Plaintiff Cumberland Farms, Inc. owns a commercially-zoned property on Route 6 in Wellfleet, currently occupied by a Cumberland Farms convenience store, a liquor store that leases its retail space from Cumberland, a single-family residence long-since abandoned, and a garage that had been leased for storage space but is presently vacant and will not be re-let. See Ex. 1 (site plan showing existing conditions). Cumberland proposes to redevelop the property by (1) demolishing the existing retail structures and the abandoned residence, (2) constructing a new building to house both the Cumberland convenience store and the liquor store tenant, (3) adding a canopied fuel pump island in front of the new building with two gasoline pumps and one diesel pump, (4) re-configuring the entrance and exit drives to make them easier and safer to use, and (5) re-landscaping the site to improve its appearance and install additional tree and shrub buffering from its neighbors. See Ex. 2 (site plan showing proposed development).
To do this, Cumberland applied for five special permits from the Wellfleet Zoning Board of Appeals: one for the convenience store, a second for the liquor store, a third for the fuel pump island (which falls under the bylaw definition of filling station), [Note 1] a fourth to permit a new principal use on the property (the fuel pump island), and a fifth for a reduced curb cut radius on Route 6. Cumberland later withdrew the requests for the convenience store and liquor store uses, believing they were either grandfathered or would continue to be authorized under previously-granted permits and thus did not require new zoning relief. Cumberland also increased the curb cut radius, bringing it into compliance with the zoning bylaw and thus eliminating the need for approval of a reduction. That application was thus withdrawn as well.
By decision dated February 8, 2012, the Zoning Board denied the two remaining special permit requests (1) to authorize the filling station use, and (2) to add another principal use (the filling station) on the property based on its ruling that it lacked jurisdiction over those applications because Cumberland had not first obtained a Formula Business Special Permit from the Wellfleet Planning Board pursuant to Bylaw, §6.30 a provision which prohibits the use of any structure or building by a Formula Business [Note 2] unless authorized by such a permit. [Note 3] The Board has since conceded that this aspect of its decision was erroneous; the special permits Cumberland sought are not, in fact, preconditioned upon first securing a Formula Business Special Permit from the Planning Board. [Note 4] This concession does not moot the denial, however. As an independent, alternative ground for its ruling, the Zoning Board also found that the redevelopment did not provide adequate parking, would increase traffic congestion along Route 6, and would negatively affect property values due to an increase in glare, fumes, noise, and the addition of the fuel pump island.
Cumberland now appeals from that denial pursuant to G.L. c. 40A, §17, contending that the Zoning Boards reasons for denying its application are arbitrary, capricious and legally untenable. In a separate claim brought under G.L. c. 240, §14A, [Note 5] it also seeks a declaration that the Formula Business bylaw is invalid under the Zoning Act (G.L. c. 40A), both facially and as applied to this project. The defendants disagree and, in addition, have requested this court to rule on whether Cumberland must apply for new special permits for the convenience store and liquor store uses.
The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that § 6.30 of the Wellfleet zoning bylaw requiring Formula Businesses to obtain a special permit as a condition of operation is invalid both facially and as applied. I further find that the Boards alternative grounds for denial of the special permits are unsupported by the evidence and thus arbitrary and capricious. Lastly, I find and rule that the liquor store use is grandfathered, the convenience store use is authorized by a prior permit from the Zoning Board, and, for those reasons, neither needs any new special permit. The Zoning Boards decision is therefore VACATED and the matter is REMANDED to the Zoning Board for entry of a new decision consistent with the findings set forth below.
I. The Formula Business Bylaw
Like the Zoning Board, I begin with the Formula Business bylaw, addressing its relevant facts and analysis first, and then discuss the other issues and their related facts in subsequent sections of this Decision.
Cumberland Farms is a privately-owned Framingham-based company, with almost 600 stores in eight states across the Northeast and Florida. [Note 6] As testified by Cumberlands witnesses at trial, it has 55 stores in Southeastern Massachusetts, Cape Cod, and the Islands, all operating under the Cumberland Farms name. Each is a so-called convenience store fast in, fast out stocking a limited number of products, chiefly beverages, snacks, milk, ice cream, eggs, bread, and personal care items. Many of the stores also sell gasoline and diesel fuel at self- service pumps.
This case involves Cumberlands property in Wellfleet, located at 2586 State Highway (Route 6) in a Commercial District zone. [Note 7] It is a single lot, approximately 73,300 square feet (around 1 ¾ acres) in size, with 240 feet of frontage on Route 6. Route 6 Cape Cods main highway runs north and south in this section, with two paved travel lanes (one going north and one going south, divided by a double-yellow line) and a paved bicycle/breakdown lane on each side, marked-off from the travel lane by a solid yellow line. The Cumberland property is on the east side of Route 6 and has two entrances onto that highway. As noted above, it is currently occupied by the existing Cumberland Farms convenience store, a liquor store, a long-abandoned residence, and a garage that previously had been leased to third-parties for storage space but is presently vacant and will not be re-let. See Ex. 1.
The Cumberland property is abutted on the south (the direction towards Eastham and Orleans) by Bay Sails Marine, a large multi-building operation that sells and stores boats and other equipment for boating, fishing and sailing. Cumberlands abutters to the north (the direction towards Truro and Provincetown) are a bicycle shop, a bait store, a boat/kayak rental shop, and, next to that shop, PJs Restaurant, a popular dining location. Directly across Route 6, set back from the road, are residences and, on the highway itself, diagonally across from the Cumberland property, a Mobil gas station the only presently-existing gas station in Wellfleet. Each of these businesses has its own paved parking lot, sufficient for its needs. The area behind the Cumberland site is zoned residential. Wellfleets town center, reached by side roads, is a little under a mile to the west.
Cumberlands plan calls for the existing convenience store and liquor store structures to be razed and replaced with a new, single structure housing both a 3,634 square foot convenience store and a 2,727 square foot liquor store. See Ex. 2. The proposed new building will conform to all dimensional zoning requirements and restrictions. [Note 8] It is designed in a Colonial, Cape Cod style with varying roof pitches, and its exterior siding will be 6 to 8-wide rough-hewn cedar shingles common to buildings on Cape Cod. Its exterior signs will identify it as a Cumberland Farms store.
The new building will have public restrooms that are ADA-compliant. [Note 9] The plan also includes a redesign of the two driveways on the property that provide access to and from Route 6 (increasing their radius and separation) and adds considerable new landscaping. [Note 10] Compare Ex. 1 with Ex. 2. The existing store, like all the buildings in its immediate neighborhood, currently gets its water from a well. As a key part of the renovations, the new store will connect to Wellfleets municipal water supply via an extended water line along Route 6, to be constructed at Cumberlands sole expense (around $120,000). At the Towns request, this extension will run along the opposite side of Route 6 and thus be available to the residential properties on that side so they too can connect to the municipal water supply.
The Cumberland store currently operates each day from 5 a.m. to 11 p.m. The proposed redevelopment will not change this. The store focuses on selling convenience items and everyday necessities, with beverages including coffee, milk and water [Note 11] a large part of its business. This too will not change. Aside from the peak summer months, most of the customers are local residents, with milk and dairy products especially popular. This will not change either.
Wellfleet amended its zoning bylaw in 2011 to regulate so-called Formula Businesses. A Formula Business is defined as:
Business, Formula A retail trade business which does or is required by contractual or other arrangement or as a franchise to maintain any of the following features:
Standardized (formula) array of merchandise, exterior trademark or service mark, defined as a word, phrase, symbol or design, or a combination of words, phrases, symbols, designs, and/or architecture, façade that identifies the business as one (1) of twenty five (25) or more other businesses worldwide.
Bylaw, §2.1. Businesses that fall under this definition must obtain a special permit from the Wellfleet Planning Board in order to operate. Bylaw, §6.30.3.
Cumberlands Wellfleet store is a Formula Business within the bylaw definition because its exterior signage identifies it as one (1) of twenty five (25) or more other businesses worldwide. Because both its merchandise and the way that merchandise is arrayed are similar to convenience stores generally, i.e. not unique to Cumberland, it would not otherwise fall within the definition.
Under the bylaw, the requirements for obtaining a Formula Business Special Permit are as follows.
The purpose and intent of the Formula Business regulation is to address the adverse aesthetic, community character, and general welfare impact of standardized businesses on Wellfleets historic and residential areas as well as gateways to the Town. Formula businesses will have a negative impact on the towns historical and cultural relevance, unique Cape Cod rural character, and overall attractiveness as a small town, locally-oriented tourist destination. These uses are therefore restricted in order to maintain Wellfleets distinct community and natural experiences.
The proposed use of any building or structure for a Formula Business, as defined herein, shall require a Special Permit issued by the Planning Board.
6.30.3 Standards and Criteria
The property owner shall complete and submit an application for a Special Permit to the Planning Board in accordance with the Wellfleet Planning Board Guidelines and Procedures. The following standards and criteria shall apply to Special Permit applications under Section 6.30, in addition to the Special Permit Criteria imposed by Section 8.4.2:
1. Approval of the formula based business establishment will not substantially alter or detract from the established character of the location.
2. Approval of the formula based business establishment will contribute to a diverse and appropriate blend of businesses in its location.
