MISC 134564

February 4, 1991

Middlesex, ss.



Plaintiff appeals under G.L. c. 40A, §17 a denial by the defendant Board of Appeals of the Town of Hudson (the "Board") of a special permit relative to service station premises at 457 Main Street in Hudson.

The parties filed a Joint Pre-Trial Memorandum. There was a trial on December 6, 1990 at which testimony was taken before a Court stenographer, who has prepared a transcript. Five exhibits were introduced, which are incorporated herein for purposes of any appeal. Two witnesses testified, plaintiff and Lynn McAuley, a member of the Board.

On all the evidence I find and rule as follows:

1. Plaintiff owns a triangular parcel of land located at 457 Main Street, Hudson, Massachusetts containing approximately 14,451 square feet, located in an SA-8 single residence district.

2. This parcel was the site of a gasoline station prior to the adoption of zoning in Hudson. That use was discontinued for a period during which a residence was located on the site. The discontinuance was long enough so that re-establishment of the service station use was found to require a variance. A variance "for operation of a service station for the purpose of dispensing petroleum products" was granted for the site in 1965 and amended as to site plan particulars in 1966.

3. A service station has been operated on site since then, under franchise from one of the major national oil companies. The present service station building is approximately 29' x 41'. It contains an office and two service bays. About 50' in front of the building there is a 45' x 24' free standing canopy under which there are two gasoline pumps, each having three hoses, and a small attendant's station.

4. Plaintiff seeks to add a 30' x 24 ' addition to the existing canopy, and an additional self-service pump. Further, plaintiff seeks to expand a portion of the building 24" to 30" to the edge of the existing overhang primarily to satisfy Registry of Motor Vehicle requirements for the inspection of motor vehicles. Such inspection would be a new use.

5. In March 1989 plaintiff applied to the Board for a special permit to change, extend and alter the existing non-conforming use allowed by variance by amending the variance to permit the changes described in the immediately preceding paragraph.

6. A public hearing was held in April, 1989 and the Board voted 4-1 to deny the special permit. The Board made the following supportive findings:

Expansion of the business would be detrimental to an SA-8 Residential District.

There would be increase in traffic in an area already heavily impacted.

Only the sale of oil and gasoline was allowed under the existing variance.

The Board cited, as an additional reason for the denial, that "the proposed use would derogate from the intent and purposes of the Zoning By-Laws".

7. The Board, and both counsel before this Court, considered that the applicable portion of the Zoning By-Law was section, as follows:

Any lawful building or structure or use of a building, structure or premises existing at the time this Bylaw is adopted, even if not in conformance with its provisions may be continued, rebuilt if damaged or destroyed, and if authorized by the Board of Appeals, may be enlarged or changed to a specific new use.

8. Not only is the site located in a single residential district under the Town's Zoning By-Law, it also is in fact situated in a neighborhood where residences predominate. There are businesses, including other gas stations, between a quarter to a half mile away from the site, but none in the immediate vicinity.

9. Addition of another pump "island" would increase the potential gasoline sales activity by 50%. The existing site appears to be moderately crowded as is.

The Board and parties proceeded on the basis that the relief requested was a special permit to vary the terms of the 1965 variance, on the strength of Section 5.1.6 1 of the Zoning By-Law, which, in turn, was thought to be warranted by the second sentence of the first paragraph of §6, Chapter 40A, as follows:

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

To amend the 1965 variance, plaintiff should have sought a variance.

Reliance on § of the By-Law was misplaced. That section does not expressly track the sentence from §6, Chapter 40A quoted above but it is close enough to be governed by the holding of Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 (1990) that a variance should not function "as a launching pad for expansion of a non-conforming use." (at p. 531). Plaintiff's service station was not a pre-existing non-conforming structure; rather, it was "lawful" only by virtue of a variance.

Nothing will be gained by remanding this case to the Board. The Board refused to grant even a special permit. It seems to make more sense, therefore, to decide this case on an alternative ground, by considering the Board's action on its merits. On the basis of the facts which I have found above, I find and rule that the action of the Board in denying the special permit was within its authority and not arbitrary, capricious or whimsical.

Judgment accordingly.