MISC 138958

August 8, 1991

Essex, ss.



By complaint filed November 17, 1989, pursuant to G.L. c. 40A, §17, Plaintiff seeks an annulment of the decision of the Board of Appeals of the Town of Danvers ("the Board") denying its application for the extension ("the Extension") of an office and warehouse facility ("the structure"), which under the present zoning By-Law are nonconforming as to extent of use and size of structure. Plaintiff further seeks a declaration that such extension will not be substantially more detrimental to the neighborhood than the existing nonconforming structure and use.

This case was tried on December 28, 1990 and January 28, 1991, and on April 2, 1991, the Court took a view of the Structure and general area in which it is located. The trial proceedings were transcribed by a court-appointed reporter. Six witnesses testified and sixteen exhibits were introduced into evidence. The exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. Plaintiff, a Massachusetts corporation which does business in Danvers as Seaboard Products Company ("Seaboard"), operates a wholesale beverage and snack food distribution center or warehouse, from a structure which is located at 17 Collins Street in Danvers ("the Premises").

2. Most of the Premises, including the Structure, is located in a Route 114 Corridor Zone B; the remaining portion, including a portion of the driveways accessing the Premises, is in a Residence I district. The Extension is to be located entirely within the Route 114 Corridor Zone B which came into existence in 1987.

3. The parties agree that the Structure is nonconforming in that it is in excess of the Section 26.2 of the Danvers zoning By­ Law ("the By-Law") which permits warehouses and office buildings, but requires a special permit for anything over 30,000 square feet of area, that the use of the Premises is nonconforming inasmuch as it requires access across one zoning district from another, which use also requires a special permit, and it is also nonconforming to the extent such use exceeds 30,000 square feet.

4. The Premises contain approximately 5.7 acres. The Structure is approximately 60,711 square feet in gross floor area. 54,411 square feet are devoted to warehousing, with the remaining 7,300 square feet used for offices purposes (See exhibit No. 2). The area, triangular in shape, is well screened from the residential side and abuts a railroad track with adjacent industrial buildings on the other two.

5. By special permit dated June 12, 1989, the Board allowed Seaboard to construct a 2,800 square foot addition to the Structure for use as office space.

6. On or about September 22, 1989, Seaboard submitted an application ("the Application") to the Board to construct a 12,000 square foot warehouse addition, to create eight new parking spaces on the Premises for a total of ninety and to install eight new delivery doors on the Structure for a total of thirteen. Seaboard proposes to landscape the site with arborvitae, Norway Maples and similar plantings. Upon completion the Structure will be within .2% of the permissible 70% maximum lot coverage. It will, however, be within such limitations.

7. On October 30, 1989, the Board filed a decision ("the Decision") with the Town Clerk denying the Application, finding that:

On the basis of evidence presented, the Board finds that the proposed addition to the building and consequent increase in parking area and vehicles using the site will be substantially more detrimental to the neighborhood than the existing nonconforming use . . .

8. Seaboard distributes approximately 175 products throughout Essex and Suffolk Counties. Seaboard, while primarily a distributor for Anheuser-Busch, has acquired several other smaller product lines, such as Guinness and Bass. There are presently twenty workers in the office portion of the Structure and six to eight workers in the warehouse portion. Seaboard will hire no new employees in connection with the Extension. There are approximately thirty-three routes run by trucks from the structure, no new vehicles are proposed in connection with the Extension.

Except for deliveries to Danvers Center and vicinity, all trucks are routed southeasterly on Collins Street to Sylvan Street where they cross into Peabody and access Route 114. Such routing minimizes any present traffic effect at the Collins/Centre Street - Holten Street intersection.

The purpose of the Extension is primarily to facilitate the storage of products presently being delivered to the Structure. The recent change in the size of beverage containers along with the introduction of new products has reduced the storage capacity of the Structure by more than fourteen percent.

9. After considering the only credible evidence before the Court, I find that the Extension would have no definable or significant adverse impacts on traffic service and safety at the Seaboard driveways, at neighboring driveway intersections, and/or on any Town of Danvers streets and/or intersections. During morning and afternoon peak hours present traffic at the driveway/Collins Street intersection is admittedly heavy, however, any increase in traffic attributable to the expansion will be minimal and as stated have no significant adverse impact on the traffic situation.