3. The formula based business establishment will be compatible with existing surrounding uses; has been designed and will be operated in a non-obtrusive manner to preserve the locations community character; and the proposed intensity of uses on the site is appropriate given the uses permitted on the site and on adjoining sites.
4. There shall not be a substantial impact to the public safety from increased traffic. At the discretion of the Planning Board, the applicant may be required to submit a traffic study, prepared by a Registered Professional Engineer, approved by the board so as to ensure pedestrian and vehicular safety both on the site and accessing and egressing from it.
5. There shall not be any adverse impacts to the roadway or abutting properties from the loading area. The applicant shall submit a plan indicating the provision for rubbish removal, including the dumpster location with proper screening and buffering so that there are not any substantial adverse impacts to abutting properties.
6. Minimize obstruction of scenic views from publicly accessible locations; Minimize visual intrusion by controlling the visibility of parking, storage, or other outdoor service areas viewed from public ways or premises residentially used or zoned; Minimize glare from headlights and lighting intrusion.
7. Ensure compliance with the provisions of this Zoning Ordinance, including parking and landscaping.
8. Architecture and signage must reflect and/or compliment [sic, complement] surrounding architecture.
Other pertinent facts are set forth in the Analysis section below.
Cumberland challenges the Formula Business bylaw both as part of its G.L. c. 40A, §17 appeal and pursuant to G.L. c. 240, § 14A. The defendants concede that the Zoning Board erred in ruling that a Formula Business special permit was required before it could reach Cumberlands other special permit applications, thus mooting that aspect of the Board decision. [Note 12] The G.L. c. 240, §14A claim, however, is separate and independent from the G.L. c. 40A, §17 appeal and thus remains. See Cohen v. City of Somerville, 87 Mass. App. Ct. 1112 (2015), 2015 WL 1334817 at *2 -*3 (Mem. & Order Pursuant to Rule 1:28) and cases cited therein. As the owner of the property affected, Cumberland has standing to bring such a claim, and this court has jurisdiction to hear and decide it. G.L. c. 240, §14A.
G.L. c. 240, § 14A allows challenges to both the facial validity of a bylaw and to its validity and interpretation as applied to a proposed use of a particular parcel of land. Banquer Realty Co. v. Acting Bldg. Commr of Boston, 389 Mass. 565 , 570 (1983). Here, Cumberland challenges both. The analysis for either begins with a basic truth. Zoning can only deal with use, without regard to the ownership of the property involved or who may be the operator of the use. CHR Gen., Inc. v. City of Newton, 367 Mass. 351 , 356 (1982). The question thus becomes: does a store, simply because it is one of twenty-five or more with the same name and/or sales format, use land differently (or, put another way, have materially different use- related impacts) than a store that is not? If so, how? And what is the evidence that shows that?
There was no evidence that Formula Businesses falling within the bylaw definition, for that reason alone, [Note 13] attract more customers (or a different type of customer), have more traffic (or a different type of traffic), make more noise (or a different type of noise), create more glare (or a different type of glare), generate more trash (or a different type of trash), are larger in ways that cannot otherwise uniformly be regulated, have hours of operation that cannot otherwise uniformly be regulated, look different architecturally (less Cape Cod?, rural?, locally- oriented? or historic?) in ways that cannot otherwise uniformly be regulated, or somehow blight the area around them. So far as the record shows, no studies were conducted of such impacts in connection with the bylaws adoption.
What the evidence did show is that everyone (locals and visitors alike) makes purchases at this Cumberland Farms location; the amount, patterns and time distribution of traffic are typical of any convenience store stocking the same types of goods (i.e., determined by the use rather than ownership or affiliation); [Note 14] and there was no evidence, lay or expert, that anyone would avoid Wellfleet if Formula Businesses were there. There was no evidence that the Colonial-style design proposed for this Cumberland Farms store would not fit in, and the absence of uniformly-applied design regulations, applicable to all businesses, to maintain the quaint, small-town character or aesthetic the bylaw purportedly seeks, strongly suggests another agenda behind the bylaw.
Zoning bylaws must provide for the uniform regulation of like uses within a zoning district. G. L. c. 40A, § 4 (Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.). This uniformity requirement is based upon principles of equal treatment: all land in similar circumstances should be treated alike so that if anyone can go ahead with a certain development [in a district], then so can everybody else, and is designed to prevent conferral on local zoning boards of a roving and virtually unlimited power to discriminate as to uses between land owners similarly situated. SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 107-08 (1984) (internal citations and quotations omitted). The Formula Business bylaw fails this test because it draws a sharp distinction between similarly-situated land owners for example, a hypothetical Wellfleet Convenience Mart and a Cumberland Farms convenience store, both carrying the identical inventory and operating in the identical way with only the Cumberland Farms required to make the numerous showings necessary for the Formula Business special permit before it can open its doors. All that need differ to trigger the bylaw is the name on the exterior sign, regardless of its size or style.
The Town contends that its Formula Business bylaw is consistent with its authority under the Zoning Act because, in the Towns view, the bylaw regulates [a]esthetics [which] are a public interest that justifies the exercise of municipal zoning power. [Note 15] More precisely, the Town maintains it has an interest in preserving the aesthetics of a small, New England town from the more "standardized and uniform appearances that it associates with Formula Businesses. But there are valid ways of achieving that goal design regulations or historic preservation, for example and this bylaw is not one of them. Moreover, the bylaw regulates far more than just aesthetics. Under its criteria, a Formula Business must show, among other things, that it will not substantially alter or detract from the established character of the location, will contribute to a diverse and appropriate blend of businesses in its location, will be compatible with existing surrounding uses, will be operated in a non-obtrusive manner, and that its intensity of uses on the site is appropriate given the uses permitted on the site and on adjoining sites. Bylaw, §6.30.3. It must show that there will not be a substantial impact to the public safety from increased traffic and, at the discretion of the Planning Board, may be required to submit a traffic study, prepared by a Registered Professional Engineer, approved by the board. Id. It must show that there will not be any adverse impacts to the roadway or abutting properties from the loading area, and must submit a plan indicating the provision for rubbish removal, including the dumpster location with proper screening and buffering so that there are not any substantial adverse impacts to abutting properties. Id. It must minimize obstruction of scenic views from publicly accessible locations; minimize visual intrusion by controlling the visibility of parking, storage, or other outdoor service areas viewed from public ways or premises residentially used or zoned, [and] minimize glare from headlights and lighting intrusion. Id. And its architecture and signage must reflect and/or compliment [sic, complement] surrounding architecture. Id. Many of these are laudable goals and, if uniformly applied with more clearly defined and less vague, subjective standards, could be proper subjects of zoning. [Note 16] But the Formula Business bylaw is invalid because these requirements do not apply to a non-Formula Business doing precisely the same things, in precisely the same location, in precisely the same way. As noted above, there was no evidence that Formula Businesses generate greater or different adverse impacts than those that do not come within that definition, and the evidence that was presented indicates they do not.
Moreover, zoning bylaws may not impose restrictions that are vague and ambiguous. See OConnell v. Brockton Bd. of Appeals, 344 Mass. 208 , 212 (1962). A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process law . And this is no less true of a municipal ordinance or regulation. Id. (internal quotations and citations omitted). The sections of the Formula Business bylaw that address aesthetics are so vague and ambiguous that they leave decisions to the untrammeled discretion of the Planning Board. See MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 638 (1970). As noted above, under the bylaw, the Planning Board must find that the Formula Business will not substantially alter or detract from the established character of the location, that it will contribute to a diverse and appropriate blend of businesses in its location, and that its [a]rchitecture and signage [will] reflect and/or compliment surrounding architecture and signage. Bylaw, §6,30.3. What do these mean? By what standards are they to be judged? How can they be applied, in practice, in anything other than an almost totally-subjective manner? And why do they not apply just as equally to stand-alone (i.e., one or more of fewer than twenty- five) businesses, which presently are free to operate without regard to them? It is difficult to see how the bylaw will not become a way (or, just as problematically, be perceived in practice as a way) for the Planning Board to play favorites. And it is even more difficult to conclude that the bylaw is anything but economic protectionism, which is not a proper subject of zoning. See Circle Lounge & Grille v. Board of App. of Boston, 324 Mass. 427 , 429-30 (1949).
Put simply, the Formula Business bylaw regulates ownership, not use. It singles out certain businesses for more onerous regulation, based on nothing more than the name on their door, without an evidentiary basis to do so. And even with the best intentions, the subjective and vague standards by which the Planning Board is empowered to act will result in arbitrary and capricious decisions. The bylaw is thus invalid, both on its face and as applied.
II. No New Special Permits Were Required for the Liquor Store and Convenience Store Uses
I move now to the parties request for a declaratory judgment on whether new special permits were required for the convenience store and liquor store uses. As previously noted, Cumberland initially applied for such permits, but then withdrew those applications based on its contention that those uses were grandfathered. Again, I begin with the facts relevant to these issues, and then turn to the analysis.
It is unclear what, if anything, existed on the Cumberland property prior to 1967. It was in a Highway zoning district under the bylaw then in effect, with buildable lots requiring 40,000 square feet and 200 feet of frontage. [Note 17] Structures required a front yard setback of sixty feet, and rear and side yard setbacks of twenty-five feet. Both residential uses (limited to one dwelling per lot) and commercial uses were allowed.
