RICHARD P. QUINCY, as General Partner of SILVER LEAF LIMITED PARTNERSHIP vs. ROBERT FOWLER, CHERYL BUSCH, RICHARD KRAUSE, and BRIAN O'CONNOR, as they are Members of the Planning Board of Tewksbury, and TOWN OF TEWKSBURY and FIRST COLONIAL, a Partnership.

By complaint filed February 25, 1992, pursuant to G.L., Ch . 40A, Sec. 17, Plaintiff, Richard P. Quincy ("Quincy"), as General Partner of Silver Leaf Limited Partnership, appeals a decision of the Tewksbury Planning Board ("the Board") denying Quincy site plan approval to expand an existing shopping center located on Main Street (Route 38), Tewksbury ("the locus"). Plaintiff seeks an order granting site plan approval for his proposed project and in addition thereto Plaintiff also asks the award of costs because of the Board's acting in bad faith. [Note 1] Pursuant to G.L., Ch. 231A, Plaintiff seeks a declaration that the Planning Board acted in excess of its authority in denying site plan approval for his project.

This case was tried on September 30, 1992, at which all testimony was transcribed. First Colonial, a partnership owning property across the street from the Locus ("Intervenor"), was permitted to intervene. Seven witnesses testified, and twenty-eight exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

The Plaintiff, the Defendants and the Intervenor filed Post-Trial Memoranda on November 5, 1992.

After considering the evidence, testimony, and pertinent documents, I make the following findings of fact:

1. Quincy, as general partner of Silver Leaf Limited Partnership, is the owner of the Locus, which consists of approximately 40 acres of land located on Main Street (Route 38) in Tewksbury. A shopping center with approximately 60,000 square feet of retail space, including a Marshall's and an Osco drugstore, currently exists on the Locus.

2. The Intervenor owns commercial property across the street (Route 38) from the Locus.

3. Quincy proposes to construct an additional 130,000 square feet of retail space at the Locus, to be known as Heath Brook Plaza (the "proposed project" or "project").

4. The Locus is in the General Business Zoning District.

5. A shopping center is a use permitted as-of-right in the General Business Zoning District.

6. The site plan for Quincy's project was approved by the Board on February 27, 1989, pursuant to Section 4.11 of the Tewksbury Zoning By-Law ("By-Law"), which provides for Site Plan Special Permits.

7. Quincy later sought approval from the Board for minor modifications to the site plan which were requested by Shaw's supermarket, a future tenant. The plan, reflecting the modifications, was resubmitted to the Planning Board. The Planning Board was also shown a rendering of the proposed Heath Brook Plaza, which included an illustration of Shaw's Supermarket.

8. The Planning Board's outside engineering consultant advised the Planning Board that:

The changes to the site development plans include slight revisions to the building footprints and loading areas to accommodate future tenant requirements. The adequacy of the overall proposed site design is not affected by these revisions.... We recommend approval of the revised site development plans for the above-mentioned reasons.

9. The Board approved the modifications to the Site Plan Special Permit on July 9, 1990, subject to conditions which had not been placed on the Board's original approval, and which were unrelated to the revisions to the site plan. Certain of the conditions (the "off-site conditions") required Quincy to design and construct improvements to portions of Route 38 which are not adjacent to the Locus.

10. Quincy appealed the off-site conditions, and further sought a declaration that Section 4.11 of the By-Law, which required Site Plan Special Permits for general retail businesses and restaurants in a General Business Zoning District, was invalid under G.L., Ch. 40A, Secs. 4 and 9.

11. This Court, in a decision dated August 5, 1991, held that the off-site conditions were beyond the Board's authority and were void, and that those portions of Section 4.11 of the By-Law which impose discretionary special permit standards upon site plan review for a shopping center, which the Court found to be a use permitted as-of-right in the General Business Zoning District, are void. Quincy v. Tewksbury Planning Board, et al., Misc. case No. 149363.

