National Amusements, Inc. ("National"), the plaintiff, filed two applications for special permits from the City Council of the City of Woburn ("City Council"). In one application National asked for a special permit to construct a hotel on Lot 1 situated adjacent to Route 128 in Woburn in the County of Middlesex and off Route 38 (Main Street), and it appealed from the denial of its application for a special permit and in addition to substantive reasons alleged in the complaint that the City Council never voted to deny this application although it had filed a notice of decision with the city clerk. On appeal, however, National has waived, at least for the present, its desire to construct a hotel on the site. The second case, Miscellaneous Case No. 137292, is an appeal by National from the City Council's denial of its application for a special permit to expand on Lot 2 the existing use of the premises as a cinema by the addition of four theatre screens and 980 additional seats and to construct a shopping center thereon. During the course of these proceedings, National's original application for a special permit to construct a shopping center of 99,500 square feet was scaled back to one encompassing 88,000 square feet and the hotel, as mentioned above, was eliminated. The City Council still refused to grant a special permit.
The defendants in this action are the nine members of the City Council in their capacity as aldermen.
A trial was held at the Land Court on September 18 and 19, 1991 at which a stenographer was appointed to record and transcribe the testimony. At the trial the plaintiff called as witnesses William Towey, senior vice president of operations of National, James A. Major, senior vice president and chief civil engineer of Allen & Major Associates, Inc., a successor to Allen, Demurjian, Major & Nitsch, Inc., Robert Vanasse, of Vanasse and Associates, Incorporated, a former principal in Vanasse, Hangen, Brustlin Associates, and Michael Dever, a former member of the board of aldermen of the City of Woburn. The City called no witnesses. There were twenty-one exhibits introduced into evidence together with three chalks, all of which are incorporated herein for the purpose of any appeal.
The parties entered into an agreement incorporated in a joint pre-trial memorandum as to certain facts, they having been admitted by the Council in its answer to the complaint.
On all the evidence including as to those set forth in paragraphs 1 to 10, the agreement of the parties, I find and rule as follows:
1. At all times material hereto, National has been the owner of a 37.3 acre parcel of land (the "site") in Woburn, Massachusetts. The site currently is used as the location of the Showcase Cinema, a 36,334 square foot building containing eight movie screens, with a seating capacity of 2,583 seats. Parking for the cinema is provided on the site and complies with the Zoning Ordinance.
2. In February 1989, National filed with the Woburn Planning Board a preliminary subdivision plan showing the subdividing of the site into three lots, designated Lots 1, 2 and 3. On May 9, 1989, the Planning Board approved the preliminary subdivision plan.
3. Following the approval of the preliminary subdivision plan, National caused to be prepared a definitive subdivision plan (the "Plan") entitled "Definitive Subdivision Plan for Showcase Center, in Woburn, MA; Owner/Applicant National Amusements, Inc., 200 Elm Street, Dedham, Mass. 02026 prepared by Allen, Demurjian, Major & Nitsch, Inc., Engineers, Architects and Land Surveyors, 806 Massachusetts Avenue, Cambridge, MA 02139, Scale 1" = 300', dated June 7, 1989.", the Plan was approved by the Planning Board on June 27, 1989 and was recorded in Middlesex Registry of Deeds in Book_____, Page_____. [Note 1]
4. Lot 1 on the Plan contains approximately 2.3 acres and is located in a B-I Business Interstate Zoning District. Lot 2 contains approximateiy 22.1 acres and is also located in the B-I Business Interstate Zoning District. Lot 3 contains approximately 12.9 acres and is located in an R-I Residential Zoning District.
5. On or about March 13, 1989, National filed with the Council two petitions for special permit: a petition seeking to construct a 125 room hotel on Lot 1 (the "hotel application") and a petition seeking to expand the existing Showcase Cinema by adding four theatre screens with 980 additional seats and to construct a shopping center on Lot 2 (the "Cinema Expansion and Shopping Center application").
6. In connection with both applications, National submitted a site plan (the "Site Plan") prepared by its engineers/architects, Allen, Demurjian, Major & Nitsch, Inc. The Site Plan was originally dated February 23, 1989 and during the course of the public hearings was revised on May 23, 1989, August 2, 1989 and August 8, 1989.
7. Under the Zoning Ordinance, a hotel is allowed in a B-I Business Interstate District only upon allowance of a special permit. Under the Zoning Ordinance, movie theatres and a shopping center are allowed in a B-I Business Interstate District only upon allowance of a special permit. Both applications depict development which satisfies all the dimensional and parking requirements of the Zoning Ordinance.