In 1967, the propertys then-owners, Joseph and Eleanor Schoonejongen, conveyed it to Wilfred and Patricia Rogers, who built and occupied its now-abandoned residence that year. The Rogerses also began construction of a separate retail building on the site at that time, completing it in 1968, and began operating it as a liquor store as soon as it was completed the same building and liquor store use that have been in continuous existence since that time and lawfully still exist today. [Note 18] The liquor store is approximately 1,727 square feet [Note 19] in size, and is located sixty feet from the front lot line. Both the residence and the liquor store were lawfully conforming with respect to dimensions, setbacks and use as of 1968.
Wellfleet amended its zoning bylaw in 1975 and the propertys zoning district changed to Commercial. The front yard setback requirement, formerly sixty feet, now became 100, and retail business uses were allowed only by special permit. See 1975 Bylaw, §5.3.2 & §5.3.4. The liquor store was grandfathered as a lawful, pre-existing, nonconforming use and structure. The new bylaw reduced the side and rear setbacks to five feet. [Note 20]
In June 1978, the Rogerses sought Zoning Board approval to construct a second commercial building on the site, 3,600 square feet in size, immediately next to the liquor store building and with the same front setback from Route 6 (sixty feet). This involved (1) a variance from the 100-foot front yard setback requirement, and (2) a special permit authorizing a new, separately-operated Retail Trade business use (as defined in the bylaw) [Note 21] on the lot. The Zoning Board granted both requests, without conditions on either the variance or special permit. In addition, it ruled that the additional businesses to be located in the new addition fell within the Retail Trade business category as defined in the then-applicable bylaw. [Note 22]
A few months later, in December 1978, the Rogerses returned to the Zoning Board to seek another special permit, this time to add a third business use to the property a personal services business to be located in the newly constructed commercial building. The Zoning Board granted this request, with the condition that it be limited to the basement of the new building. Using this permit, the Rogerses then started and operated a small accounting firm in the basement space. On December 1, 1978, for the ground floor of the building, the Rogers entered into a five year lease with Cape Cod Farms Inc. (term beginning January 1, 1979) to operate a Cumberland Farms convenience store as allowed by the June 1978 special permit. Since 1979, Cumberland Farms, either directly or through an affiliated corporation, has continuously operated a Cumberland Farms convenience store in that location.
The property went through a series of owners until December 11, 2007, when Cumberland Farms bought it. Cumberland Farms has owned it ever since. As previously noted, the residence that had once been home to the Rogers family has been abandoned and is currently run-down and uninhabited. The garage at the rear of the property was last used in 2011 as storage space for a landscaping business, but now too is vacant. The accounting business that once operated in the basement of the convenience store building is long gone, with that space now used as storage for the store. Wellfleet Wine Cellar and Spirits currently leases the liquor store building from Cumberland Farms.
Other pertinent facts are set forth in the Analysis section below.
Cumberland contends that no special permits are required to continue the convenience store and liquor store uses because they are either grandfathered or have been authorized by prior Zoning Board decisions. In its decision, the Zoning Board made no ruling on whether Cumberland must apply for these special permits in order to redevelop the property. Although not raised in the parties initial pleadings, the Town requests this court rule on whether these special permits are required. [Note 23] At trial, both sides presented evidence on these issues without objection. I therefore find the court has the authority to reach these questions. See Mass. R. Civ. P. 15(b) (pleadings may be amended to conform to the evidence). I address each use separately and, for the reasons set forth below, I find and rule that new special permits are not required.
The Liquor Store
The liquor store was constructed in 1968 in compliance with the then-applicable setback requirements (twenty-five feet from the rear line and side lines; sixty feet from the front lot line). [Note 24] The Cumberland property was zoned Highway at that time (a classification that no longer exists), and the liquor store use was permitted in that district as of right. [Note 25] This changed in 1975 when Wellfleet amended its zoning bylaw to classify the district as Commercial, and liquor stores (a Retail Trade [Business]) were allowed in such districts only upon the issuance of a special permit. Thus, from that time to the present, the liquor store use has been grandfathered as a legally protected, pre-existing, nonconforming use on the property, and has been lawfully utilized as such. [Note 26] The 1975 zoning bylaw also increased front yard setbacks from sixty to 100 feet, thereby causing the liquor store building to become a legally protected, pre-existing, nonconforming structure. [Note 27] In 1985, the Wellfleet zoning bylaw was further amended, increasing side setbacks in the Commercial district from five to thirty-five feet. [Note 28] The liquor store structure, being approximately thirty-four feet from the propertys northern boundary, then became nonconforming in this respect as well.
The new structure that Cumberland proposes to build, housing both the liquor store and the convenience store, will comply with the current bylaws dimensional and setback requirements. [Note 29] Statement of Agreed Facts, ¶ 34. Thus, no structure grandfathering is necessary. With respect to the liquor stores status as a protected pre-existing, nonconforming use, Cumberland contends that this protection remains even if the liquor store structure is razed and rebuilt as proposed and, therefore, no special permit is required to continue that use. The defendants disagree.
The analysis turns on G.L. c. 40A, § 6 and on the so-called Powers test (see Town of Bridgewater v. Chuckran, 351 Mass. 20 (1966) and Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 (1973) (adopting reasoning of Chuckran)), which provides certain protections to lawfully pre-existing, nonconforming uses and structures.
In relevant part, G.L. c. 40A, §6 provides as follows:
Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or bylaw required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . 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 or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use.
Id. (emphasis added).
The defendants contend that, because the zoning bylaw contains no specific mechanism or procedure by which a property owner can obtain a §6 finding, only the first sentence of §6 applies in this case. [Note 30] They then argue that neither that first sentence, nor anything else, provides protection to Cumberland because a reconstruction of the liquor store is proposed with an increase in its size, and thus that a new special permit is required. [Note 31] I disagree. Here, Cumberland does not propose to reconstruct a nonconforming liquor store structure. The structure it proposes to build will conform to all requirements of the zoning bylaw. All that is at issue is the question of the use. Because the use stays exactly the same (liquor store) without change or substantial extension and without being conducted in a substantially different manner, its grandfather protection as that use remains. As the evidence showed, the increase in size will neither add to nor increase the extent of the use in any material way.
Although G.L. c. 40A, §6 can sometimes be difficult and infelicitous [Note 32] in its application, cases involving §6 have outlined a three-tiered analysis.
First, it must be ascertained whether the project in question involves a change or substantial extension of the preexisting nonconforming use. This determination is based upon whether the proposed use reflects the nature and purpose of the use prevailing when the zoning by-law took effect; whether there is a difference in the quality or character, as well as the degree, of use; and whether the current use is different in kind in its effect on the neighborhood. Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966) (internal quotations and citations omitted); see also, e.g., Cape Resort Hotels Corp. v. Alcoholic Licensing Bd., 385 Mass. 205 , 212 (1982); Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 653, 663 (1973); Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 728, n.4 (2005). These considerations are often collectively referred to as the Powers test. If the proposed use is consistent with all of the Powers test considerations, the use is protected under §6 and the project may proceed, regardless of any town bylaw to the contrary. Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 413 (1995). [Note 33]
It is only if the Powers test is failed that the analysis proceeds to the second level whether the use is otherwise permitted by the town bylaw and, if so, to the need for a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood. Green v. Bd. of Appeals of Provincetown, 26 Mass. App. Ct. 469 , 472 (1988), revd on other grounds, 404 Mass. 571 (1989); see also Powers, 363 Mass. at 654; Jasper v. Michael A. Dolan, Inc., 355 Mass. 17 , 24 (1968)).
If such a finding is denied, the analysis then goes to third level whether that denial was arbitrary and capricious. See Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). [Note 34]
Here, each part of the Powers test is passed, mooting any need to go further.
Compliance with the first part of Powers is straightforward. There is no change in the nature or purpose of the use that was prevailing when the zoning bylaw took effect. The store has always operated as a liquor store and Cumberland proposes to continue that use.
The second Powers test examines whether there will be a change in the quality, character, or degree of the pre-existing use. Again, there will not. The store was, and will remain, a liquor store, licensed for all such sales. The increase in size, from 1,727 square feet to 2,727 square feet, is relatively minor (it remains a small retail store), and simply improves its interior layout and allows it to stock a bit more inventory. An increase in inventory or sales volume does not change the quality or character of the use. See Bd. of Selectmen of Blackstone v. Tellestone, 4 Mass. App. Ct. 311 , 315 (1976) (The character of a use does not change solely by reason of an increase in its volume .). And, as discussed immediately below, there will be no change in the degree of the use.
Both the degree inquiry and the remaining part of the Powers test are the same: an examination of whether the use will now be different in kind in its effect on the neighborhood. Powers, 363 Mass. at 653. [Note 35] It will not. As just noted, the liquor store will remain as it was: a small retail operation. The overall make-up of its inventory will not change: beer, wine, and liquor. The increased size is relatively minor, and allows the store to improve its interior layout and stock more inventory. This increase in storage may well result in the need for fewer deliveries. Standard traffic analysis indicates there may be something of an increase in the number of customers to the store but, as discussed in the concluding section (Part IV) of this Decision (discussing traffic), this increase will lead to only a small number of additional vehicle trips, and will have no material impact on Route 6 traffic conditions. I therefore find the expanded liquor store satisfies the third prong of the Powers test.
