WHITNEY DEVELOPMENT CORP. vs. WILLIAM L. NICHOLSON, PATRICIA FRAIZER, ALBERT R. EDSON, ROBERT PARISEAU and THOMAS GUIDI, as they constitute the BOARD OF APPEALS OF THE TOWN OF DANVERS.

Plaintiff, appealing under G. L. c. 40A @17, seeks to annul a decision dated November 4, 1991, #EE-2504 (the "1991 Decision") of the Zoning Board of Appeals (the "Board") of the Town of Danvers (the "Town") refusing to modify earlier decisions (the "1988 Decisions") of the Board (case 156328).

A trial was held on March 27, 1992. A stenographer was appointed to record and transcribe the testimony. The parties submitted a "Stipulation of Documents" listing, and attaching copies of, 20 documents, which they agreed were admitted into evidence. An Exhibit 21 was admitted during the trial. All 21 documents are incorporated in this Decision for purposes of any appeal.

The only witness was Charles Whitney, a principal of Plaintiff. I took a view of the property on the day of the trial.

The parties also submitted a "Statement of Agreed Facts"in this case and a companion case (Miscellaneous case 159484); I attach a copy of the "Statement of Agreed Facts" to this Decision and incorporate its contents in this Decision. I also find and rule as follows:

Plaintiff has also appealed a decision of the Danvers Planning Board as to the site plan involved at this property (156484) but by agreement of Counsel consideration of Planning Board aspects of this dispute is deferred pending resolution of the zoning aspects.

The variance which Plaintiff sought to modify is a variance to construct the building on Locus with less landscaping and less parking than would have been required under the the By­Law (Decision AA-2155, Exhibit 7); that variance was granted with the plan (the "Original Plan") at Exhibit 8. The plan which Plaintiff presented to the Board (the "New Plan") is Exhibit 17. The 1991 Decision, denying the modification, is Exhibit 20. The differences between the two plans are set forth in paragraph 23 of the "Statement of Agreed Facts."

At their pre-trial conference and at trial, Counsel for the Town stipulated that Plaintiff need not address the "uniqueness" requirement in G. L. c. 40A §10 (circumstances relating to soil conditions, shape or topography) so that the parties need address only the substantial hardship and substantial detriment tests.

A literal enforcement of the Original Plan would involve substantial financial hardship to Plaintiff. A significant portion of Plaintiff's building has remained unoccupied for about two and one half years, with attendant drain on Plaintiff's resources for carrying costs. Because of constraints imposed by arrangements with Shell Oil Company, Plaintiff appears unlikely to be able to move forward with its project unless the New Plan is allowed.

All but one of the differences between the Original Plan and the New Plan are insubstantial enough so that the refusal of the Board to grant modification was arbitrary. I am in some small measure relying on the availability of additional landscapping on the Kappy's Liquor property, Exhibit 21 and the Board may wish to make that a condition of any approved modification.

One difference between the Plans gives me more concern, the change in the traffic flow at the entrances. The Original Plan showed entrances at both ends of the Andover Street frontage; the easterly entrance was one-way inbound and the westerly entrance was one-way outbound. The same entrances show on the New Plan but each becomes two way.

The decision of the Board contains no findings at all and therefore it is impossible to know whether the issue of the entrances was of any significance to the Board or whether accomodation of some sort could be reached on that issue if the Board feels it is relevant. The tortured history of this case cries out for constructive thinking. I remand this case to the Board for reconsideration in light of this Decision. I will retain jurisdiction.

Plaintiff suggests that the landscaping and parking areas at issue here are structures and that its proposal can be validated under G. L. c. 40A §6 as a prior non-conforming use or by a finding under §6. I have great trouble with the idea that a parking area is a structure, but even if it were, Plaintiff invokes §6 out of context. If you follow Plaintiff's idea out, what Plaintiff is really saying is that it never needed a variance to begin with, and that is not the case. Plaintiff could have stayed with its existing buildings but instead proposed new construction which did not conform to parking and landscape requirements, thus requiring variances. To seek to modify those variances through the vehicle of §6 is to violate the injunction of the Appeals Court against using a variance as "a launching pad for expansion as a nonconforming use..." Mendes v . Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , at 531 (1990), further appellate review denied, 407 Mass. 1103 (1990).