8. From May 16 through August 29, 1989, the Council held public hearings and public meetings on the two special permit applications.
9. As part of its submittals to the Council, National proposed a variety of amenities to be included in the development of the Site. The proposals addressed conditions both on and off Site and included:
a. the creation of buffer zones between the proposed development and abutting residential properties;
b. extensive landscaping and screening;
c. construction of sidewalks;
d. road improvements on Middlesex Canal Park Road;
e. limitation on the future development of the Site;
f. limitation on the hours of operation;
g. conditions on the issuance of building permits;
h. creation of open space well in excess of the requirements of the Zoning Ordinance;
i. the installation of a traffic control signal at the intersection of Middlesex Canal Park Road and Main Street;
j. increasing the pavement width of Main Street;
k. reconstructing the turn radius on Middlesex Canal Park Road;
1. improvements to the water and sewer system.
10. As part of its submittals to the Council, National submitted a Traffic Impact and Access Study, prepared by Vanasse, Hangen, Brustlin, Inc. as well as a list of fifty-four (54) conditions (eight relating to the Hotel and forty-six relating to the Cinema Expansion and Shopping center) to be imposed as limitations on National's development of the Site.
11. The notice of the decision of the City Council denying the special permit for the construction of four additional auditoriums and a shopping mall on the locus set forth as the reasons therefore that "1) Traffic problems created by the increased daily trips going into and coming out of the single access road would have a serious detrimental effect on the area; 2) Facts do not support the requirements of Section 11.5" (Exhibit No. 14).
12. Section 11.5 sets forth the following conditions which an application must meet:
1. Satisfactory provision and arrangement of ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control and access in case of fire or catastrophe. If traffic due to the proposed use is projected to exceed the capacity of existing roadways, a service road or divided entrance drive may be required by the City Council.
2. Adequacy of the capacity of water, sewerage and drainage facilities to service the proposed use.
3. Adequate offstreet parking and loading areas where required with particular attention to the items in Section 11.5.1 and the noise, glare, or odor effects of the proposed use on adjoining properties and properties generally in the district.
4. Satisfactory provision of refuse collection, disposal and service areas, with particular reference to impacts on adjacent uses.
5. Exterior lighting with reference to glare, traffic safety, and compatibility and harmony with properties in the district.
6. Yards and other open space and landscaping are provided as required and reasonable steps have been taken to insure the privacy of adjacent existing uses.
7. The proposed use is in general compatibility in scale and character with adjacent properties and other property in the district.
8. The proposed use or structure will not be adverse to the general purposes of this ordinance.
9. The Council shall also impose such additional conditions of those specified in this Ordinance as it finds reasonably appropriate to safeguard the neighborhood or otherwise serve the purposes of this Ordinance, including but not limited to the following: Front, side or rear yards greater than the minimum required by this ordinance, screening, buffers, or plantings strip, fences, or walls, as specified by the Council modification of the exterior appearance of the structure; limitation upon the size, number of occupants, method and time of operation, or extent of facilities; regulation of number and location of drives, accessways, or other traffic features, and off-street parking or loading, or other special features beyond the minimum required in the Ordinance.
13. The single access to the locus over Middlesex Canal Park was imposed at the time of the site's original development by the plaintiff's predecessor in title. However, there is no other possible access since it is bounded northerly by Route 128, southwesterly and northwesterly by residentially zoned land and Lot 3 on the subdivision plan which belongs to National but is residentially zoned and by property occupied by the Ramada Inn. National's residentially zoned property adjoins Lowell Street, but it would require a use variance to cross Lot 3 even if the existing wetlands thereon did not interfere and the Woburn Zoning Ordinance bars such relief. Accordingly National is limited in its access although it would be possible to enlarge the existing roadway if that should be considered desirable.
14. National has proposed as its own expense in order to mitigate the existing traffic problems on Route 38 at its intersection with Middlesex Canal Park Road to construct many improvements. There are scenarios for three different proposals to improve the public way which include providing a left turn lane at the exit from the rotary where Route 38 and Route 128 meet, the reconstruction of sidewalks and installation of street lighting in portions of Route 38 and Middlesex Canal Park Road, realignment of the approach to the rotary at Route 128 and Route 38, improving the access to Fisher Terrace, the widening to four lanes within the existing right of way of a portion of Route 38, the installation of a traffic signal with a pre-empt for emergency vehicles at the intersection of Middlesex Canal Park Road and Route 38 and the provision of turning lanes within the widening of Middlesex Canal Park Road and Route 38. The various alternatives present different proposals incorporating some or all of these changes.