The fact that the building currently containing the nonconforming use will be demolished and replaced does not change the analysis. As noted above, the new building will comply with all dimensional requirements of the bylaw. That, combined with compliance with the Powers test, is sufficient. See Barron Chevrolet, 419 Mass. at 409-410, 412-413 (holding that a towns ability to regulate non-conforming uses is limited to uses crossing the substantiality thresholds in the first sentence of G.L. c. 40A, §6; i.e. use[s] for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent). As a matter of statutory interpretation, this makes perfect sense. All that Cumberland seeks is a temporary discontinuance of the nonconforming liquor store use while the current, nonconforming structure is razed and replaced with a conforming, albeit larger, structure. If the liquor stores grandfathered use protection was extinguished upon the demolition of the structure, this would plainly be at odds with the protections afforded by G.L. c. 40A, § 6, third paragraph. See Barron Chevrolet, 419 Mass. at 412 (statutory provisions must be interpreted in the context of the statute as a whole). It also makes perfect sense from a practical standpoint. Without such protection, the owner of a lawfully pre-existing, nonconforming business would be hesitant to replace an old facility with a more efficient one for fear that his business would no longer be protected as a grandfathered use. Thus he would face a choice to either continue his business in an outdated structure or run the risk that his use would become illegally nonconforming. Provided the nonconforming use resumes within two years of the demolition of the old building, the mere demolition of that building does not end its protection. G.L. c. 40A, §6, third paragraph.
The Convenience Store
Unlike the grandfathered liquor store, the convenience store, constructed in 1978, was specifically authorized as an additional retail business use by special permit in 1978 issued to Cumberlands predecessor owners, the Rogers family. In the same Zoning Board decision, the Rogers family also obtained a variance from the 100 foot setback requirement, allowing them to build the convenience store with a sixty foot setback. [Note 36] The defendants contend that, because the proposed convenience store is approximately twice the size (3,624 square feet) of the existing one (1,800 square feet), Cumberland must seek either a modification of the existing special permit or a new special permit to continue its operation in the larger space. I disagree.
The Zoning Boards 1978 decision contains no language that either conditions or restricts the dimensions of the convenience store. This is in sharp contrast to the Zoning Boards decision issued later that same year in December 1978, granting a special permit to the Rogers family to operate a personal service business in the basement of the convenience store building. There, the Zoning Board expressly stated that the personal service business was limited to the basement of the new structure which measures 30 feet by 60 feet shown on the attached plan. See Minutes and Decision (Dec. 21, 1978) (Trial Ex. 16). Moreover, the site plan submitted in connection with the 1978 application shows the store with 3,600 square feet [Note 37] almost precisely the square footage now proposed (3,634). [Note 38] Lastly, although the proposed new convenience store would be approximately twice the size of the 1,800 square foot store that was actually built and currently exists, it would comply with all dimensional and setback provisions of the bylaw.
Having no express conditions or restrictions, the 1978 special permit authorizing a second retail business on the property remains valid. This is even more true given that the store now proposed would be almost identical in size to the 3,600 square feet put before the Board in 1978 in connection with its approval. Cumberland is thus not required to obtain either a modification of the existing special permit or an entirely new special permit to continue that use.
III. The Filling Station Front Yard Setback
Facts and Analysis
Although the Zoning Boards decision made no findings on Cumberlands proposed setbacks, the defendants raised another new argument at trial, contending that the location of the proposed filling station island would not comply with the bylaws 100 foot front yard setback requirement. Once again, both sides presented evidence on this issue without objection. I therefore find the court has the authority to reach this question, and do so. See Mass. R. Civ. P. 15(b) (pleadings may be amended to conform to the evidence).
The analysis begins with two definitions in the bylaw, front yard and building. Bylaw, §2.1. A front yard is defined as [a] space on the same lot with the building, between the front line of the building and the front line of the lot and extending to the side lines of the lot. Id. A building is defined as [a] structure forming a shelter for persons, animals, property or an activity and having a roof. Where appropriate in the context the word building shall include the principal and accessory use or uses to which the building is put. Id.
Cumberland contends that its proposed filling station is not a building as defined by the current bylaw and, for that reason, need not comply with the 100 foot setback requirement. I disagree.
It is undisputed that filling stations are structures under the bylaw. See Bylaw, §2.1 (Anything constructed or erected, the use of which requires location on the ground or attachment to something located on the ground, except a boundary wall or fence.). The dispute hinges on whether this structure would provide shelter and thus constitute a building. Shelter is not defined in the bylaw, and so the court looks to its usual and accepted meaning. Shelter is defined as something that provides cover or protection, as from the weather. The American Heritage College Dictionary (4th Ed.) at 1278 (2002). The proposed overhead canopy for the fuel pump island is a solid 24 x 92 surface. It would be both large enough, and clearly was designed, to provide customers using the fuel pumps with protection, and thus shelter, from the elements. I therefore find and rule that the filling station would be a building within the bylaws meaning.
But this is not the end of the inquiry. For non-residential uses, the bylaw allows a decrease in the required front yard setback from 100 feet to fifty feet so long as the building is wood-sided. Bylaw, §5.4.2. The proposed filling station would have a fifty-foot setback and, in the design submitted to the Zoning Board, an all-steel construction. According to Cumberland, fire-retardant wood shingles can be added to the steel frame to create a wood-sided exterior. Section 406.5 of the State Building Code, regulating motor fuel dispensing facilities, allows overhead canopies to be constructed out of fire-retardant treated wood. See 780 CMR 406.5.3. Thus, provided Cumberland submits a redesigned filling station plan showing a structure that is wood-sided, it is entitled to the benefit of the decreased front yard setback provided for in the bylaw.
IV. The Zoning Boards Denial of the Filling Station Special Permit Applications
I turn now to the final part of the case: whether the Zoning Boards denial of the two special permits that all parties agree were necessary to the Cumberland project was arbitrary and capricious, and should thus be vacated. Those two special permits were (1) to authorize the filling station use, and (2) to add another principal use (the filling station) to the property. As previously noted, the initial basis of the denial of these permits was the Boards ruling that a Formula Business Special Permit was required as a jurisdictional pre-requisite. As the Board now concedes, it was not. The alternative basis for denial was the Boards ruling that the project
(1) would not provide adequate parking, (2) would increase traffic congestion along Route 6, and, (3) because of increased glare, fumes, noise, and the addition of the fuel island, would negatively affect property values. Cumberland has appealed these denials pursuant to G.L. c. 40A, §17.
The Standard of Review
In a G. L. c. 40A, § 17 appeal, the reviewing court hears the case, makes de novo factual findings solely on the evidence admitted in its proceedings, and then determines the legal validity of the Boards decision based upon those findings with no evidentiary weight given to any findings by the Board. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 485- 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) and Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). Its function on appeal, based on the facts it has found de novo, is to ascertain whether the reasons given by the [Board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The Board must have acted fairly and reasonably on the evidence presented to it, and have set forth clearly the reason or reasons for its decisions in order to be upheld. Id.; see also Wendys Old Fashioned Hamburgers of New York Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374 , 380 (2009).
Even though the case is heard de novo, such judicial review is nevertheless circumscribed: the decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Roberts, 429 Mass. at 486 (citations omitted).
In determining whether the board decision was based on a legally untenable ground, the court must determine whether it was decided
on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives some measure of deference to the local boards interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.
Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted).
In determining whether the decision was unreasonable, whimsical, capricious, or arbitrary, the question for the court is whether, on the facts the judge has found, any rational board could come to the same conclusion. Id. at 74. While this step is highly deferential, and gives the board discretion to deny a permit application even if the facts found by the court would support its issuance, id. (internal citations omitted), that discretionary power is not limitless. The judge should overturn a boards decision when no rational view of the facts the court has found supports the boards conclusion, and also in situations when the reasons given by the board lacked substantial basis in fact and were in reality mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law. Shirley Wayside Ltd. Pship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012) (internal citations and quotations omitted).
Since the Zoning Boards decision was based on traffic impact, parking adequacy, and its belief that neighboring property values would be adversely affected by an increase in glare, fumes, noise, and the addition of the fuel pump island, I thus begin with the facts relevant to those issues. On those issues, the court defer[s] to the boards judgment only when reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit, and the board may not conclude that an expansion will be substantially more detrimental to the neighborhood in the absence of credible evidence. Shirley Wayside, 461 Mass. at 484-485 (internal citations and quotations omitted).
Facts and Analysis
The Current Cumberland Store and its Operations
The Cumberland store is open each day from 5 a.m. to 11 p.m. It focuses on selling convenience items and everyday necessities, with beverages coffee, milk, bottled water and sodas a large part of its business. As previously noted, bottled water sales are especially high in Wellfleet because of local concerns about the quality of water, mostly supplied by local wells. Aside from the peak summer months, most of the stores customers are local residents. It is a particularly popular destination for milk and other dairy products, not least because of its quick- in, quick-out operation.
The building in which the store is presently located is made of wood and has a pitched roof. The basement that once housed the accounting business is now used solely for storage. The convenience store occupies the main floor above.
