("J.I.D.") appeals, pursuant to G.L. c. 40A , §17, the decision of the Zoning Board of Appeals of the City of Worcester ("Board") affirming a decision of the Commissioner of Code Inspection for the City of Worcester ("Commissioner") that, under the Zoning Ordinance of the City of Worcester ("Ordinance") (Exhibit No. 1), as amended in 1980, a private access driveway ("driveway" or "proposed driveway") passing through the residentially-zoned portion of a parcel of land owned by J.I.D. located between Sunderland Road and Route 20 in Worcester ("Locus"), may not, in the absence of a variance, be used as the means of access to the commercially-zoned portion of said parcel.
On March 15, 1989, the parties submitted a Statement of Agreed Facts with seven exhibits attached thereto. Oral arguments on the matter were heard on March 20, 1989, at which time the parties offered one chalk (Chalk "A") to assist the Court. Certain of the parties' stipulated facts are included in the findings set forth below and all exhibits and chalks are incorporated herein by reference for purposes of any appeal.
The agreed facts most pertinent hereto are as follows:
1. As shown on a plan entitled "Site Developement Plan", dated October 1, 1987, revised on November 30, 1987, January 29, March 15, May 9, May 24, June 29 and August 18, 1988 ("Site Plan") (Exhibit No. 2 and Chalk "A"). Locus is situated between Sunderland Road and Route 20 and consists of approximately 19± acres. A boundary line dividing two zoning districts runs through Locus, with 6.8± acres of Locus abutting Sunderland Road being located in a residential (RS-7) zoning district ("Residential Property") and 12.0± acres of Locus abutting Route 20 being located in a limited manufacturing (ML) zoning district ("Commercial Property").
2. J.I.D. proposes to construct a retail shopping center on the Commercial Property. Article IV, Section 6(7) of the Ordinance permits retail stores in an ML zoning district as of right, but prohibits such uses in an RS-7 zoning district.
3. As depicted on the Site Plan, J.I.D.'s project proposes the construction of a private access driveway from Sunderland Road, through the residentially-zoned portion of Locus, to the Commercial Property.
4. In June of 1988, J.I.D. submitted its Site Plan to the Commissioner seeking an interpretation of the Ordinance's applicability to the proposed project.
5. By letter dated August 1, 1988 (Exhibit No. 3), the Commissioner responded to J.I.D.'s inquiry as follows:
. . . I have interpreted the present language of the . . . Ordinance . . . as prohibiting the location of a private access drive serving a business use through a residential zone without a variance for same having been granted by the Zoning Board of Appeals. . . .
6. On August 29, 1988, J.I.D. appealed the Commissioner's decision to the Board (See Exhibit No. 4), alleging therein as follows:
. . . the Commissioner has erred in his interpretation of the . . . Ordinance and that Article VIII of the . . . Ordinance permits the proposed driveway as an accessory use and the same is permitted without the need of a variance.
7. At a public hearing held on October 3, 1988, the Board voted to uphold the Commissioner's decision on the following grounds:
- By ordinance adopted April 1, 1986, the City Council deleted that portion of the . . . ordinance dealing with split lots situated in more than one zoning district, which had allowed a partial encroachment of a commercial use into a residential use. A commercial use in a residential district requires a variance.
- A private access road through a residential district built to serve commercial property is a commercial use. The private roadway is not accessory to any use allowed in the residential district and, therefore, requires a variance to pass through the residential zone . . . (See Exhibit No. 48.)
8. "Accessory uses" are defined in Article I, Section 2 of the Ordinance as follows:
. . . A land use which is subordinate to and customarily incident to a predominant or main use, even though such land use, if standing alone as a predominant or main use on its own lot, would not be permitted under the applicable district use regulations of this Ordinance.
9. The general rule with respect to "accessory uses" is set forth in Section l (a) of Article VIII of the Ordinance as follows:
A land use which is subordinate to and incident to a predominant or main use, shall be permitted in all districts as an accessory use, even though such land use, if standing alone as a predominant or main use on its own lot, would not be permitted under the applicable district use regulations of this Ordinance.