This case is remanded to the Board in accordance with this Decision. I retain jurisdiction.

MISC 156328 / 159484

WHITNEY DEVELOPMENT CORP. v. WILLIAM NICHOLSON, PATRICIA FRAIZER, ALBERT R. EDSON, ROBERT PARISEAU and THOMAS GUIDI, as they constitute the BOARD OF APPEALS OF THE TOWN OF DANVERS v. ROBERT A. SZYPKO, PATRICIA TOOMEY, PETER C. DIGANGI, ROBERT ARNOLD and MARK J. MCDERMOTT, as they constitute the PLANNING BOARD FOR THE TOWN OF DANVERS.

STATEMENT OF AGREED FACTS

1. The plaintiff (hereinafter "Whitney Development") is a Massachusetts Corporation with a principal place of business at 153 Andover street, Danvers, Massachusetts.

2. Whitney Development has been authorized by Charles E. Whitney and Phillip I. Ciolfi, as Trustees of the Crane Brook Realty Trust, to make applications for zoning relief regarding a portion of the premises located at 156 Andover Street in Danvers (hereinafter "the Locus"). Lease rights to the premises were assigned to the said Whitney and Ciolfi, Trustees, by an Assignment of Lease from Charles E. Whitney and Phillip K. Ciolfi, Lessees, dated October 7, 1987, and recorded with Essex South District Registry of Deeds in Book 9305, Page 221.

3. Charles E. Whitney and Phillip K. Ciolfi are the Lessees under a Ground Lease from Hugh J. Gilbert and Lorraine Gilbert dated November 7, 1985, amended October 31, 1986. The term of said Ground Lease is eighteen (18) years, with options to extend for two periods of ten (10) years each, for a total potential lease term of thirty-eight (38) years.

4. On February 22, 1988, the Danvers Board of Appeals granted a variance to Charles E. Whitney and Phillip K. Ciolfi in order to allow the construction of a mixed use retail and office building on the locus, with less landscaping and parking spaces than required under the Zoning By-law (Docket No. BB-2155). The variance was granted in accordance with a plan entitled "Site Plan, 156 Andover St., Danvers, MA, Property of Hugh & Lorraine Gilbert" by Hancock Survey Associates, Inc., dated February 12, 1986, revised March 20, 1986, March 26, 1986, April 1, 1986, February 12, 1988 and February 19, 1988 (the "original plan") .

5. The "original plan" showed certain landscaping on property of the easterly abutter to the locus, Ventron Corp. One of the conditions of the variance was execution and recording of a document establishing the right to maintain the landscaping on the Ventron property.

6. On April 22, 1988, Charles E. Whitney and Phillip K. Ciolfi applied to the Board of Appeals for modification of the variance in order to permit construction of the proposed building in accordance with a revised plan: the site plan revised through 2/19/88 and six (6) sheets of drawings by DeMarco-Jarek Partnership, Architect s & Planners, dated April 6, 1988.The Board voted to grant the requested modification on May 23 , 1988 (Docket No. BB-2200).

7. On July 1, 1988, a document entitled "Agreement for Landscaping and Maintenance made this 21st day of June 1988" between Charles E. Whitney and Phillip K. Ciolfi and Morton Thickol, Inc., successor to Ventron Corporation, was filed with the Essex South Registry District Land Registration Office as Document No. 236854 and noted on Certificate of Title No. 27622.

8. On March 22, 1988, site plan approval for the proposed building was granted by the Danvers Planning Board.

9. On August 10, 1988, the Danvers Building Inspector issued a general building permit for the foundation and footings of the proposed building on the locus. Full construction was authorized on December 14, 1988. The exterior of the building was completed on or about July of 1989.