The building is archaic, old, and hard-used. It needs repairs on a constant basis. The weight of its walk-in cooler needed primarily for milk and other dairy items has required structural work to shore up the main floor. Dampness from the cooler has caused the wood to rot. There are frequent water leaks into the basement from the main floor above, and also leaks originating in the basement itself.
The buildings condition causes operational problems as well. At present, there is no public water supply serving the property. Although coffee sales are a large part of the stores business, employees cannot use the available well water to prepare those drinks because of safety concerns. Instead, they must haul gallon jugs of water from storage and refill large vats used for coffee and ice preparation. These jugs are kept outside on the back dock area because storage elsewhere in the building is limited. There is a restroom in the store that is physically too small to accommodate any person with a disability. Thus, it cannot be made available to the public.
Currently, the convenience store gets deliveries from a central distribution warehouse two times a week, Mondays and Thursdays. These deliveries are made by tractor-trailer and, like all deliveries to the store, take place after 7 a.m. as the town requires. Milk is delivered twice a week. The store also gets small-truck direct deliveries of Frito-Lay, Coca-Cola, Pepsi and other similar types of products approximately twice a week. In the early 1990s, Wellfleet required that all deliveries be made behind the store instead of in front. To accommodate this, a rear loading dock was constructed and continues to serve as the drop-off area for all deliveries. Trash is also picked up at the rear.
The Proposed Redevelopment
The proposed redevelopment includes not only the Cumberland convenience store but also, as a result of lease obligations, the liquor store tenant. As previously discussed, Cumberlands plan calls for the existing convenience store and liquor store structures to be razed and replaced with a new, single structure housing both a 3,634 square foot convenience store and a 2,727 square foot liquor store. See Ex. 2. The proposed retail building would conform to all dimensional zoning requirements. [Note 39] It is designed in a Colonial style with varying roof pitches, and its exterior siding will be 6 to 8- wide rough-hewn cedar shingles common to buildings on Cape Cod. The plan also includes a redesign of the two driveways on the property that provide access to and from Route 6, increasing their radius and separation.
Hours of operation would not change. [Note 40] The type of goods sold also would not change, [Note 41] except for the addition of gasoline pumps.
In order to meet the stores business needs, most of which are driven by beverage sales, Cumberlands plans include the construction of an extension of Wellfleets existing municipal water line to the proposed new store so that it would have a dedicated supply of safe drinking water. This would eliminate the need for employees to constantly refill vats with gallon jugs of water. Cumberland consulted with the Cape Cod Water Commission on the placement of the water line. The initial plan was for the line to extend southerly down Route 6 on the stores side of the road. Wellfleet, however, asked Cumberland to put the extension on the other side of Route 6 so that the residential properties on that side of the road could also tie into the municipal water supply. Cumberland agreed to this request, and to pay the full expense of the extension of approximately $120,000.
The proposed redevelopment also includes a new landscaping plan that would add large trees to the sides and rear of the site and low-lying shrubbery on the dividing island between the property and Route 6. In the rear of the property, behind the current retail buildings, the existing vegetation consists of cypress and evergreen trees described by the witnesses as a typical Cape Cod forest. These trees would remain and Cumberland would also add a new vegetative screen to this area consisting of various evergreen trees that would serve as an added buffer between the retail businesses and the residences located behind them. The landscaping plan would comply with the front yard vegetated cover requirements of Bylaw §5.4.2 and the perimeter buffering requirement of §6.12.1. [Note 42]
Many Cumberland stores have self-service fuel pumps, and Cumberland proposes to add such pumps at this location. Under the plan, there would be three pumps two for gasoline, one for diesel fuel with dispensers on each side and thus capable of serving a total of six vehicles at any given time. They would be under a 24 x 92 steel-framed canopy containing overhead lighting and a fire suppression system, located in the front of the property between the retail stores and Route 6, fifty feet back from the highway. See Ex. 2. Fuel is to be supplied from two 20,000 gallon double-walled tanks installed underground.
Cumberlands parking plan proposes forty-two parking spaces for both the Cumberland store and the liquor store. The bylaw requires that retail businesses provide one parking space for each 150 square feet of floor area plus one space for every three employees. [Note 43] The project would contain 6,361 square feet of floor area, thereby requiring forty-three spaces, [Note 44] plus two additional spaces for the six employees working at the liquor store and convenience store. Under the bylaw, [o]ne required parking space may be omitted for each 300 square feet of planting area within the parking lot, on approval of the Board of Appeals as a condition of a Special Permit upon the Boards determination that parking demand will still be adequately served. See Bylaw, §6.12.2. Cumberland seeks to take advantage of this credit by eliminating three required parking spaces in exchange for 989 square feet of planting area, [Note 45] thus reducing its total overall parking requirement to forty-two spaces.
Cumberlands initial parking plan put five parking spaces alongside the proposed new landscaping at the front of the property on Route 6. After Wellfleets fire and police chiefs raised concerns (discussed below) about the proximity of these spaces to the filling station where cars would be making turning maneuvers, Cumberland revised its parking plan. [Note 46] The new plan eliminates these five spaces and, in their place, designates the six spaces alongside the fueling pumps (where cars stop to fuel) as parking spaces. [Note 47] See Ex. 2. Cumberland contends these spaces should be counted as parking since (1) they would fit the bylaw definition, [Note 48] (2) drivers refueling their cars would be store customers, and are thus accounted for in the stores square footage parking requirement calculation, and (3) in actual practice, they would be used as parking spaces (cars would be parked there at full stop, ignition off, both while fueling and while their drivers go inside the store to pay for their fuel and purchase convenience items). Moreover, because of the small size of the store and the nature of the goods it sells (convenience items, needing no more than a quick in, quick out to purchase), no customer would park anywhere on the property for more than a brief period of time, and the constant customer turnover means that spaces would always be available. [Note 49]
The Boards Zoning Review
The bylaw deems Cumberlands proposal a Development of Significant Impact [Note 50] and, accordingly, the Zoning Board required Cumberland to submit a traffic impact study to determine the developments effect on road traffic-carrying capacity, road physical environment, and traffic and pedestrian safety. See Bylaw, §6.3.14(a). [Note 51] Cumberland retained McMahon Associates, a traffic engineering firm, to do the study.
McMahon began by identifying the peak travel volume periods (i.e., the worst case scenario) weekday mornings from 7:00 a.m. to 9:00 a.m., and weekday afternoons from 4:00 p.m. to 6:00 p.m. and then hired a third-party vendor to conduct manual traffic counts at the propertys northern and southern driveways on a typical day during those times. These counts were taken on October 19, 2010, [Note 52] and then seasonally adjusted using July 28, 2010 [Note 53] data from the Cape Cod Commission to reflect higher traffic volumes during the peak summer months on Cape Cod.
Using this seasonally-adjusted 2010 data, McMahon analyzed current traffic conditions and, in accordance with industry and government standards, projected future conditions, five years out, under two different scenarios: a 2015 No Build scenario (which assumes the project is not built and the property remains as it is today) and a 2015 Build scenario (which assumes the project is built). The comparison of these two scenarios shows the projects expected net impact on traffic conditions. Based on this comparison, McMahon concluded that the redevelopment of the property would have minimal impact on the operations of the adjacent roadway and intersections [,][that] additional traffic will not cause delay to motorists on [Route 6], and [that] only motorists exiting the site will experience increased delay. McMahon Traffic Impact Study at 25 (Oct. 2011). Both this analysis and its supporting details are discussed more fully below.
Cumberland filed its project-related applications with the Zoning Board on October 19, 2011. As discussed above, Cumberland initially sought five special permits: (1) to authorize a retail/trade business use (the convenience store) (Bylaw, §5.3.2), (2) to authorize a filling station use (Bylaw, §5.3.2), (3) to authorize a retail/trade business use (the liquor store) (Bylaw, §5.3.2), (4) to authorize an additional principal use on the property (the filling station) (Bylaw, §5.4.13), and (5) to allow a reduced curb cut radius on Route 6 (Bylaw, §6.3.15).
