WILLIAM DALY, TRUSTEE OF BORDER REALTY TRUST vs. SALVADOR F. PORRAS, VIRGINIA A. HOEFLING and ROBERT H. OPPENHEIMER, individually and as the same constitute the BOARD OF APPEALS OF THE TOWN OF WINCHESTER and the TOWN OF WINCHESTER.

The plaintiff William Daly, as Trustee of Border Realty Trust appeals pursuant to the provisions of G.L. c. 40A, §17 from a decision of the Board of Zoning Appeals of the Town of Winchester ("ZBA") which denied with prejudice the plaintiff's application for site plan approval. The complaint also contains a count pursuant to the provisions of G.L. c. 240, §14A seeking a declaratory judgment as to the application of the by-law to the plaintiff's land. Since I hold that the decision of the Board of Appeals was wrong as a matter of law and approve the site plan subject to certain conditions, I do not reach the count pursuant to c. 240, §14A.

A trial was held at the Land Court on August 7, 1990 at which a stenographer was appointed to record and transcribe the evidence. [Note 1] At the trial the plaintiff called as witnesses Donald J. Forand, a registered land surveyor and survey manager for BSC which prepared the site plan, Robert Emond, vice president and director of operations for SpeeDee Oil Change and Tune-up of New England and Dominic J. Ceratorri, the building commissioner and zoning enforcement officer of the Town of Winchester. The defendants witnesses were Elaine Vreeland, the town's conservation administrator, John Ciarcia, town engineer and Planning Board engineer and Kevin P. Mawn, a Winchester police officer and the safety officer for the town. A total of fourteen exhibits, some with multiple parts and three chalks were introduced, which are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The plaintiff is the owner of a parcel of land situated on Main Street (Route 38) in Winchester at the city-town line with Woburn. The parcel in question consists of 14,385 square feet with a frontage on Main Street of 77.17 feet and on Sheriton Circle of approximately 140 feet. It conforms in all respects to the dimensional requirement of the zoning by-law.

2. The locus is situated in the General Business District. The plaintiff's use of the premises would encompass a facility for the quick change of motor vehicle oil and engine tune-ups.

3. The building inspector and zoning administrator determined that the proposed use fell within Use category 34 of Section 4.4 of the by-law. As set forth in the by-law, this use is "salesroom or repair garage for new and used automobiles, boat, and other vehicles." In the General Business. District the by-law contains a category "Y*"·

4. In Section 4.1, Use Regulations in the By-law, there appears this:

"Yes" * - permitted as of right but also subject to additional site plan review requirements of subsection 8.7 of this by-law; also in the RB-20, RA-120, PRD and MD Districts permitted uses above a certain dwelling unit density per acre are subject to a special permit from the Board of Appeals (see Section 6.29) Affordable Housing Incentives).

5. The form prepared by the ZBA and which applicants are instructed to use does not recognize this category, i.e., site plan review without the requirement of a special permit. Accordingly the application filed by the plaintiff bears an X next to the category of "Special Permit in accordance with Zoning By-Law Section 8.7." However, the wording of the application which clearly recites that the petitioner was requesting site plan approval to enable the petitioner to demolish the existing nonconforming structures consisting of garages and residential structure and to build a new single structure as shown on said plans for oil change and tune-up garage made no reference to the special permit. The brief which was filed on behalf of the plaintiff also made or should have made it clear to the Board that there was no requirement for a special permit for the proposed use but rather the Board was to consider the site plan and to make suggestions.

6. Section 8.7 of the Zoning By-law which provides for site plan review mµst have been drafted prior to the introduction of the category now before the Court, of use permitted as of right but with site plan approval, since Section 8.7 refers only to special permit and in such instances provides that a special permit shall be issued "only if the Board of Appeals makes a finding and determination that the proposed placement of buildings, provisions for waste disposal, surface drainage, parking areas, driveways, and the location of intersections of driveways and street will constitute a suitable development and will not result in substantial detriment to the neighborhood."

