BURGER KING CORPORATION vs. MICHAEL FAHERTY, MARTIN GORDON, ROBERT HANNA, JOHN KEENAN, and ALLAN MACDONALD, as they are members of THE QUINCY ZONING BOARD OF APPEALS, and MATTHIAS J. MULVEY.

By complaint filed July 11, 1990, pursuant to G.L. c. 40A, §17, and amended on August 28, 1990, Plaintiff appeals a decision of the Quincy Zoning Board of Appeals ("the Board") upholding the Quincy Building Inspector's determination that the construction of a drive-thru window, and related alterations, at a Burger King restaurant ("the Restaurant") located on a nonconforming lot in Quincy ("Locus") requires a building permit and denying Plaintiff's request for a determination that adding drive-thru service at Locus is not substantially more detrimental to the neighborhood than the present restaurant use. Plaintiff further requests costs, including reasonable attorneys fees.

This case was tried on October 10, 1991, at which time the proceedings were transcribed by a court-appointed reporter. At trial, the parties submitted a Stipulation of Uncontested Facts. Two witnesses testified and six exhibits were introduced into evidence. All of 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 is a Delaware corporation doing business in Massachusetts and is the owner of Locus which is a corner lot, located at 670-4 Adams Street and 5-17 Robertson Street in Quincy. It is also Lot Number 33 on Quincy Assessor's Plan Number 4076.

2. Locus is in a Business "B" Zoning District which in this instance consists of a strip of businesses paralleling Adams Street in varying depth being approximately 230 deep at Locus. Residential Districts abut the "B" Zone.

3. The Restaurant is the oldest Burger King in New England, having been built around 1963. On or about January 27, 1990, Plaintiff altered the Restaurant to allow for drive-thru service. The alterations ("the Alterations") included the replacement of a fixed window pane with a sliding glass pane, the attachment of a menu board with a microphone and speaker to an exterior wall, and replacing a sign panel on a free-standing sign which read "Home of the Whopper" with an identically-sized panel that reads "Drive-Thru Window." Vehicles using the drive-thru produce no unusual nor unreasonable noises.

4. A drive-thru window is a permitted use in a Business "B" District.

5. The rear lot line of Locus borders a residential zone. Locus is nonconforming in that to comply with parking requirements it does not contain the buffer zone between its parking lot and the abutting lots and streets as is required by Article VII, §73 (5) of the Quincy Zoning Ordinance ("the Ordinance"). That Section requires that parking facilities be at least ten feet from a street or lot line and in addition Article VII, §73 (4) provides, in pertinent part:

Parking facilities for more than five (5) automobiles shall be screened, . . . , by plantings which shall be maintained in a healthy growing condition. Such plantings shall not be less than two and one-half (2 1/2) feet in height and shall not be less than fifty (50) percent opaque when viewed from directly in front.

6. On or about February 27, 1990, the Quincy Building Inspector ("the Inspector") notified Plaintiff that building permits are necessary for the Alterations, under 780 CMR 113.0 of the State Building Code and Article VI, §62 and Article I, §12 of the Ordinance and that in addition it would be necessary to obtain a finding from the Board, pertaining to the non-detrimental effect of an expansion of nonconforming uses.

7. On or about March 25, 1990, Plaintiff appealed the Inspector's decision to the Board contesting the need for building permits for the Alterations and, in the alternative applied for a finding under Article VI, §62(2) of the Ordinance and G.L. c. 40A, §6.

8. On May 22, 1990, the Board denied Plaintiffs appeal, which denial is evidenced by a decision ("the Decision") filed on June 25, 1990, with the Quincy City Clerk. The Decision states, "[t]he Board of Appeals is of the opinion that to grant the Variances [Note 1] here requested would be detrimental to the public good and would nullify and substantially derogate from the intent or purpose of the Zoning Ordinance."

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, 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.

In the present case, Locus is nonconforming in that it contains no buffer zones as required by the Ordinance. The structural changes made to the Restaurant and sign on Locus, both of which are conforming, clearly have no effect on the nonconformity.

Defendants' argument appears to be that the nonconformity would be effected by the use of Locus for drive-thru purposes. As mentioned above, a drive-thru is a permitted use on Locus, albeit with the required buffer zone. While the drive-thru window is an allowed use, it is allowed only with a buffer zone, which I assume is also required for the pre-drive-thru use. Accordingly, there appears to be a change in nonconforming use, although not a substantial one.

Article VI, §62 (2) requires a finding by the Board that an alteration shall not be substantially more detrimental than an existing nonconforming use to the neighborhood:

for any alteration of a building when the same would amount to reconstruction, extension or structural change, and to any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent.

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).

In the present case, inasmuch as the Restaurant is conforming there has been no extension or alteration of a nonconforming structure, nor is the use substantially different from the use prior to the Alterations. While the Board did not find that the drive-thru use would not be substantially more detrimental, there is no credible evidence that Plaintiff's use of the Restaurant for drive-thru purposes has or will create any unreasonable noise or traffic or in any way have a measurable detrimental effect on the neighborhood. Clearly, the Court cannot substitute its judgment for that of the Board, the Board's decision, however, must be based upon credible facts which support that decision. Conjecture and speculation are not sufficient. Moreover, the nonconformance with the Ordinance must have some relationship to the detriment. Accordingly, I must find that the Alterations and use of Locus for drive-thru purposes are not substantially more detrimental to the neighborhood than the pre-drive-thru operation.

Considering that the required buffer zone is ten feet wide and with a minimum of 2 foot high plantings which are to be 50% opaque, the reason therefor would appear to be for aesthetics rather than for noise suppression, it may well be possible should Plaintiff wish, to achieve the same results by fencing although this decision does not require it.

In summary, I find that the Board has exceeded its authority in upholding the decision of the Building Inspector and in its failure to make appropriate findings as to the detrimental affect of the change in use which effects, I find to be de minimis at most, and accordingly find that a permit under Article I, §12 of the Ordinance is not required.

Plaintiff has submitted Requests for Findings of Fact and Rulings of Law. I have not attempted to rule on each of Plaintiff's 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.