Since Cumberlands plan was designated a development of significant impact, the Zoning Board sent Cumberlands application to the Planning Board for its review and recommendation. See Bylaw, §6.3.13 (Forthwith upon receipt of the above materials, the Board of Appeals shall transmit one set of them to the Planning Board for their review and recommendation.). On December 7, 2011 the Planning Board voted 7-0 in favor of recommending approval for Cumberlands proposal. [Note 54] In its memo to the Zoning Board, the Planning Board made several observations about the Cumberland plan. Two of those are most relevant here. First, the Planning Board noted that Cumberland had increased its curb cut radius from thirty feet (as initially proposed) to fifty feet and this was sufficient for entering and exiting the site and preferable to an acceleration/deceleration lane. [Note 55] Second, the Planning Board noted that [parking] seems more than adequate and could be adjusted. [Note 56]
The Towns Fire Chief and Police Chief also wrote to the Zoning Board, offering (in a joint memorandum) their comments on safety, traffic and parking matters. [Note 57] First, they suggested that, although Cumberlands two twenty-four foot wide site driveways met the bylaws requirements for egress, those widths should be increased to thirty feet. [Note 58] Second, they expressed their concern about the proposed location of five parking spaces, parallel to Route 6, between the gasoline pumps and the highway. In their view, customers attempting to parallel park in those spaces would be jockeying for position with those entering or leaving the fuel dispenser area, which would put more cars closer to the fuel dispensing area, but unprotected by the automatic extinguishing system under the canopy, and the total number of spaces provided elsewhere was sufficient to meet the stores actual parking needs without them. Accordingly, they recommended that the ZBA should allow a reduction in the [overall] required number of parking spaces and eliminate the five spaces parallel to Route 6 entirely. [Note 59]
Cumberland appeared before the Zoning Board on December 15, 2011 and February 2, 2012. By that time, it had increased its curb cut radius to fifty feet (in full compliance with the zoning bylaw, and thus no longer required a special permit for a reduced curb cut), and had also withdrawn its special permit requests to authorize the convenience store and liquor store uses. [Note 60] With respect to parking, to moot the question of whether the zoning bylaw gave the Board general discretion to reduce the required number of parking spaces, Cumberland proposed to utilize the landscaping credit explicitly provided in the bylaw. Following the suggestion of the fire and police chiefs, Cumberland also proposed eliminating the five parallel parking spaces along the front of the property and, to replace them, designating the six spaces alongside the fuel dispensers as parking. In January, it submitted a revised layout plan to the Zoning Board reflecting these changes. See Ex. 2.
By decision dated February 8, 2012, the Zoning Board denied Cumberlands two remaining special permit applications to authorize a filling station use (Bylaw, §5.3.2), and to authorize an additional principal use on the property (the filling station) (Bylaw, §5.4.13). The Zoning Board now concedes that this denial, insofar as it was based on its belief that it lacked jurisdiction over those applications because Cumberland had not first obtained a Formula Business Special Permit, was erroneous. [Note 61] But this concession does not moot the denial. As an independent, alternative ground for its ruling, the Zoning Board also found that the redevelopment did not provide adequate parking; would increase traffic congestion along Route 6; and would negatively affect property values due to an increase in glare, fumes, noise, and the addition of the fuel pumps. Cumberland disagrees, and contends that these findings were arbitrary, capricious, and legally untenable. I thus discuss each, beginning with traffic.
At trial, Cumberland presented the testimony of Gary McNaughton, vice president of McMahon Associates, who oversaw Cumberlands traffic impact studies and testified about them. [Note 62] I find that testimony both credible and persuasive.
There are three relevant aspects to a traffic analysis. The first is an analysis of accident data. The second is the total number of cars added to the roadway. The third is the impact on entry/exit movements on the roadway and any delays so caused. Mr. McNaughtons testimony, which went over the McMahon studies in detail, covered each.
McMahon was retained by Cumberland in the fall of 2010. The first task of that study was to assess existing traffic conditions at the property, and it began with a manual traffic count of the vehicles entering and exiting the propertys two driveways during peak morning (7:00-9:00 a.m.) and afternoon (4:00-6:00 p.m.) hours on Tuesday, October 19, 2010. [Note 63] McMahon then collected traffic data from the Massachusetts Department of Transportation (Mass DOT) [Note 64] and, based on this data, adjusted its traffic count upwards to reflect increased volumes during the summer.
The Mass DOT data did not show any accidents in this area, so McMahon contacted the Wellfleet Police Department to review its accident reports for the property for the years of 2008, 2009, and 2010. This data showed only twelve accidents at the site driveways during these three years, with only one involving a personal injury. [Note 65] The crash rate so calculated (the number of crashes per million entering vehicles) is thus 0.68 in line with the overall crash rate for District 5 (the Mass DOT district encompassing Wellfleet and southeastern Massachusetts) and also the statewide average, which are both 0.62. [Note 66] Problematic intersections have crash rates well above average, in the range of 1.5 - 2.0 There is thus no objective evidence of any safety deficiency at the property. Moreover, the proposed geometric and alignment improvements to the two site driveways will better define the entry and exit points and thus reduce the incidence of accidents.
The next phase of McMahons study was to compare existing traffic conditions with projected conditions at the property if Cumberlands project was built, and thus to measure the additional impact on Route 6. This is done using trip counts. [Note 67]
Existing conditions can be observed and, as just noted, McMahon had actual counts taken. In addition, for both current and as built projections, McMahon used data from the Institute of Transportation Engineers (ITE) publication Trip Generation, 8th Edition, which provides industry-standard statistics, based on constantly updated actual traffic counts, on how much traffic a particular land use generates. [Note 68] Mr. McNaughton used the traffic statistics from Land Use Code (LUC) 852 (Convenience Store 15-16 hour) for the existing convenience store. There is no ITE land use code for a liquor store, so Mr. McNaughton used trip generation statistics for LUC 814 (specialty retail) and compared them with LUC 852 for the purpose of calculating how much of the traffic to the site goes to the convenience store and how much to the liquor store. This indicated that eighty percent of vehicle trips to and from the property are generated by the convenience store, and the remaining twenty percent by the liquor store. For purposes of analyzing traffic at this site, I find this eighty-twenty allocation credible, well- founded, and persuasive.
Not every trip to a site is due to that site. Some are from vehicles that would be on the road regardless. These are called pass-by trips, which reflect vehicles already on the road that decide to stop at the site on their way to some other destination. Since the relevant question is the impact of the development on roadway use i.e., how much traffic a particular land use will add to the roadway network, as opposed to traffic that will be there anyway pass-by trips are thus excluded when analyzing the traffic impacts of the site itself. The additional trips a site will generate in the terminology used by traffic engineers, new trips is the key measure, and those are calculated by (1) using ITE data to determine the total number of trips to the site, and then (2) subtracting the pass-by trips from that number.
Determining the number of current pass-by trips is a two-step process. Because there are currently two uses on the property convenience store 15-16 hour and liquor store, each drawing a different number of customers over the same time period the pass-by number must be calculated for each separately and the two then added together.
For the existing convenience store, ITE data for LUC 852 (the land use code applicable to that use) indicates that 61% of vehicle trips to that store are pass-by trips. This exclusion is thus applied to the convenience stores share (80%) of the total existing traffic at the site.
The liquor store is not quite as straightforward. As noted above, there is no ITE land use code for liquor store. However, Mr. McNaughton believed (and I concur) that LUC 814 (specialty retail) was close enough for determination of the vehicle allocation between the two uses. But he did not believe (and again I concur) that it was close enough to use for pass-bys. Instead, he took a more conservative approach. Since higher pass-by rates reduce the impact that a particular land use has on the roadway network (recall that a higher percentage of pass-by trips means the property generates fewer new trips), Mr. McNaughton assumed that all liquor store trips (a 20% share of the total number of trips to and from the property) were new trips, thereby taking the worst case for the liquor stores impact on Route 6 traffic conditions.
With the pass-by rates thus determined, Mr. McNaughton then returned to the calculation of the number of new (i.e., non-pass-by) vehicle trips to and from the site as currently used. Based on his analysis of the seasonally-adjusted traffic data and the statistics from the ITE manual, [Note 69] Mr. McNaughton determined that the current convenience store and current liquor store, combined, have a total of 111 vehicle trips (89 convenience store trips, 22 liquor store trips) during the weekday morning peak hour roughly speaking, 56 cars going in and out of the site over the course of that hour. Of this total, 55 trips were pass-by trips, and only the remaining 56 (roughly, 23 cars) were new trips (i.e., site destination-specific). During the weekday afternoon peak hour, Mr. McNaughton calculated a total of 159 trips to and from the property (127 convenience store trips, 32 liquor store trips). Of that total, 77 were from pass- by traffic and only 82 (roughly, 41 cars) were new trips. This was thus the baseline from which the total traffic impact of the proposed development was measured.
Mr. McNaughton then used ITE data to project the total number of vehicle trips that would be generated by the expanded convenience and liquor stores plus the addition of the filling station. For this, he used LUC 853 (convenience market with gasoline pumps) for the proposed convenience store and filling station. Using the square footage of the proposed convenience store (3,634 square feet), Mr. McNaughton projected the convenience store and filling station will generate 160 trips during the weekday morning peak hour. Of that total, 100 are pass-by trips and 60 (i.e., approximately 30 cars over the course of the hour) are new trips. [Note 70] During the weekday afternoon peak hour, Mr. McNaughton projected the convenience store and filling station will generate 217 trips (143 pass-by trips and 74 new trips, i.e. approximately 37 new cars over the course of the hour).
Since there is no land use code for liquor stores, Mr. McNaughton doubled the number of trips attributed to the existing store in order to approximate how many trips might be generated by an expanded liquor store. He testified that this was a reasonable approach because he believed the current liquor was 1,200 square feet and that the proposed store would be a little more than twice that size at 2,727 square feet. [Note 71] Once again, he assumed that all trips generated by the expanded liquor store would be new trips. Thus, he projected the expanded liquor store would generate 44 new trips during the morning peak hour (roughly speaking, 22 more cars over the course of the hour that would not have gone to the existing store) [Note 72] and 64 new trips (32 cars) during the afternoon.
McMahons projected total number of vehicle trips to and from the fully redeveloped property (the expanded convenience market, now with gasoline pumps, plus the expanded liquor store) at the peak hours of the peak season (i.e., the worst case) was thus 204 weekday morning trips (100 pass-by and 104 new trips) and 281 weekday afternoon trips (143 pass-by and 138 new trips).
