MISC 131655

November 14, 1989

Worcester, ss.



This action is both an appeal from decisions of the License Board (the "Board") of the city of Worcester and of the Worcester Board of Appeals (the "ZBA") pursuant to the provisions of G.L. c. 240, §14A and a complaint for a declaratory judgment pursuant to c. 231 as to the validity and the extent to which Article VI, Section l (b) (1) of the Worcester Zoning Ordinance and Chapter 11, Article 1, Section 9 of the revised Ordinances of Worcester affects McDonald's proposed use, enjoyment, improvement or development of the property at 595 Mill Street in Worcester. The latter aspect of the action is no longer an issue since the parties have stipulated that if the plaintiff prevails on the zoning aspect of its appeal, a so-called Class II Open Air Parking Lot License also will be issued.

With the validity of the ordinance establishing the Class II Open Air Parking Lot License removed from the case (see, however, Francis W. Madigan, Jr., Trustee v. Robert J. O'Keefe, et al, C.A. 75-2441-MA (F. Dis. Ct., Dis Ma)) the principal question remaining to be decided is whether the Board properly denied the plaintiff's application for approval of its parking plan.

A trial was held at the Land Court on August 11 and August 14, 1989 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff called as witnesses Susan Cleary Archer, one of its real estate representatives, Laurel Hodges, a project manager, Allen F. Paige, a registered engineer and land surveyor engaged by the plaintiff, Joseph Castellucci, an Operations Consultant, James Perrone, of the Department of Code Inspection of the City of Newton, Robert Johnson, Chief Traffic Engineer of the City and Franklin Chin, an expert witness in the field of traffic engineering. The parties stipulated (Exhibit No. 29) as to the testimony of Gerhard P. Muenchmeyer, Assistant Commissioner of the City of Worcester Department of Public Works who was unavailable to testify at the trial.

On all the evidence I find and rule as follows:

1. Article VI 1.(b)1 of the Worcester Zoning Ordinance (Exhibit No. 1) requires approval by the Board, after receipt of a report by the Traffic Engineer, of all off-street parking plans prior to the issuance of the building permit. The parties stipulated that the Board is not a special permit granting authority.

2. The article specifically provides that

The License Board shall examine said parking plans with respect to access, drainage, capacity, circulation, and safety to pedestrians and vehicles using the facilities and using abutting streets.

3. The Zoning Ordinance also provides in Section 2 for off-street parking with the requirements as to numbers of parking spaces dependent upon the category of use. For example, item 10 encompasses "Quick Sevice, Fast Food, Drive-In Establishment" with the ordinance specifying "One (1) parking space for each forty (40) squar feet of gross floor area". There also is a category for "Drive-Up Service; including window, pump, wash, cash and carry", but the former is that applicable to the proposed use.

4. The locus at 595 Mill Street has in the past been the site of at least two restaurants, the most recent being known as Hannah's Bar and Grill ("Hannah's"), a full service restaurant with a liquor license and a cocktail lounge. Hannah's had seating for 285 patrons who entered the parking lot either from Mill Street or from an easement which ran from Mill Street abutting Hannah's to an apartment complex in the rear. There was no prescribed traffic pattern within Hannah's lot, and cars could enter and leave as they pleased. In the evening the lot frequently was congested.

5. Hannah's was issued an open air parking lot license at least during the years from 1983 through 1988 with parking of 71 cars, subsequently increased to authorization for 76 cars. There was no explanation at the trial as to the variance in the number of parking spaces required in the ordinance for different types of restaurant with the lesser number required for a sit down restaurant than for a fast service emporium. This, however, is not an issue in this action.

6. The locus is situated in a limited business district in which a drive-in restaurant is a permitted use. Adjoining it to the northeast is a small shopping center in which there is a large CVS drug store and a Friendly's restaurant. There also is a D'Angelo's on Chandler Street, east of Mill Street. On the corner of Mill and Chandler Streets is a bank. This intersection is about two hundred feet from the property line. Immediately across Mill Street from the locus is a Senior Citizen Housing Project. The sight distance from the proposed McDonald's driveway is three hundred sixty-seven feet in the direction of Chandler Street and in the opposite direction to the Mill Street bridge, about two hundred seventy-five feet. The bridge had been closed by the Commonwealth, but a temporary bridge is now in place and is open. In each instance the site distace is adequate.

