MISC 134073

November 14, 1991

Worcester, ss.



By complaint filed May 5, 1989, pursuant to G.L. c. 40A, §17, and amended on May 30, 1989, Plaintiffs appeal the denial of a special permit by the Bolton Zoning Board of Appeals ("the Board") to expand a building ("the Building") located at 476 Main Street in Bolton ("Locus") that is nonconforming in that it fails to meet the setback requirements of the Bolton Zoning By-Law ("the By­ Law"). Plaintiffs further request a declaration that the setback requirements in Section of the By-Law are invalid as applied to the Building. The Attorney General was properly notified, pursuant to G.L. c. 231A, §8, and chose not to be heard.

On February 20, 1991, the Court took a view of Locus. Both parties have submitted Post-Trial Memoranda.

A trial was held on February 20, and April 29, 1991, at which times the proceedings were transcribed by a court-appointed reporter. Four witnesses testified and nine exhibits were introduced into evidence. All of the exhibits are incorporated herein for the purpose of any appeal.

On all of the evidence before the Court, I make the following findings of fact:

1. Plaintiffs are the owners of Locus as shown on a site plan entitled "Country Cupboard Addition/476 Main St./Bolton, MA", dated November 15, 1988 ("the Plan") (Exhibit No. 3).

2. On February 8, 1989, Plaintiffs applied for a special permit under Section of the By-Law. The petition ("the Petition") sought to add an addition ("the Addition") to the Building.

Locus is 2.64 acres and the total floor area of the Building is approximately 8,590 square feet. The Addition would add 852 square feet at the first floor level and 5,659 square feet at the second floor level for a total of 6,511 square feet of additional floor area. The Addition would be located in back of the Building and there would be access around both sides of the Building.

3. Originally, the Building was an apple storage building which became single story convenience store and farm stand measuring 3,230 square feet in area. In July of 1986, and again in December of 1986, Plaintiffs received building permits and in accordance therewith expanded the building to its present size.

4. Locus is in a business district. The Building, however, is nonconforming in that it is setback approximately 49 feet from the street, whereas the required setback for business or commercial uses is 150 feet (Section of the By-Law).

5. The Building presently contains a convenience store, gift shop, florist, photographer, video store and bank machine. Next to Locus is a Gulf Station and across the street is a cemetery and two office parks one of which also has retail stores. Further down the road and in this district is another retail and office complex.

6. By decision filed on April 18, 1989, the Board denied the Petition. The Decision provided, in pertinent part, as follows:

The petition for a Special Permit was denied because the Board felt that the proposed expansion of the present facility would have a substantially more detrimental impact on the neighborhood.

The present building is non-conforming because of the set-back from the road which is 49 feet rather than the 150 feet required. There is now parking in front of the building and traffic congestion due to the lack of maneuvering room due to the small set-back.

The Board felt that the non-conformity is the problem and to double the size of an already non-conformity [sic] was inappropriate. . . .

This present petition is to increase the present existing structure and use by 100% adding at least 6 units, mostly retail. This would create a major increase to an already existing parking problem, due to the increase traffic flow and congestion.

The proposed additional parking would be far to the rear, up an 8% grade in a narrow 2 way drive. This will not induce parking away from the front of the building and will substantially add to an already existing problem.

Another concern expressed by the members was the minimal information provided and the lack of an attempt to minimize or alleviate the parking and traffic problems . . . .

7. Section (a) of the By-Law provides as follows:

Extension or Alteration: As provided in Section 6 of Chapter 40A, G.L., a pre-existing nonconforming single or two-family dwelling may be altered or extended provided that doing so does not increase the nonconforming nature of said structure, and other pre-existingnonconforming structures or use [sic] may be extended or altered, on Special Permit from the Board of Appeals if the Board of Appeals finds that such extension or alteration will not be substantially more detrimental to the neighborhood than the existing nonconforming structures or use [sic]. Generally an increase of not over l00% from the original floor area of the building at the time of the adoption of the Zoning Bylaw on April 13, 1972, or not over 50% of the ground area in use at that time, shall be considered as not substantially more detrimental to the neighborhood. . . .

8. 476 Main Street, also Route 117, a heavily traveled road, Locus is near the intersection of Route I495. There have apparently been some problems with traffic congestion at the access to Locus.

9. One of the purposes of the 150 foot setback requirement is to make access to commercial buildings and parking safer and more convenient.

In reviewing appeals brought pursuant to G.L. c. 40A, §17, the trial judge hears the matter de novo, makes his own findings of fact, and on the facts so found, affirms the board's decision unless it is found to rest on a legally untenable ground or is unreasonable, arbitrary, whimsical or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); 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). Insofar as the court's review is limited to the legal validity of the board's actions in granting or denying the special 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), it 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; Garvey at 956.

The language in the above-quoted Section (a) is, in pertinent part, similar to G.L. c. 40A, §6. The court has interpreted G.L. c. 40A, §6 to require a finding that an extension or alteration is not substantially more detrimental than an existing use or structure to the neighborhood. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21 (1987).

In the present case, Plaintiffs have presented no credible evidence concerning the impact of the Addition on traffic safety in the area. I cannot find that the increase in traffic caused by the Addition when combined with the existing congestion at the entrance to Locus on the heavily travelled Route 117 would not be substantially more detrimental to the neighborhood. Accordingly, I find that Plaintiffs have not met their burden and the decision of the Board must be and hereby is upheld.

I further find that while the language in Section (a) of the By-Law regarding increases of less than 100% is a guideline to be used by the Board, it certainly not mandatory that all such increases be allowed. In the present case, in light of the recent increases in size of the Building totalling over 100%, I find such provision was reasonably applied by the Board.

Finally, I cannot find that the 150 foot setback provision of the By-Law is in this instance unreasonable.

Judgment accordingly.