10. On October 18, 1989, the Traffic Advisory Committee for the Town of Danvers reviewed the Extension and gave its approval with the recommendation that stop signs and stop lines be placed at egress points of the Premises which recommendations are acceptable to Plaintiff.

There is no evidence as to how the increase in parking spaces will or may be detrimental to the neighborhood.

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.

Section 3.1 of the By-Law is, in all material aspects, identical to G.L. c. 40A, §6, which provides:

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.

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).

The parties agree that unlike some other jurisdictions, the Danvers By-Law does not require special permit standards to be applied in determining applications such as Plaintiff's for extension of a nonconforming use or structure.

It would also appear that, in addition to the finding set forth in 7 above, at least one member of the Board believed, incorrectly, that the addition would cause the structure to exceed the 70% permissible lot coverage in the district.

Moreover, the Board appears to have found the "use" to be more detrimental, where in fact the expansion is principally to a structure not to a use. Plaintiff emphasized there would be little change in use other than a minimal increase in trips during the respective peak hours and in the volume of goods handled. The proposed change of use is an increase of about 20% in storage capacity. In any event, the objectionable uses appear to focus on traffic and parking.

These circumstances are not unlike those of Texstar Construction Corp. v. Board of Appeals of Dedham, 26 Mass. App. Ct. 977 (1989), where the Appeals Court found that a board of appeals' decision to deny permits for structural changes on its finding that the requested changes would result in increased activity at the site and be detrimental to the neighborhood was not arbitrary, unreasonable, or capricious. Moreover, the Supreme Judicial Court has recently held, and as Defendants cite, not all applicants may be successful in obtaining a special permit, there is an essential distinction between a use permitted as of right and one subject to a special permit, Shrewsbury Edgemere Associates Ltd. Partnership v. Board of Appeals of Shrewsbury, 409 Mass. 317 , 320 (1991).

There are several differences in the above cases and the case at hand; in both Shrewsbury and Textstar, the by-law required a special permit for the changes sought and special permit standards to be applied by the Boards in reaching their decision. The Danvers by-law, as above stated, does not. This would in fact appear to be an instance as described in Shrewsbury at p. 321 and 322, where the extension of expansion of a nonconforming use and or structure is permitted solely upon the finding that such proposal shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

As stated, the Board based its decision on the conclusion that ". . . consequent increases in parking area and vehicles using the site will be substantially more detrimental to the neighborhood . . ." The reasons for this decision are not set forth as required by G.L. c. 40A, §15. On the findings before this Court, I cannot find the facts before me support such conclusion.

While the required finding is expressed by statute as a negative (i.e. not substantially more detrimental), the perceived detriment should be clearly stated by the Board. Furthermore, the statute requires the detriment to be substantial, not simply any conceivable detriment. I would also note that a use or structure may be objectionable, but not necessarily detrimental.

"Substantial" is defined as relating to substance, real, true, actually existing, considerable, etc. Webster's Intercollegiate Dictionary 1176 (9th ed. 1983) and Blacks Law Dictionary 1280 (5th ed. 1979).

I cannot find as a matter of law that the minimal traffic impact or the parking expansion on a screened lot abutted on two sides by industrial facilities is substantially more detrimental that the existing use. To be substantial such detriment must be identifiable and cause more than de minimis damage.

It may be that the Board anticipates the increase in area will eventually bring about an increase in use which may be clearly and substantially more detrimental. Any rights, however, acquired by Plaintiff hereunder are limited to the increase in size and use as specified and described by Plaintiffs. For instance, if allowed to increase its trips as indicated herein it is limited to such use and cannot substantially increase such use without further authority from the Board.

Accordingly, I find that the Board's decision exceeded its authority as it is based on legally untenable findings and it therefore must be and is hereby annulled. This matter is further remanded to the Board for further consideration of the facts before this Court and for a decision not inconsistent with the findings herein.

Judgment accordingly.