10. On July 19, 1989, a building permit for interior fit-up for one tenant, Jenny Craig Weight Loss Center, to occupy 2,000 square feet, was issued.

11. At the time the July 19, 1989 building permit was issued, the site plan provisions of the Danvers Zoning By-law prohibited the issuance of an occupancy permit prior to 1) verification of compliance with any conditions of site plan approval, or 2) the posting of a bond to ensure completion of all site improvements.

12. On September 26, 1989, the Danvers Planning Board voted to accept a passbook, in the amount of $19,200.00, as security for completion of the improvements shown on the approved site plan.

13. on October 4, 1989, the Danvers Building Inspector issued a Certificate of Occupancy under the State Building Code for the Jenny Craig unit of the building. At that time, neither the parking areas nor landscaping shown on the approved site plan and the plan upon which the variance was conditioned had been completed.

14. On December 28, 1989, a second building permit for tenant fit-up, for "Laura's," was issued. However, by letter dated February 2, 1990, the Building Inspector denied a request for a Certificate of Occupancy on the grounds that the locus, specifically landscaping and parking, was not in compliance with the plan on which the variance had been granted.

15. On January 9, 1990, Whitney Development submitted an application to the Danvers Board of Appeals to modify the variance by allowing construction in accordance with a revised plan. The Board held a public hearing on February 5, 1990, at which time Robert A. Munroe, attorney for the Gilberts, appeared and stated that the Gilberts, as owners of the locus, did not consent to the application. The Board voted to dismiss the application for lack of authorization from the owners, Hugh J. Gilbert and Lorraine C. Gilbert (Docket No. DD-2384).

16. On or about June 2, 1990, Mr. Whitney and Mr. Ciolfi installed an asphalt berm and certain landscaping in the center of the parking lot on the locus.

17. By letter dated June 11, 1990, a representative of Shell Oil Company, also a lessee of a portion of the premises at 156 Andover Street under a lease from the Gilberts dated May 5, 1970, notified Mr. Whitney that the said berm and landscaping violated the lease between Shell and the Gilberts. Specifically, Shell asserted that the berm and landscaping constituted prohibited obstructions of an easement area, and directed that they be removed. On or about June 15, 1990, Charles E. Whitney and Phillip K. Ciolfi filed a Verified Complaint and Application for Temporary Restraining Order against Shell Oil Company with the Land Court. This Complaint sought a declaration of the rights, duties, and status of the parties in regard to the real property located at 156 Andover Street, Danvers, Massachusetts. In addition, the plaintiffs sought injunctive relief enjoining the Shell Oil Company from disturbing landscaping installed by the plaintiffs at the premises in the center of the parking lot. On June 19, 1990, then Chief Justice, Marilyn M. Sullivan, of the Land Court, granted the plaintiffs a temporary restraining order prohibiting Shell Oil Company from moving, altering or disturbing in any way the landscaping installed by plaintiffs at 156 Andover Street, Danvers, Massachusetts, as shown on the plan entitled "Site Plan, 156 Andover Street, Danvers, Massachusetts; Property of Hugh and Lorraine Gilbert, Raymond Road, Salem, Massachusetts," endorsed by the Danvers Planning Board, dated March 22, 1988, until further order of the court. After a hearing by the Court, Cauchon, J., on June 27, 1990, the Court denied the plaintiffs' application for preliminary injunction extending the provisions of the temporary restraining order and ordered the temporary restraining order issued June 19, 1990 dissolved. A Stipulation for Dismissal of the case was signed by the parties on July 11 and 12, 1990 and filed with the Land Court on July 12, 1990. Shortly thereafter, the landscaping and berm were removed.

