MISC 139048

June 11, 1992

Middlesex, ss.



By complaint filed November 22, 1989, pursuant to G.L. c. 40A, §17, Plaintiffs appeal a decision of the Watertown Zoning Board of Appeals ("the Board") denying their application for a special permit to construct an enclosed corridor ("the Corridor") connecting two nonconforming buildings located at 5 Bridge Street and 480 Pleasant Street in Watertown ("Locus"). Plaintiffs further request that the Court order the Board to grant their application and allow construction of the Corridor.

This case was tried on January 25, 1991, at which time the trial proceedings were transcribed by a court-appointed reporter. Seven witnesses testified and seven exhibits were introduced into evidence. The parties have also filed stipulations of Agreed Facts. The stipulations and 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. Plaintiffs, as trustees of the Aetna Mills Realty Trust, are owners of Locus, which contains approximately 4.892 acres of land and is shown on a plan entitled "Plan of Land in Watertown, Middlesex Co., Mass." dated August 28, 1989 ("the Plan") (Exhibit No. l). Locus is composed of two parcels, one of which fronts Pleasant Street, a public way running in an east-west direction ("the Pleasant Street Parcel") and the other which fronts Bridge Street, a public way running in a north-south direction ("the Bridge Street Parcel"). On each Parcel, there is a structure ("the Pleasant Street Structure" and "the Bridge Street structure").

Pleasant and Bridge Streets intersect to the east of the Pleasant Street Parcel and to the north of the Bridge Street Parcel ("the Intersection").

2. Plaintiffs purchased the Pleasant Street Parcel in 1981, and made a number of major improvements thereto. Sometime in 1989, Plaintiffs acquired the Bridge Street Parcel and Structure and have made improvements thereto, including the fire safety equipment.

3. To the west of the Pleasant Street Structure, there is a driveway ("the Driveway") which runs downward from Pleasant Street in a southerly direction to a large parking area to the south of said Structure and to the west and south of the Bridge Street Structure ("the Parking Area"). The Driveway and Parking Area are in the westerly and southerly portions of Locus.

4. At the Intersection, is a parcel of land and building ("the Hayden Structure") owned by M. Hayden, Inc. ("Hayden"). The Hayden Structure is bounded westerly and southerly by Locus. As further shown on the Plan, an alleyway ("the Alleyway") runs from Bridge Street westerly to the Parking Area, passing between the Hayden and Pleasant Structures and the Bridge Street Structure.

5. Plaintiffs' employees arrive through the Driveway and the Alleyway, both of which provide the only vehicular access to the Parking area. The Parking area has a capacity for approximately 600 cars. 460 employees, in two shifts, work for Plaintiffs. About 400 to 420 of them work from 8:00 a.m. to 4:00 p.m. and approximately one third of them park in the Parking Area. During morning peak hours, approximately 68 cars per hour use the Alleyway; during evening peak hours, approximately 101 cars per hour use the Alleyway.

6. At the time of trial, Hayden had, or may have had, a twenty-foot wide easement over the Alleyway extending into the Parking Area ("the Easement"). The Easement, if any, was extinguished beyond the westerly boundary of the Hayden Parcel by Agreement for Judgment in Land Court Miscellaneous Case Number 162130.

7. Locus is in an Industrial 3 zoning district under the Watertown Zoning Ordinance ("the Ordinance"). Section 5.04 of the Ordinance requires that there be a 20 foot front yard, a 25 foot side yard and a 30 foot rear yard setback for building lots such zones. The Structures are nonconforming under the Ordinance with respect to setbacks from lot lines. It appears from the Plan that the front yard setbacks, the easterly setback (sideyard) of the Pleasant Street Structure and the southerly (sideyard) setback of the Bridge Street Structure are nonconforming. The construction of the Corridor, discussed infra, would not create any additional violations of Section 5.04 and accordingly no variance would be required.

8. The Hayden Structure contains both a retail and a manufacturing establishment. Trucks make pick-ups and deliveries to the businesses on the south side of the Hayden structure via the Alleyway. While motor vehices are routinely parked on both sides of the Alleyway, most deliveries are made in small vans which have little difficulty turning around. At present, vehicles accessing the Hayden Structure loading platform usually enter from Bridge Street and exit via the parking lot onto Pleasant Street. If the Corridor wereconstructed, however, all access would be via Bridge Street and larger trucks, which are sometimes used, would be required to either back in from or back out into Bridge Street. This same situation, of course, would arise should Plaintiff's restrict the use of the Alleyway which they now appear to have the right to do. The Intersection is at times congested and trucks backing into or out of the Alleyway would likely cause additional traffic congestion.

9. The loading docks for the Pleasant and Bridge Street Structures are located in the southwest corner of each Structure and are marked in red on Exhibit No. 1. Some of the arriving trucks presently access those docks via the Alleyway.

10. The fire protection set up at Locus is excellent. There are three hydrants on Pleasant Street in the area of Locus. Both Structures are sprinklered. The Pleasant Street Structure also has three Siamese connection which allow the fire department to augment the water supply to the sprinkler system. There are also enunciator panels which aid in determining the location of a fire. Further, both the front and rear faces of both Structures would be accessible even with the Corridor. The Driveway is double-width and provides adquate access to fire apparatus.

11. On September 8, 1989, Plaintiffs filed an application ("the Application") for special permit with the Board to construct the Corridor across the Alleyway between the Plaintiff's Structures. The Corridor would be at ground level and measure approximately twelve feet in width and thirty-five feet in length and one story in height. The Corridor would, of course, block through passage, at least to vehicles, along the Alleyway. The Corridor is necessary to establish a sterile environment in which to transfer various articles between the Structures, a requirement of Plaintiff's business.