15. The level of service for left turns from Middlesex Canal Park Road during the evening peak hour was E and during the cinema peak hour was F. The exhibits indicate variations on the level of service depending on whether the intersection is signalized or not in the hours in question. Even with a no build scenario the plaintiff's experts testified, and I so find, that the level of service would worsen as general building in the neighborhood continued or traffic multiplied as it has done in the past. With the mitigation proposed by National service would be improved. If the improvements and mitigation were all made and the building sought by National was permitted, the level of service and safety would improve since the installation of a signal would have a marked effect on the current traffic problems.
16. The police chief through the safety officer made fourteen recommendations, twelve of which were accepted by National. The other recommendation involved improvements on land of a third party which National was agreeable to making if approval could be obtained.
17. The conditions for special permits require information as to water, sewer and drainage facilities, and there was expert testimony as to these areas and compliance with existing Department of Environmental Protection regulations and a current moratorium.
18. The lighting which is planned for the parking lot and the shopping center has been designed to avoid glare. Helpful also in this is the creation of a green buffer zone to avoid any nuisance to the abutting residences.
19. The refuse collections are to be arranged at such times during the day that they will not be offensive to the neighborhood.
20. Traffic in the immediate highway system has decreased by approximately 15% since the decision of the City Council. Movie attendance has also decreased so that changes in the economy and in the employment situation in high tech industries in the neighborhood may have an effect on the question of the issuance of a special permit. For example there will be less deleterious effect on the traffic under existing circumstances.
21. The direction that the traffic leaving the site will flow if both the size of the movie audience is increased and the shopping center added is interesting. In the expert's opinion most of the traffic will move from the site in the southerly direction toward the center of Woburn. There already is a supermarket on the north side of the rotary, and some of the customers in Woburn will be intercepted by the proposed supermarket on the locus. These basically are not new trips, but merely a redirection of traffic which would already be on the highway. The change in the attendance at the theatres also suggests that not all of the customers for the additional four auditoriums will be persons who have not previously attended the locus or that the business will be increased over the 1989 levels.
The evidence heard during the trial is to apply equally to both cases, but National has not pressed the appeal on the hotel application, and I therefore have taken no action on it. Should this matter become viable in the future, then either the present appeal can be pursued or a new application filed with the City Council. The parties concentrated at the trial on the application for the shopping center and the four additional movie auditoriums with an increase in parking of 980 seats, and it is to that appeal that this decision is directed.
The rule concerning the grant of special permits is well known. In MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-516 (1976) the Supreme Judicial Court said that the grant or denial of a special permit cannot be disturbed unless the decision of the granting authority is legally untenable or unreasonable, whimsical, capricious or arbitrary. The same rule was applied by the Court in considering the historic Nantucket district and the standard applicable to decisions thereunder. Gomley v. Board of Appeals of Nantucket, 371 Mass. 718 (1977). While the statute calls for a detailed statement of the reasons of the board, the courts have reiterated that the refusal to grant a special permit does not require as detailed findings as a grant. Schiffone v. Zoning Board of Appeals of Walpole, 28 Mass. App. Ct. 981 (1990). It has often been said that no one is entitled to a special permit in that whether to grant the permission or not lies with the board of appeals, not the judge. This then is reiterated both in Gomley, supra, and Subaru of New England, Inc. v. Board of Appeals of Dedham, 8 Mass. App. Ct. 483 (1979).
The decision of the City Council must be reversed and the matter remanded to the Council since the improvements which National has agreed to make, the distinguishing factor in a comparison of the factual situation here with that in V.S.H. Realty, Inc. v. Zoning Board of Appeals of Plymouth, 30 Mass. App. Ct. 530 (1991) would improve the existing traffic problems at the site and improve traffic flow and safety. Inasmuch as the determination as to whether the special permit should be issued for the expansion of the Showcase Cinema and the construction of a shopping center rests with the City Council, I will remand this matter to the Council for its decision based on my findings and the applicable law as set forth herein. This Court will retain jurisdiction. So far as the appeal from the denial of the right to construct a hotel is concerned, I take no action on that and will either assign it for a hearing specifically thereon at a future date or dismiss the appeal, whichever the parties request. If there is no agreement as to this, then the matter may be marked up for argument.
The plaintiff has filed requests for findings of fact and rulings of law, but having made my own at length I am not ruling individually on those of the party.
[Note 1] The subdivision plan in fact was filed for registration with the Land Court as Plan No. 24503D on January 23, 1990.