In reviewing an appeal brought pursuant to G.L. c. 40A, §17, the trial judge hears the matter de novo, makes independent findings of fact and affirms the decision of the Board if it rests on legally tenable grounds and is not arbitrary, capricious, whimsical or unreasonable. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) ; 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). The Court may not substitute its own judgment for that of the Board, Subaru of New England v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979) ; Garvey at 856, as its review is limited solely to the validity of the action taken by the Board. 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). For the reasons set forth below, I find and rule that the decision of the Board affirming the Commissioner's ruling that J.I.D.'s proposed private access driveway requires a variance is unreasonable and rests on legally untenable grounds, and accordingly, must be and hereby is annulled.
The aforesaid Article I, Section 2 of the Ordinance essentially defines "accessory uses" as land uses which are subordinate and customarily incident to a predominant or main use, even though such use, if standing alone as a predominant or main use on its own lot, would not be permitted in its zoning district. This definition is consistent with Massachusetts case law. See Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95 , 101 (1953) ; Pratt v. Building Inspector of Gloucester, 330 Mass. 344 , 346-347 (1953) ; Town of Harvard v. Maxant, 360 Mass. 432 , 438-439 (1971) ; Town of Foxborough v. Bay State Harness Horse Racing and Breeding Association, Inc., 5 Mass. App. Ct. 613 (1977). Inasmuch as the project proposed by J.I.D. involves the construction of a shopping center on the commercially-zoned portion of Locus, the proposed access driveway does not constitute the "primary use" of the land. In addition, this access driveway may be reasonably characterized as "customarily incident to" the predominant commercial/shopping center use, insofar as access to the same is necessary for a retail store to carry on business. Admittedly, said driveway, if standing alone or absent the Ordinance definition, would not be permitted in the residentially-zoned portion of Locus. Accordingly, I find that by the language of the Ordinance, such private access driveway meets the definition of an "accessory use".
The Board herein contends that J.I.D.'s proposed driveway constitutes a commercial/business use running through a residential district, and hence requires a variance. The Board bases its argument on what it deems "the logical implication" to be drawn from the express terms of Article VIII, Section l (a) of the Ordinance. Specifically, the Board asserts that the express language of Section l (a) which reads, "a land use which is subordinate to and incident to a predominant or main use, shall be permitted in all districts as an accessory use . . ." (emphasis added) means that "an accessory use is a use which is incident to a main use . . . allowed in that zoning district." This argument registers a contradiction to the express language of the Ordinance, and accordingly, must fail. The law is clear that a by-law or ordinance must be interpreted as written. Commonwealth v. S. S. Kresge Co., 267 Mass. 145 , 148 (1929). Moreover, the language contained in a by-law or ordinance must be clear and precise, so as to fully apprise a landowner of prohibitions, restrictions, and the like, to which he may be subject. See Bell v. Zoning Board of Appeals of Cohasset, 14 Mass. App. 97, 105 (1982). Accordingly, I find the Ordinance herein to authorize, in all districts, those accessory uses which are subordinate and customarily incident to the main use conducted on the same property. As the proposed access driveway, and the primary use to which it relates, are both situated on the same tract of land, I find J.I.D.'s proposed project to be in accordance with the express terms of the Ordinance and hence not subject to variance requirements. To hold otherwise would impose upon J.I.D., and other persons similarly situated, the unreasonable obligation of drawing inferences at variance from the literal terms of the Ordinance.
On all of the evidence, I thus rule in summary that the private access driveway proposed for construction by J.I.D. meets the Ordinance's express requirements for an "accessory use", and accordingly, the decision of the Worcester Zoning Board of Appeals affirming the Commissioner's ruling that such driveway requires a variance prior to construction must be and hereby is annulled.
Judgment accordingly.
J.I.D. REALTY TRUST vs. MICHAEL A. SALVIDIO, STEVEN A. PROKO, MICHAEL S. FERGUSON, GEORGE M. MELICAN and JOSEPH B. FINNEGAN, as they are members of the ZONING BOARD OF APPEALS OF THE CITY OF WORCESTER.