12. The matter was remanded to the Board for "permissible site plan review" consistent with the Court's decision. The Land Court "respectfully suggest[ed] to the Board that this review should probably be limited to the changes proposed to the already existing and approved site plan, particularly if the changes are as insignificant as the Board's engineer would appear to suggest."

13. On remand, the Board held a series of public hearings to review Quincy's site plan. The site plan before the Board was the same plan that the Board had approved subject to conditions in July, 1990. It complied in all respects with the use and dimensional requirements in the By-Law.

14. During the hearing process, Quincy made several minor modifications to the site plan at the Board's request. The Planning Board was shown, for the second time, the rendering of Heath Brook Plaza indicating a Shaw's Supermarket.

15. on February 5, 1992, the Board voted to deny site plan approval for Quincy's project.

16. The Board filed its decision with the Tewksbury Town Clerk on February 7, 1992. The one-page decision does not state any reasons for the Board's denial.

17. Quincy received a Superseding Order of Conditions for the project from the Department of Environmental Protection. He obtained a Traffic Control Signal Permit, a curb Cut Permit, and a Section 61 finding, pursuant to G.L., Ch. 30, Sec. 61, from the Department of Public Works ("DPW"). He also filed a Final Environmental Impact Report and Supplemental Final Environmental Impact Report with the Secretary of Environmental Affairs, which satisfied the requirements of the Massachusetts Environmental Policy Act, G.L., Ch. 30 Secs. 61-62H. These Environmental Impact Reports, including the traffic studies contained therein, were approved by the Secretary.

18. Quincy has lost several tenants who signed leases, and others who had executed letters of intent to lease, because the Board's denial of site plan approval prevented him from delivering the premises in a timely manner.

The process of reviewing site plans serves as an information­gathering tool which discloses the specifics of the proposed project, including the proposed location of buildings, parking areas, and other installations for the land, and their relation to existing conditions such as roads, neighboring land uses, public features, and ingress and egress roads. Prudential Insurance company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 n. 6 (1986). Essentially, site plan review is the process by which the reviewing board determines whether or not the applicant has complied with the relevant by-law or ordinance provisions. Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 , 29-30 (1970); Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 , 521 (1971). "If the specific area and use criteria stated in the by-law [are] satisfied, the board [does] not have discretionary power to deny [approval], but instead [is] limited to imposing reasonable terms and conditions on the proposed use." Prudential, 23 Mass. App. Ct. at 282, quoting SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 , 106 n. 12, citing Y. D. Dugout, 357 Mass. at 31.

Clearly the Board's review in this matter was specifically limited by law and by order of remand. The fact that such direction was set out in terms of "polite suggestion" did not expand the Board's authority beyond that established by law.

In reviewing a board's decision to deny approval of a site plan submitted in connection with a use permitted as-of-right, the judge must proceed in accordance with the principles governing judicial review under G.L., Ch. 40A, Sec. 17. Prudential, 23 Mass. App. Ct. at 282. In other words, the duty of the trial judge is to hear the matter de novo, make independent findings of fact and, based thereupon, determine the legal validity of the board's decision upon the facts so found. Bicknell Realty Co. v. Board of Appeals of Boston, 330 Mass. 676 , 679 (1953); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986).

As the instant matter involves a site plan for a use permitted as-of-right in the relevant zoning district, the judge must inquire into whether the public interest can be protected to a degree consistent with the reasonable use of the site for the purposes permitted or permissible within the district in which the land lies. Prudential, 23 Mass. App. Ct. at 282; Y. D. Dugout, 357 Mass. at 27. The judge's role is to independently examine the site plan to see if any problem exists which is "so intractable that it could admit of no reasonable solution." Prudential, 23 Mass. App. Ct. at 283.

