MISC 141347

July 23, 1991

Norfolk, ss.



This is an appeal pursuant to G.L.c. 40A, §17 from a decision of the Medfield Zoning Board of Appeals (the "Board") dated January 10, 1990 relating to proposed modifications to service station premises ("Locus") on Spring Street, Medfield.

There was a trial on May 9, 1991, at which no stenographer was present. Eleven photographs were introduced into evidence which are incorporated herein for purposes of any appeal. Five other photographs, showing a Texaco service station at another location, were presented as chalks. Three witnesses testified: Randall D. Eaken, operator of the service station at Locus and a franchisee of plaintiff; Bruno Campen, a traffic expert; and Robert F. Sylvia, chairman of the Board. The parties stipulated as to most of the facts in the case and also stipulated that two affidavits (those of Messrs. Alan A. and George Kingsbury) are admitted into evidence.

On all the evidence, I find and rule as follows:

1. The plaintiff, Star Enterprise (a joint venture of Texaco and Aramco), is the owner of Locus.

2. The defendants are the current members of the Board.

3. On or about October 12, 1989 plaintiff applied to the Board for relief from the Medfield Zoning By-Law to construct a canopy over the pump area of the gas station, an addition to the existing building.

4. On or about November 8, 1989 the Board held a public hearing on plaintiff's application.

5. On or about January 10, 1990 the Board issued a written decision unanimously denying the relief requested by plaintiff.

6. Locus consists of approximately 37,226 square feet of land with approximately 186 feet of frontage on Spring Street (State Route 27) in Medfield.

7. Locus is situated in the RU (residential) Zoning District.

8. Locus is abutted on either side, and on the westerly side of Spring Street across the street from Locus, by residential properties.

9. Spring Street constitutes the primary means of travel between Sherborn, Natick and Framingham to the north of Medfield and Walpole to the south. The particular portion of Spring Street which is abutted by Locus is situated approximately a quarter mile to the south of Medfield Center.

10. Spring Street in the vicinity of Locus is a heavily travelled, two-lane asphalt road which is in generally good condition.

11. The residential area surrounding Locus consists primarily of older single-family homes, some of which have been converted to multi-family use. A small number of condominiums have been constructed in recent years in the neighborhood. The homes in the area are generally well maintained, and the neighborhood has a distinctly residential flavor, Locus being the only commercial use to directly abut Spring Street.

12. There are commercial and industrial uses to the rear of Locus which access Spring Street through driveways, but they are not readily visible from the road. The nearest commercial uses to Locus (other than to the rear of the property) are located in a business zone abutting Main Street approximately a quarter mile to the north of Locus.

13. An active railroad track is located approximately 20 to 30 feet from the rear lot line of Locus. The rear lot line of Locus is approximately 85 feet from the rear of the existing filling station building located on the property. The vacant rear portion of the lot and the railroad tracks beyond are obscured from Spring Street by vegetation and fencing. Various industrial and commercial uses are located to the east of the railroad track abutting Park Street.

14. Locus has been used as a filling station for approximately 57 years. In 1972 a predecessor of plaintiff, which owned the site at that time, sought a variance from the Board in order to permit demolition of the existing antiquated filling station structure and the construction of a modern filling station at the site. That variance was granted on May 8, 1972 (Decision Number 217), subject to 14 conditions. Condition Number 14 of that decision states:

That this variance be granted to the petitioner and is not transferable to other parties without prior Board approval.

15. Demolition and construction was completed in accordance with Decision Number 217 in 1972, and Locus has been occupied continuously since completion of construction by a Texaco gasoline and service station.

16. The existing service station is a well-maintained, well-landscaped site with two gas pump islands, approximately 24,000 gallons of underground gasoline storage and a two-bay service station. The front roof line of the existing station is approximately 13 feet above ground level.

17. The station, as currently operated, provids both full­service and self-service gasoline pumps as well as inspection and vehicle repair facilities. Approximately 80% of the gas sold at the station is sold to self-service customers who pump their own gas.

18. If relief is granted, plaintiff proposes to construct a metal framed canopy with an asphalt shingled roof. It will be 27 feet in width and 50 feet in length, and will be constructed with a roof line which is consistent with that of the existing station. It will extend from the front of the existing building in a westerly direction toward Spring Street. The canopy will not bear any signs or logos.

19. At its closest point, the canopy would be located 20 feet from the front lot line. It would comply with all current dimensional requirements of the Medfield Zoning By-law.

20. The existing service station at Locus consists of a building approximately 50 feet in length and 27 feet in width with an L-shaped extension to the southerly side of the building which is approximately 14 feet in width and 20 feet in length.

21. The existing service station occupies approximately 1,630 square feet of surface area. The proposed canopy will cover another 1,850 square feet, some of which is presently occupied by two existing service islands.

22. The addition of the canopy is part of an overall upgrade of the station facility, which will include the installation of new underground gasoline tanks, new pumps and a refurbished service island area.

23. Plaintiff has suggested that the 1972 variance was unnecessary, since there was a service station on Locus since well before the adoption of zoning in Medfield. If that suggestion is accepted, one would be led to consider whether the demolition and new construction in 1972 needed any kind of zoning relief, under the tests set forth in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). From what one can gather as to the situation in 1972, it appears that at least a finding under G.L. c. 40A, §6 would have been necessary. The stronger point is that it is too late in the day to second guess the process undertaken in 1972. The parties then were content that a variance was necessary and the case should stand in that posture.

24. Since the legality of the current station is based on a variance, Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 (1990) comes into play. The facts there are like those here: Petitioner sought to add further space to his commercial building in a residential zone. The existing commercial use was based on variances, but no variance could be obtained for the expansion because the Town had subsequently passed a ban on use variances in the locality. Petitioner sought to legitimize the expansion by a special permit based on a local version of G.L. c. 40A, §6. The Appeals Court upheld a Superior Court annulment of the special permit, reasoning that a use based on a variance was not ''non-conforming" within the meaning of Section 6. Kass, J. summarized by stating: "It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use." (at p. 531).

25. Thus, a Section 6 finding was not possible in this action. Even had it been, the decision of the Board that the construction of the canopy would be substantially more detrimental to the neighborhood than the existing use was not unreasonable, whimsical, capricious, arbitrary or legally untenable. The canopy would in some senses more than double the commercial building mass on the site in this essentially residential neighborhood.

26. Plaintiff sought variances, in the alternative. The Board was correct in its finding that there are no circumstances relating to soil conditions, shape or topography which would support a variance. The Board's other findings as to the requested variances (adverse to plaintiff) are closer calls but they are supportable legally and within the bounds of reasonableness. The foregoing is true whether the variance be regarded as an amendment of the 1972 variance or as a new variance (plaintiff suggested both).

27. Plaintiff suggests that the Board's decision is essentially based on aesthetic considerations, which plaintiff states are not a proper basis for the decision. I need not reach the propriety question because the Board's judgement was not primarily aesthetic. Consideration of a two-fold expansion of commercial structural mass in a residential district is more than an aesthetic matter.

28. The Board's finding that condition 14 to the 1972 variance (non-transferability) is null and void, is correct.

29. The decision of the Board is upheld.

Judgement accordingly.