7. In addition to the requirements of the by-law there was adopted on October 8, 1974 by the Winchester Board of Appeals and the Winchester Planning Board a so-called Site Plan Review Manual which recognizes the two categories as to uses requiring special permits and uses permitted as of right but also designated as subject to site plan review and the table of use regulations. The manual again is hazy about the distinction between special permits and uses permitted as of right and treats them as the same for the determination by the Board of Appeals. The language immediately following the paragraph relative to the requirement of preliminary site plan reads as follows:

In such cases, a special permit shall be issued only if the Board of Appeals makes a finding and determination that the proposed placement of buildings, provisions for waste disposal, surface drainage, parking areas, driveways, and the location of intersections of driveways and streets will constitute a suitable development and will not result in substantial detriment to the neighborhood.

8. The site slopes gradually toward Main Street so that a runoff in that direction may be anticipated, particularly with the paving of the property. The town engineer recommends that a drainage plan be prepared showing proposed manholes and catch basins on the site and the tie-in into an existing town drain system together with calculations demonstrating existing and post- construction runoffs with any appurtenances necessary to handle the increase, if any, was recommended (Exhibit No. 14A).

Questions also have been raised as to lighting which is not covered by the by-law provisions, and as to any proposed signs. The latter will have to comply, of course, with any sign by-law in the Town of Winchester and any applicable provisions of the zoning by-law and need not be dealt with in connection with the site plan.

9. The disposal of hazardous waste into which category oil falls, as Saddam Hussein has discovered, is subject to the requirements of the Department of Environmental Protection and perhaps to the Federal Environmental Protection Agency. The site plan shows a proposed oil and grease trap and beneath the bays where the oil changes will take place the standard design of a facility such as that proposed by the plaintiff makes provision for protection of the environment.

The queuing of cars waiting to enter the facility was a concern to town officials, but the proposed design with entry from Sheriton Circle to the rear of the premises and the exit therefrom onto Main Street seems an appropriate traffic pattern. Beyond the locus on Sheriton Circle the area is residentially zoned and the presence of a church with its attendant traffic may conflict with the traffic generated by the proposed use. The situation does not appear to be intractable and should be limited to the immediate vicinity of the site. If the business is successful and queuing becomes a concern, the town may wish to make Sheriton Circle one way leading westerly from Main Street, at least during certain hours of the day and certain days of the week. Experience may also dictate the necessity of a special police officer at times should problems develop in traffic control.

The Winchester Zoning By-law and the ZBA have never clearly distinguished the difference between a use permitted as of right with site plan approval required and a special permit for a site plan. The decision of the Appeals Court in Prudential Insurance Company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986) differentiating between uses permitted as of right and those allowed only upon compliance with the requirements of a traditional special permit reiterated that "a use allowed as of right cannot be made 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." See SCIT. Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984). The Appeals Court further went on to state that the ZBA in such instances where a use was permitted as of right was limited to imposing reasonable terms and conditions on the proposed use and did not have discretionary power to deny approval. That clearly was the route that the ZBA should have followed in the present case.

Chief Justice Greaney then in Prudential went on to weigh the role of the judge in reiewing a board's decision denying approval of a site plan submitted in connection with the use allowed as of right. In short, the court determined that the judge was essentially to examine the proposal to see if any problems which concerned the board were 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" (283). The present case is simpler than that in Prudential where there was a lengthy trial over the better part of eighteen days directed exclusively to traffic. The concerns of the town, however, being nonetheless real, but having in mind the admonition of the Appeals Court that a use permitted as of right cannot be prohibited unless there is no solution to the problems engendered by this particular site, I find and rule that the board mistook its role and gave no weight to the difference between a use permitted as of right with site plan review and a true special permit category. See, however, Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 (1970) which might suggest that the difference may not lie in the site plan requirements but in whether it is a true special permit case as in Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486-488 (1979). In any event it is clear that as the by-law read at the time of the application, the hearing and the decision of the board, the board under the structural situation here had no right to deny the application but was limited to imposing reasonable regulations.

In view of the time delays to which the plaintiff has been subjected I annul the decision of the ZBA and approve the site plan subject to the requirements that a drainage plan be prepared showing proposed manholes and catch basins on the site and where they will be tied in to the existing town drain system together with the calculations as to existing and post-construction runoffs with proposed provisions for handling any additional discharge of surface water. Should the actual operation of the facility result in queuing beyond that adjacent to the Sheriton Circle sideline of the locus, the town may wish to consider making Sheriton Circle one way westerly from Main Street. Although not imposed as a condition at this time, the hiring of a special police officer on weekends may prove to be necessary if the operation is successful.

Judgment accordingly.