I find and rule that inasmuch as Quincy's site plan complies with the area and use criteria in the By-Law and inasmuch as the Board has presented no competent or credible evidence of any intractable problem with the site plan and did not make any effort to impose reasonable and appropriate conditions on approval, that the decision of the Board denying site plan approval exceeded the scope of its authority and accordingly, must be and hereby is annulled. I further rule that Quincy must be and hereby is granted site plan approval, without any conditions attached thereto. The Board had ample opportunity to frame appropriate conditions to attach to site plan approval, but chose instead to deny approval outright and without any statement of the Board's reasons. Justice would not be served by remanding the matter once again to the Board, given the Board's "consistent obstruction of lawful use" during this and the previous site plan reviews. Newbury Junior College v. Brookline, 19 Mass. App. Ct. 197 , 208 (1985).

In the instant matter, Quincy established a prima facie case, through the stipulated facts and evidence at trial, that the site plan complies with all relevant provisions of the By-Law and presents no public health or safety problem. The burden of proof and persuasion then shifted to the Board to demonstrate an insurmountable problem with the site plan such that "despite best efforts, no reasonable conditions could be devised to satisfy the problem with the plan. Prudential, 23 Mass. App. Ct. at 283-84, n.9. The Board did not claim any non-compliance with the By-Law. Nor did the Board meet its burden of demonstrating any adverse consequences or injury to the public safety or welfare if the site plan were approved. The intervenor claimed that the site plan did not comply with the By-Law with respect to the width of the entrances to the site, which were adjusted at the Board's request in order to comply with the DPW's state highway design standards. That claim fails in light of the DPW's immunity from local zoning regulations. Medford v. Marinucci Bros. & Co., 344 Mass. 50 (1962); Village on the Hill, Inc. v. Massachusetts Turnpike Authority, 348 Mass. 107 , 118 (1964), cert. denied, 380 U.S. 955 (1965). Quincy is required to construct state highway accesses in compliance with DPW standards.

I find that Quincy did inform the Board that Shaw's supermarket was a prospective tenant and displayed to the Board a rendering of the project that clearly shows a Shaw's Supermarket, both at the previous special permit proceeding and at the site plan review which is the subject of this appeal. However, whether or not the Board was aware that Shaw's Supermarket was a prospective tenant is of no consequence for purposes of site plan review. Quincy informed the Board, as required, that the premises would continue to be used by general retail businesses and restaurants. The site plan for the shopping center showed several anchor stores. There is no requirement in the By-Law that an applicant for site plan approval provide the Board with the identity of prospective tenants and it is inconceivable that site plan approval would be required every time there is a change of a tenant where the property use continues to be a permitted one. I herefore rule that the Board's purported lack of knowledge that Shaw's Supermarket would be an anchor tenant is not a legally valid basis for the Board to deny site plan approval. Furthermore, the Board presented no credible evidence at trial that a supermarket at the project, as proposed, would create traffic problems of any kind or create conditions any different from the plan as already approved by the Board. Accordingly, the Board's decision denying Quincy site plan approval must be annulled.

Although I am not forced to rule on the issue, I am troubled by the Board's failure, as a Board, to clearly set forth the reasons for its decision denying site plan approval, particularly in view of the scope of such review as defined by the Appeals Court in Prudential. See, Security Mills Limited Partnership v. Board of Appeals of Newton, 413 Mass. 562 (1992).

Finally, I find and rule that the Board acted in bad faith by denying Quincy site plan approval. This ruling is supported by the following facts: Quincy's site plan in its essentials has been twice approved by the Board. The revisions made to the plan were found by the Board's own engineers to be minor. This Court's prior decision gave the Board clear guidance, with reference to the controlling precedent, on the limits of the Board's authority in conducting site plan review of uses permitted as-of-right. On remand, the Board chose not to follow the Court's explicit instructions. The Board's failure to put forth any credible evidence at trial of any traffic problems with the site plan suggests that its purported concerns regarding the traffic implications of a supermarket at the site were not advanced in good faith. In addition, the Board's decision to deny site plan approval outright, without any statement of reasons, rather than frame reasonable conditions on the proposed project, and its failure to present any credible evidence suggesting appropriate conditions which might be attached to approval, leads me to conclude that the Board acted in bad faith. The Plaintiff is therefore entitled to an award of costs pursuant to G.L., Ch. 40A, Sec. 17.

Judgment accordingly.