To assess how many more additional vehicle trips would be generated by the redeveloped property at this peak time (and thus the true impact of the redevelopment), Mr. McNaughton then subtracted the current number of new trips to and from the property from the projected number of new trips to and from the fully redeveloped property. This showed that the redeveloped property would generate 48 additional new trips (24 vehicles entering the property, 24 exiting) during the weekday morning peak hour and 56 additional new trips (28 entering, 28 exiting) during the weekday afternoon peak hour. Given these projections, the McMahon study concluded that the proposed redevelopment will not have any appreciable impact on the operations of Route 6.
Although no counter traffic impact study was ever presented to the Zoning Board, it rejected the conclusions of the McMahon study, instead finding that Cumberlands proposal will substantially add to the traffic congestion and back-ups in the area of Route 6 during the summer tourist season. Decision of the Wellfleet Zoning Board of Appeals at 9 (¶ 26) (Feb. 8, 2012).
Since the Zoning Board faulted the McMahon study because its traffic count was taken in October rather than the summer, after the Zoning Board issued its decision in February 2012, McMahon conducted a traffic count at the property in July 2012 and revised the data in its October 2011 study. The methodologies used in the October 2011 study (described above) and the revised July 2012 study are the same except, of course, a seasonal adjustment of the data. The July counts were now actual counts. See McMahon Traffic Impact Study (Revd., Jul. 2012).
These new counts were taken during the weekday morning (7:00 am to 9:00 am) and afternoon (4:00 pm to 6:00 pm) of Thursday, July 12, 2012. The numbers of trips to and from the property were slightly higher in the July count than they had been in the seasonally adjusted October count. During the July weekday morning, the total number of vehicle trips was 154 versus 111 based on the adjusted October count. During the July weekday afternoon peak hour, the total number of vehicle trips was 184 versus 159 based on the adjusted count. Id. Using these new July traffic figures, Mr. McNaughton projected there would be 43 additional new vehicle trips (slightly less than the 48 trips in the October study) during the weekday morning peak hour and 53 new trips (again, less than the 56 trips in the October study) during the weekday afternoon. [Note 73] In Mr. McNaughtons expert opinion, which I find credible and persuasive, the results of the October 2011 study and the July 2012 revised study were consistent and the slight differences between the projected numbers of additional new trips were negligible differences, with no change to his conclusion that the proposed redevelopment would have no appreciable impact on the operations of Route 6.
Both the October 2011 study and the July 2012 revised study conclude with a traffic operations analysis describing the quality of traffic flow at the propertys two driveways on Route 6. These address the entry/exit movements to and from the site and their impact on Route 6. In describing this traffic analysis, Mr. McNaughtons testimony focused only on the July revised study, since those figures came from the summer peak season and did not need to be seasonally adjusted.
The quality of traffic flow at particular intersections is assessed by determining their Level of Service (LOS), which is the average amount of delay a vehicle making a certain turning movement at one of these intersections would likely encounter. The LOS is graded on a scale from A to F, with A representing little or no delay (less than 10 seconds) and F representing average delays of greater than 50 seconds. These levels of traffic delays were calculated using an industry-standard computer model called Synchro, in which traffic movements and volumes are inputted in order to quantify delays and vehicle queuing at various intersections. [Note 74]
To determine how the redevelopment would impact traffic conditions on Route 6 during the peak hours of the peak season (i.e., the worst case), Mr. McNaughton rated the LOS for each of the two site driveways (the relevant intersections) under the following scenarios: existing 2012 conditions, 2017 No Build conditions, and 2017 Build conditions. [Note 75]
Under existing, 2017 No Build, and 2017 Build conditions, Mr. McNaughtons calculations show the propertys two driveways operating at the highest level of service, LOS A, for vehicles entering the property from Route 6 during the weekday morning and afternoon peak hours. See McMahon Traffic Study, Table 3 (Revd, Jul. 2012)
Cars exiting the property from the two driveways, turning either left or right onto Route 6 do, however, experience a lower LOS. During the morning peak hour, the north and south driveways operate at LOS C (15.1 - 25 second delays) for exiting vehicles. See McMahon Traffic Study, Table 3 (Revd, Jul. 2012). The longest delays are experienced by vehicles exiting the property during the weekday afternoon peak hour. Id. At the northern driveway, the LOS rating declines somewhat for these exiting vehicles, going from LOS D (25.1 - 35.0 second delay) under existing and 2017 No Build conditions to LOS E (35.1 - 50.0 second delay) under 2017 Build conditions. Id. Mr. McNaughton calculated the average delay at the northern driveway would be 28.3 seconds under 2017 No Build conditions and 37.2 seconds under 2017 Build conditions. Id. During the afternoon peak hour, the southern driveway operates at LOS F (a greater than 50 second delay) under all analyzed scenarios, existing, 2017 No Build, and 2017 Build conditions. Mr. McNaughton calculated the average delay at this southern driveway during 2017 No Build conditions would be 91 seconds and would increase to 161 seconds under 2017 Build conditions. Id.
In addition to the LOS ratings, Mr. McNaughtons study included a volume-to-capacity (V/C) ratio for each turning movement at each of the propertys two driveways. This ratio compares how many cars go through a particular intersection with how many cars could theoretically go through that intersection over the course of an hour. The V/C ratios in the McMahon study indicate that the intersections operate well within their capacity during existing, 2017 No Build, and 2017 Build conditions. See McMahon Traffic Impact Study, Table 3 (Revd, Jul. 2012). The southern driveway, expected to have the longest delays for exiting vehicles under the 2017 Build scenario, has a V/C ratio of 0.87, which indicates that it still operates well within its capacity.
Mr. McNaughton testified that, based on the traffic operations analysis, the impact of the proposed project in terms of increased delays for drivers will be borne mostly by vehicles exiting the property. The projects impact on vehicles traveling on Route 6 (the relevant inquiry) will be minimal as the projections show turning movements from Route 6 into the property continue to operate at LOS A under existing, 2017 No Build, and 2017 Build conditions.
At trial, to rebut Mr. McNaughtons testimony, the Town offered the testimony of its own expert witness, Robert Michaud of MDM Transportation Consultants, Inc. (MDM), whom the Zoning Board retained after it issued its decision. Mr. Michaud did not conduct his own study, but rather simply a peer review of McMahons traffic impact study. For the following reasons, Mr. Michauds testimony does not persuade me that McMahons methodologies were unreliable or its conclusions not credible and persuasive.
As Mr. Michaud testified, a peer review is not, and should not be considered, a separate traffic impact study. MDMs only purpose was to review the technical aspects of McMahons study to ensure it complied with accepted industry practices and requirements. MDM then conducted its own field observations of traffic to and from the property to see if they were in line with the figures in the McMahon study. Mr. Michaud explained that MDMs review did not analyze how much additional traffic would be generated by the completed project, nor did it contain a capacity analysis like the one found in the McMahon study.
Mr. Michauds chief critique of the McMahon study centered on his contention that it did not comply with Mass DOT standards in three areas where Mass DOT differs from the industry. He looked to Mass DOT because it is charged with approving applications for modifications of access to state highways through the issuance of curb cut permits, and Route 6 is such a highway.
The first difference concerns pass-by traffic. ITE data for pass-by traffic is specific to land use codes. ITE has made continuing, detailed studies of actual pass-by traffic for particular land uses here, LUC 852 (convenience store, 15-16 hour) and LUC 853 (convenience store with gasoline pumps). These show actual pass-by traffic either at, or slightly above, 60 percent. Mass DOT, by contrast, uses a maximum 25% pass-by factor for everything, regardless of what actually occurs. [Note 76] This results in an artificial inflation of new (i.e., site specific) trips. Not even Mass DOT, however, applies the numbers so derived unthinkingly. Rather, a 25% pass-by factor provides an extreme worst case from which the DOT, in assessing curb cut applications, can move away, either by waiver or choosing alternative assessment. Applying it unthinkingly is thus highly misleading.
Another area of difference concerns the time frame for projecting future traffic growth. Mr. McNaughton used the five year industry standard found in MEPA guidelines to project future traffic conditions on Route 6. According to Mr. Michaud, Mass DOT requires applicants to project seven years out to allow for time spent trying to obtain project permits. He did not, however, persuasively show that a seven (as opposed to a five) year projection would produce any material change. Negligible is still negligible.
Lastly, Mr. Michaud testified that McMahons traffic study did not specifically analyze non-vehicular traffic (bicycles and pedestrians) and thus, in his opinion, would not comply with Mass DOTs policy to consider mitigation measures designed to safely accommodate all roadway users, including bicyclists and pedestrians. [Note 77] There was no evidence to suggest, however, that the safety of bicycles and pedestrians will be adversely affected by the redevelopment. Indeed, to the contrary, the re-configured site driveways (with larger turning radii and better visibility) will likely increase that safety. Moreover, none of the multi-year accident data show any bicycle or pedestrian incidents.