12. On October 25, 1989, the Board voted unanimously to deny the Application ("the Decision"), making the following findings:

1. Appropriateness of location:

Facts: A. Where access and design are concerned, the location of the connector on the site is an awkward one as it alters the flow of traffic by cutting off one potential access. B. It severs a throughway and forces all traffic for the Med-tech building to use the Pleasant Street access. C. The location of the addition will lead to limited fire access to certain portions of the buildings.

Finding: The specific site is not an appropriate location for such a use.

2. Impact to vehicle and pedestrian traffic:

Facts: The most immediate neighbor is the Hayden building on the corner of Bridge and Pleasant Street [sic]. To look at the building it appears [sic] to be part of the overall site. However, it will most definitely be affected since trucks may be greatly limited in their access. Where before they could drive in off Bridge Street and continue through to exit onto Pleasant Street, with the addition, the trucks would have a choice of backing out onto Bridge Street or trying to turn around in the space between the buildings. Both options are limited in feasibility. Backing out is completely unacceptable. The intersection is a poor one now and cannot handle the backing of trucks into the street. Turning around may in fact be impossible for larger trucks.

Finding: The use as proposed will adversely affect the neighborhood.

3. Impact to vehicle and pedestrian traffic.

Facts: A. The intersection at Bridge and Pleasant Streets is signalized but has poor circulation during peak traffic hours when certain businesses on Pleasant Street let out.

Finding: There would be a nuisance or serious [sic] hazard to vehicles.

4. Adequate and appropriate facilities:

Facts: Facilities to date have been provided for the existing building and are adequate and appropriate. This seemingly small change may impact the driveway access and as a consequence will change the flow of traffic to and from the site. Where currently some cars may enter and exit from Bridge Street, they would all be forced to use the Pleasant Street Access. It is not clear exactly what the impact would be on the traffic flow.

Finding: Adequate and appropriate facilities can not be provided for the proper operation of the proposed use.

Conditions contingent to findings

The Board is of the opinion that all conditions required for the granting of a Special Permit in accordance with Section 4.06(a) of the Zoning Ordinance of the Town of Watertown have not been met and that varying of the terms of the Zoning Code, as outlined above, will conflict with the intent of the Zoning Code.

In special permit appeals brought pursuant to G.L. c.40A, §17, the reviewing court hears the matter de novo, makes its own findings of fact and, on the facts so found, affirms the decision of the permit granting authority unless it is determined to be based on some legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeais of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979). Insofar as the court's review is limited to the legal validity of the permit granting authority's action 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 permit granting authority. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969).

G.L. c. 40A, §6 provides, in pertinent part:

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 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).

Section 4.06 of the Ordinance provides, in part:

Pre-existing non-conforming uses may be changed or extended and pre-existing non-conforming structures or buildings may also be extended as provided in Massachusetts General Laws Chapter 40A, Section 6, provided that no such change, extension, structural change or alteration shall be permitted unless there is a Special Permit Finding by the Board of Appeals that such a change, extension or alteration shall not be substantially more detrimental then the existing non­conforming use, structure, or building to the neighborhood;

Section 9.05 of the Ordinance provides, in part:

(a) A special permit shall be required for all uses and for all exceptions to dimensional regulations which are designated in this Zoning Ordinance as requiring a special permit before the Inspector of Buildings may issue a building permit or occupancy permit.

(b) The Board of Appeals shall not approve any such application unless it finds that in its judgement all of the following conditions are met:

(1) The specific site is an appropriate location for such a use, structure or condition;

(2) The use as developed will not adversely affect the neighborhood;

(3) There will be no nuisance or serious hazard to vehicles or pedestrians;

(4) Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

In the present case, the only nonconformities that exist are structural. Both the present and proposed uses of Locus are allowed. Neither party argues that the structural aspects of the Corridor will cause substantial detriment, but only that the potential change in traffic patterns resulting from the blocking of the Alleyway will be substantially more detrimental to the neighborhood. Clearly, the Board believed that the tenant of the Hayden Structure had the right to use the Alleyway as a throughway between Bridge and Pleasant Streets, apparently the owners of the Hayden Parcel felt the same. Such rights were terminated, however, as a result of Miscellaneous Case Number 162130 in this Court and accordingly, Plaintiffs have the right to block the Alleyway with a structure or without a structure by simply posting it.

I find that that is a substantial change in circumstances, one from which the Board may draw different conclusions. While the Board argues its decision is based in facts "as they are" rather than what might develop - i.e. Plaintiffs shutting off use of the Alleyway - it would seem a waste of everyone's resources to require such action by Plaintiffs before the Board reconsiders its action.

Further, it is noteworthy that the Supreme Judicial Court has found "it . . . unreasonable to impose on private individuals a disproportionate share of the cost of a public benefit," Triangle Center, Inc. v. Department of Public Works, 386 Mass. 858 , 864 (1982), and, in the present case, I find that Plaintiffs need not dedicate their private property to the resolution of traffic congestion on Bridge Street.

Accordingly, I remand this matter to the Board for further consideration with the understanding that through rights in the Alleyway exist only in Plaintiffs and that all other use is at sufferance and such use may be terminated by Plaintiffs at will.

Nothing herein, however, is to be interpreted as in any way restricting the rights of Watertown to adopt appropriate traffic regulations to control or further control traffic congestion on Bridge or Pleasant Streets.

Both parties submitted Post-Trial Memoranda and Requests For Findings of Fact and Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.