7. Within the service area of the plaintiff's proposed restaurant are the Worcester Airport and the Worcester State College.

8. The plaintiff intends to construct a typical McDonald's restaurant on the site with two tandem boards so that two orders can be placed simultaneously with a stacking area for three cars. The average time to go through is 40 seconds with 12:00 noon to 1:00 P.M. being the average busiest hours. About thirty-five to forty percent of the customers go through the drive-in with mothers with small children favoring it as the safer alternative. The drive-in generates about forty to fifty percent of the sales of the average McDonald's restaurant. The building to be erected on the site has a gross floor area of 3,534 square feet and 85 seats. As adjusted for the parking computation to compute the required number of spaces the building has 3,028 square feet in accordance with section VI 2. (b) of the Ordinance. Since there is a zoning requirement of one space for each 40 square feet of gross floor area under section VI 2. (b) 10, 76 parking spaces are required; three or four of such spaces must meet handicapped parking rules and regulations. These latter spaces are not in addition to the mandated number first mentioned but are included therein.

9. McDonald's does not intend to use the easement for access to the parking lot, but rather it will have all traffic enter the site through a thirty foot wide curb cut and then direct it to turn right and proceed in a counterclockwise direction either to go through the drive-through ordering process or to park and enter the restaurant. Deliveries will be made by an 18 wheel trailer truck but can be scheduled at the manager's convenience; the food, drinks and supplies are transferred from the truck by hand by a dolly. The restaurants have no loading dock. A release of the easement was introduced into evidence as Exhibit No. 10.

10. The easterly sideline will be fenced starting about fifty-five feet back from the front sideline, and the entire back of the property also will be fenced. The fence height progresses from four to six feet with the back at a height of eight feet. Hannah's has one light in the back of the site whereas the plaintiff will install six double lights around the property perimeter of metal halide. The fixtures have a reduced overspill to alleviate any annoyance to neighbors. The voice boxes are calibrated so that they cannot be heard beyond twenty feet. Access to the mechanism to increase the volume is strictly regulated by the plaintiff. Neither the residents of the senior citizen housing across Mill Street nor of the apartment complex to the rear of the restaurant should be able to hear the selections being ordered by customers or directions or questions from the plaintiff's employees.

11. The business at an average restaurant of the plaintiff is sixty-six percent "induced", that is, it comes from patrons already on the highway as opposed to being "generated" by the knowledge that there was a restaurant at the site with a conscious decision made to leave home specifically for that destination to eat a "Big Mac" or the like. The average traffic count during the morning peak hours of 7:30 A.M. to 8:30 A.M. is two hundred seventy-one vehicles leaving Mill Street at the Chandler Street intersection and one hundred eighty-six vehicles entering Mill Street during such time frame.

12. After the plaintiff determined that the zoning was favorable and selected the site for the location of a restaurant proposed plans were prepared of the building and site development. James Perrone, of the Department of Code Enforcement, rejected the initial plans which showed a larger building with insufficient parking to meet the ordinance requirements. The project went back to the drawing board, and the revised plans consisting of three sheets and bearing a final date of October 11, 1988 were introduced as Exhibits Nos. 9A, 9B and 9C. They bear the written approval of Robert D. Johnson, Traffic Engineer for the City of Worcester and of James Perrone of the Department of Code Inspection as to parking; the Department of Public Works through its representative Gerhard P. Muenchmeyer, Assistant Commissioner, signed to show that the plans had been reviewed and conformed to the Department's requirements. In addition, the Conservation Commission issued an order of conditions.

13. The plaintiff filed an application dated October 13, 1988 for an open-air parking space at 595 Mill Street. The preceding September McDonald's had agreed with Tatnuck Associates, the owner of an abutting property, to construct a cedar fence along the rear and sideline of the locus; to release its rights in the appurtenant right of way (Exhibit No. 10) and to contribute with its seller and the broker $5,000, ($2,000 from the plaintiff) to the planting of trees by the abutter along the rear property line of the restaurant; to use a filtered exhaust system; and to keep the noise level of the voice box at a minimum.

14. The parties stipulated to the following facts which I accordingly find:

1. Gerhard Muenchmeyer is the Assistant Commissioner for the City of Worcester Department of Public Works.

2. The Department of Public Works reviews parking plans, utility and grading plans and demolition plans submitted by applicants for parking plan approval under Article VI of the Worcester Zoning Ordinance and for parking lot licenses approval. The criteria used by the Department of Public Works to review parking plans are those set forth in Exhibit 15, entitled Parking Lot Plan Requirements which was introduced into evidence.