18. On November 21, 1990, Whitney Development submitted an application to the Danvers Planning Board for modification of the approved site plan with respect to landscaping and parking facilities. On the same date, Whitney Development submitted an application to the Board of Appeals for modification of the variance by permitting completion of landscaping, parking facilities and other site improvements in accordance with a revised plan. In the alternative, the applicant requested a "finding" under M.G.L. Chapter 40A, Section 6, for completion of the site work. The revisions to the plan concerning landscaping, parking facilities and other site improvements were made as a result of the decision of Judge Cauchon of the Land Court denying plaintiff's application for a preliminary injunction and dissolving the temporary restraining order. Shell Oil Company's claimed rights to use of the parking area precluded Whitney Development from constructing the improvements to the property as shown on the approved site plan. The Town of Danvers building inspector, Peter A. Bryson, will not grant additional occupancy permits for the building unless either (1) the improvements to the site, including landscaping, are constructed according to the original approved plan, or (2) such improvements are constructed according to an approved amended site plan.

19. On December 17, 1990, the Board of Appeals voted to dismiss the variance modification application on the grounds that it did not include the owner's assent (Docket No. DD-2465). on January 8, 1991, the Planning Board voted to deny the request for site plan modification on the grounds that the request lacked written permission from the owner, as required by Section 4.3.3.e of the Zoning By-law. Whitney Development filed a two-count appeal in the Land Court seeking to annul both of these decisions. (Miscellaneous Case No. 156328)

20. On January 22, 1991, Whitney Development filed an appeal from the Planning Board's denial of site plan modification with the Board of Appeals, pursuant to M.G.L. Chapter 40A, Section 8.

21. The Board of Appeals held a public hearing on February 25, 1991 and voted to dismiss the appeal for lack of consent of the owner (Docket No. EE-2482) . Whitney Development then filed an appeal in this Court (Miscellaneous Case No. 159484).

22. On April 17, 1991, a hearing was held on Whitney Development's Motion To Consolidate Case Nos . 156328 and 159484. At that time, it was stated to the Court that the Gilberts had agreed to give their consent to applications to the Board of Appeals and Planning Board. The Court (Sullivan, J.) allowed the Motion and ordered the matters remanded to the respective boards.

23. A public hearing on the variance modification application was convened on June 3, 1991. At that time, Whitney Development requested a continuance. The hearing was continued to August 5, 1991, from which date it was again continued, successively, and on request of the applicant, to September 12, September 23, October 7 and November 4, 1991. On November 4, 1991, the applicant presented the plan on which the modification request was based: "Site Plan 156 Andover St., Danvers, Massachusetts Property of Hugh & Lorraine Gilbert" by Hancock Survey Associates, Inc., dated February 12, 1986, revised through September 12, 1991 ("new plan"). The original plan differs from the new plan as follows: (1) the new plan eliminates interior landscaping islands south and east of Shell building; (2) the new plan has smaller perimeter landscaping islands on westerly side and eliminates those on easterly side; (3) on the new plan, parking configuration in center of parking lot is changed; (4) the new plan provides for access and egress from both east and west curb cuts on Route 114; (5) the new plan shows increase to 98 parking spaces from 89 on original plan. At the conclusion of the hearing on November 4, a motion to grant the variance modification received three votes in favor and two opposed. By virtue of the statutory voting requirements, M.G.L. Chapter 40A, Section 15, the application was denied. (Docket No. EE-2504.)

24. Subsequent to such vote, Whitney Development requested that the matter be re-heard by the Land Court pursuant to the jurisdiction it had retained under the Remand Order.

WHITNEY DEVELOPMENT CORP. By its attorneys, Alan l. Grenier GRENIER & McCARRON BBO No. 211040 235 Newbury Street Danvers, Massachusetts 01923 (508) 777-7000

DANVERS BOARD OF APPEALS and DANVERS PLANNING BOARD By their attorney, David J. Doneski Assistant Town Counsel BBO No. 546991 One Sylvan Street Danvers, Massachusetts 01923 (508) 777-0001