3. The McDonald's parking plan, utilities and grading plan and demolition plan (Exhibits 9A, 9B and 9C, respectively) were reviewed by the City of Worcester Department of Public Works in accordance with the criteria set forth in the DPW's Parking Lot Plan Requirements (Exhibit No. 15).

4. On October 11, 1988, Gerhard Muenchmeyer, in his capacity as Assistant Commissioner for the City of Worcester Department of Public Works, affixed his signature and stamp to the McDonald's parking plan, utilities and grading plan, and demolition plan (Exhibit 9A, 9B and 9C) which established that McDonald's parking plan, utilities and grading plan, and demolition plan were approved by the City of Worcester Department of Public Works as meeting all the criteria set forth in the DPW's Parking Lot Plan Requirements (Exhibit No. 15).

5. By letter dated October 12, 1988 (Exhibit 17) Gerhard Muenchmeyer, in his capacity as Assistant Commissioner of the City of Worcester Department of Public Works, communicated to the License Board the DPW's approval of McDonald's parking plan, utilities and grading plan, and demolition plan (Exhibits No. 9A, 9B and 9C).

15. The License Board has only one form of application for a parking lot and requires any owner who seeks approval of a parking lot plan for his permitted use to file such an application even though he is not conducting a parking lot for which parking fees are charged. The Board has denominated this permit as a Class 2 license. A hearing was held on the plaintiff's application for a parking lot intended to be used by plaintiff's customers for which no fee will be charged, and on October 27, 1988 the Board voted to deny it, for the following stated reasons:

The application was denied because the exit and driveway ingress, egress, and location of same constitute a hazard to the pedestrians and children in the area, more particularly the elderly in the housing units, and children walking to and from the Logan Field Athletic Facility. The proposed parking and traffic flow volume to be generated would cause a hazard to the safety of the motorists and the public.

16. The plaintiff appealed the decision of the License Board to the ZBA pursuant to the provisions of G.L. c. 40A, §8 by instrument dated November 23, 1988. The initial hearing was scheduled for December 28, 1988 at which no action was taken. The ZBA ordered the matter re-advertised and a hearing was held on February 27, 1989. A majority of the ZBA disapproved the action of the License Board by a three to two vote, but section 15 of G.L. c. 40A, requires a four to one vote to reverse the decision of an administrative official. The decision was filed in the City Clerk's Office on March 1, 1989. It appears that the ZBA failed to hold. the hearing within sixty-five days from the notice of appeal, but the plaintiff waived any contention as to a constructive grant. The record is silent as to whether the plaintiff in turn gave the section 15 notice to parties in interest.

17. The reasons for the ZBA's failure to reverse the decision of the License Board principally concerned the nature of Worcester's public ways and the travel thereon. Certain of the findings such as that to the effect "site distance from the proposed McDonald's driveway onto Mill Street is very limited" are in conflict with those I have made. There is no finding directed to the parking plan as submitted by the plaintiff. Rather the findings are directed to extrinsic factors which the Board concluded created a hazard to pedestrians and motorists using the proposed parking facility. The decision did not explain the grant of the license for several years to the plaintiff's predecessor with the new driveway being planned for the same location as the old.

While the plaintiff received approval of the majority of the members of the ZBA, it failed to receive the super majority required by the statute. Accordingly the decision of the ZBA was appealed to this Court pursuant to G.L. c. 40A, §17; the plaintiff also contended that the ordinance regulating parking lot licenses does not apply to it, but this aspect of the case has been resolved by agreement, and it is no longer an issue. I now find for the plaintiff and remand the matter to the ZBA with instructions that it approve the site plan as meeting the requirements of Article IV 1. (b) l.

Chapter 40A of the General Laws is silent on the subject of site plans, and the number of court decisions construing local legislative enactments is rapidly increasing. This court recently weighed the question of "freeze protection" by a site plan approval, Towermarc Canton Limited Partnership et al v. Town of Canton, Miscellaneous Case No. 131947, and that is only the most recent of several problems affecting site plans which have been judicially addressed. It is in Prudential Insurance Company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281-283 (1980) that the definitive rule for the trial court judge to follow is set forth. Preliminarily the Appeals Court speaking through Chief Justice Greaney first quoted from SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 106 n2 (1984) that "if the specific area and use criteria stated in the [ordinance] [are] satisfied, the board did not have discretionary power to deny [approval], but instead was limited to imposing reasonable terms and conditions on the proposed use." This is precisely the factual situation in Worcester. Chief Justice Greaney then instructed trial court justices as follows :

The question remains as to the role of the judge in reviewing a board's decision denying approval of a site plan submitted in connection with a use allowed as of right. Such a review proceeds in accordance with the well-established principles governing judicial review under G.L.c. 40A, § 17. [Note 1] As the issue involves approval of a site plan for a use permitted as of right, the judge inquires whether (in the language of § l0 A [e] of the Westwood by-law) the public interest can be protected "to a degree consistent with the reasonable use of the site for the uses permitted . . . in A-R-0 districts." The leading case on site approval, in these circumstances, Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 (1970), makes clear (at 31), that this language [Note 2] imposes "regulation of a use rather than its prohibition." Thus, the judge was not required, as he would have been if a special permit had been in issue, simply to ascertain whether there was "sufficient basis to warrant [the board's] decision." Humble Oil & Refining Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 606 (1971). Nor was his analysis confined by the principle that "[i]t is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling." Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). See Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486-488 (1979). The judge was essentially to examine the proposal to see if the traffic problem was so intractable that it could admit of no reasonable solution. Short of independently finding that, he was not obliged to give deference to the board's decision.

The Worcester ordinance lists "access, drainage, capacity, circulation and safety to pedestrians and vehicles using the facilities and using abutting streets" as factors to be considered by the Board. The decision of the License Board speaks in generalities and did not address the areas specified in the ordinance. The decision of the ZBA, pertinent portions of which appear in Appendix "A" hereto, did consider some of the determinative features. However, it did not focus on the internal circulation within the site which should be the primary concern where an "of right" use is under examination. The width of Mill Street and the curves therein are the responsibility of the city of Worcester and are without the plaintiff's control. The locus is zoned for the use for which the plaintiff intends to use it and the function of the License Board is to make suggestions to improve the parking plan if it is lacking. The internal circulation of the parking lot has been used nationwide, and the multiplicity of sites so designed without safety problems provides strong evidence of the merit of the plan. The testimony at the trial which I adopt also supported the proposed internal traffic pattern including the safety thereof.

The ZBA also found that the plaintiff's proposed use would result in a traffic increase. I find and rule that this finding cannot be supported since the evidence was to the effect that at least 66 2/3% of the customers will already be on the road whereas those of the previous restaurant at the site normally would be expected to select it as their destination. In any event the use is permitted as of right. The ZBA also found that site distance on Mill Street was very limited, but the evidence before me established that visibility is adequate and did not pose a safety problem. Many of the other findings of the Board find their progenitors in the nature of the zoning, not in the site plan for the parking lot. In the light of the approvals by the relevant department heads it would appear that the decision of the License Board and the ZBA may be in the words of Auburn v. Planning Bd. of Dover, 12 Mass. App. Ct. 998 (1981) "a ruse to turn down a [company which] was otherwise entitled to the issuance of a permit". (Page 999)

The plaintiff's plan complied in all respects with the provisions of the Worcester Ordinance and should have been approved by the License Board. I therefore find and rule that the Zoning Board of Appeals should have allowed the plaintiff's appeal and remand this matter to it to approve the plaintiff's application for site plan approval pursuant to the provision of the Zoning Ordinance.

In accordance with the terms of the stipulation a Class 2 parking lot license also is to issue to the plaintiff.

Judgment accordingly.

Appendix A

Appendix A cont.


[Note 1] These principles have been variously stated but involve at least the following: "In a word, the matter is heard de novo and the judge makes his own findings of fact, independent of any findings of the board. . . ." Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953). The judge is not confined to hearing only the evidence before the board. Ibid. Such review "confines the function of the court to its usual and proper function of applying established law to established facts." Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559 (1954). "The decision of the board is no more than the report of an administrative body and on appeal has no evidentiary weight." Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 , 321 (1955). "[T]he judge . . . is to . . . determine the legal validity of the decision of the board upon the facts found by him . . . ." Lawrence v. Board of Appeals of Lynn, 336 Mass. 87 , 89 (1957). See also Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980).

[Note 2] Indeed, the drafters of the Westwood by-law appear to have used language practically identical to the language of the Canton by-law analyzed in the Y.D. Dugout decision.