Cumberlands project requires a curb cut permit from Mass DOT, but as of trial, Cumberland has yet to submit its application to Mass DOT, so Mass DOT has had no reason or opportunity to review Cumberlands project. Mr. Michaud could only speculate as to what Mass DOT might require of Cumberland. In any event, Mass DOTs standards are for its purposes, and are neither designed nor intended for automatic application beyond that. As Mr. Michaud conceded on cross-examination, it is entirely possible that Mass DOT could be satisfied with Cumberlands application as is and require no further review or revision. Moreover, it is not the role of the Zoning Board or the Town to try to predict how a state agency might act on an application. See Hobbs Brook Farm Co. Ltd. Pship v. Planning Bd. of Lincoln, 48 Mass. App. Ct. 403 , 405 (2000) (it is not the business of the planning board to anticipate that the grant of the requisite permit by the responsible governmental body would be improvident or might not occur.). Because McMahons traffic study relied on accepted industry standards and assumptions, I find no reason to discredit its conclusions because these standards do not correspond precisely to those promulgated by Mass DOT, particularly when the Mass DOT retains full authority to impose them on the redevelopment to the extent it finds them appropriate. The Mass DOT can, and will, speak for itself.
In its decision, the Zoning Board rejected McMahons traffic study in large part because it was not conducted during the summer and relied on seasonally-adjusted October data. But Mr. Michaud testified on cross examination that relying on seasonally-adjusted data is an accepted industry practice and should not be the sole basis for rejecting a traffic study. Reliance on seasonally adjusted data also makes sense since a traffic engineer might be retained (as McMahon was here) during an off-peak time of year. Requiring a manual traffic count only during a peak season would force project proponents to wait, perhaps several months, before being able to move forward with submitting a permit application for a development. Moreover, when McMahon did conduct a summertime manual traffic count in July 2012 after the Zoning Board issued its decision, it showed there was no material disparity between the results obtained from the seasonally adjusted October data and the July data.
As part of its peer review, MDM conducted its own traffic count during the summer and compared its findings with those contained in the McMahon July 2012 revised study. MDMs traffic count took place on Wednesday, August 15, 2012 from 7:00 am to 6:00 pm. MDMs weekday morning peak hour count of vehicle trips to and from the property was 215, somewhat higher than McMahons July count which was 154. [Note 78] See MDM Review, Figure A1 (Oct. 2012). [Note 79] MDMs weekday evening count was 190, consistent with McMahons July count of 184. See MDM Review, Figure A3 (Oct. 2012).
Mr. Michaud critiqued McMahons study for not conducting a traffic analysis during what he considered design hour conditions, defined as the period of time with the highest combination of site traffic and adjacent street traffic. According to Mr. Michaud, this occurs on the weekend when traffic volumes on Route 6 are the highest. To get a sense of these numbers, MDM placed a radar recorder on Route 6 in the vicinity of the property to record, on an hourly basis, how many vehicles traveled north and south past the property during the weekend period from Thursday, August 16 to Sunday, August 19, 2012. This weekend traffic data, however, does not differ in any significant way from the data McMahon collected during its weekday traffic counts. For instance, the highest weekend per hour traffic counts of vehicles traveling north and south on Route 6 were 1,697 (Saturday, 11 am to 12 pm) and 1,703 (Sunday, 5 pm to 6 pm). McMahons July 2012 weekday afternoon peak hour traffic count is 1,650. See McMahon Traffic Study, Figure 3 (Revd July 2012). According to Mr. McNaughton, a difference of less than 100 vehicles out of a total count of approximately 1,600-1,700 vehicles is negligible. I agree, and so find.
Mr. Michaud next compared his observations of vehicle capacity conditions at the sites driveways with the level of service analysis in the McMahon study. Recall that the McMahon analysis was generated by inputting his overall traffic count data into the Synchro model, which generates an estimation of how many cars will be queued up at the propertys driveways 95 percent of the time. Rather than use Synchro, Mr. Michauds team manually counted the number of cars that queued up at the propertys driveways before making a turning movement on to Route 6, and also recorded the amount of time these vehicles waited in the queue. The difference is relatively minor but, interestingly, in favor of Mr. McNaughtons conclusions. The manual data showed a higher number of vehicles waiting in the queue as compared with the Synchro data, but the average length of delay for those vehicles waiting in the queue was actually less than the average delay projections generated by the Synchro model.
Mr. Michaud testified that the lower average delay he observed for vehicles exiting the property indicated to him that motorists did not have adequate gap time between vehicles traveling on Route 6 to complete a turning movement and, therefore, these exiting vehicles had to force a gap by inserting themselves into Route 6 to complete their exit. Mr. Michaud characterized this as aggressive driver behavior that increases the likelihood of vehicle conflicts at the site driveways. But this is speculative, based on no evidence whatsoever, and even intuitively quite a stretch. Aggressive driver behavior is a characteristic of the driver, and would exist regardless of whether there was a queue of any length or, for that matter, no queue at all. It would certainly not vary materially with the minor difference in queue length produced by the redevelopment, and existing accident data do not support it. Moreover, as Mr. Michaud admitted on cross-examination, what he described as a forced gap scenario might not actually be the result of an aggressive maneuver, but could also encompass situations in which a driver on Route 6 either slowed or came to a stop as a courtesy to another vehicle attempting to exit the property.
Mr. Michaud never alleged that McMahons use of the Synchro program to analyze traffic capacity was improper or unreliable. He simply used a different methodology (a manual count) that yielded slightly different results. MDMs review contains no analysis of these results under build and no build scenarios, and thus there is no evidentiary basis for rejecting the conclusions in the McMahon study.
Lastly, Mr. Michaud disagreed with the determinations in the McMahon study concerning how many trips were generated by each particular land use on the property. McMahon compared ITE data for LUC 852 (Convenience Store 15-16 Hour) and LUC 814 (Specialty Retail) to estimate that 80 percent of vehicle trips to and from the property were generated by the convenience store and the remaining 20 percent by the liquor store. Mr. Michaud testified that he observed customer activity during the weekday evening of Tuesday, August 21, 2012, noting which customers went to the liquor store versus the convenience store. Based solely on this one-time manual count hardly a statistically-significant sample he concluded that the liquor store had a much higher proportion of customer activity than McMahon had estimated in his view, 40 percent.
While Mr. Michaud is correct that a higher proportion of liquor store trips could increase the overall number of projected trips to and from the redeveloped property, I find this criticism unpersuasive for at least two reasons. First, McMahon assumed that all projected liquor store trips would be new trips. This is unlikely in reality, and it results in a projection of more new trips than will actually occur. Second, McMahons projections for future liquor store trips are based on a mistaken understanding that liquor store was expanding from 1,200 square feet to 2,727 square feet. Since McMahon believed the square footage of the liquor store was essentially being doubled, it believed a corresponding doubling of existing liquor store trips was a sufficient method for estimating future trips. But the existing liquor store is 1,727 square feet. Thus, the square footage of the expanded liquor store is closer to one and one-half times the current square footage, not double. Therefore, McMahon overestimated its future liquor store trips by multiplying the current trips by a factor of 2 instead of 1.5. These two considerations the deliberate overstating of new trips and then multiplying those trips by a factor of 2 rather than 1.5cut against Mr. Michauds contention that McMahons liquor store trip projections were underestimated.
For the foregoing reasons, I find the Zoning Boards traffic-related reasons for denying Cumberlands special permits unsupported by the evidence or any rational view of the evidence, and thus arbitrary and capricious. The Zoning Boards disagreement with McMahons conclusions were not based on any kind of sound traffic analysis, but rather were simply anecdotal descriptions about traffic conditions on Route 6 during past summers. See Decision of the Wellfleet Zoning Board of Appeals at 9 (¶ 26) (Feb. 8 2012) (The traffic congestion will be particularly acute in summer months when Route 6 at and around the location of the subject property is already heavily congested with traffic and is often backed up with stop and go traffic.). It is not disputed that this stretch of Route 6 is heavily traveled during the summer months. But, as the evidence showed, any new traffic resulting from the proposed project will be minimal and will not impair conditions on Route 6, even during the peak summer season. Indeed, because there would now be a gas station on the east side of Route 6, not just the west side, it may actually improve traffic conditions to a measurable extent by eliminating existing cross-traffic turns to get gasoline.
The Zoning Board found that the six proposed parking spaces shown alongside the fueling pumps could not be considered valid parking spaces. At trial, the Boards reasoning was echoed by Mr. Stevens, the Wellfleet Building Commissioner, who testified he would not consider these spaces to be parking spaces within the meaning of the bylaw because, in his view, they are passageways and the bylaws definition specifically excludes passageways from being considered as parking.
The Wellfleet zoning bylaw defines a parking space as [t]hat area required for parking one automobile, which in this By-law is held to be an area 9 feet wide and 20 feet long, not including passageways. Bylaw, Section 2.1 at 13. The objection to including the spaces alongside the fueling pumps as parking thus presents an issue of bylaw interpretation, which is a question of law for the court, to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). As always when the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its plain wording, which we are constrained to follow so long as its application would not lead to an absurd result. Marthas Vineyard Land Bank Commn v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004). Words that are not defined in a statute [as is the case here] should be given their usual and accepted meanings, provided that those meanings are consistent with the statutory purpose. We derive the words usual and accepted meanings from sources presumably known to the statutes enactors, such as their use in other legal contexts and dictionary definitions. Seideman v. City of Newton, 452 Mass. 472 , 477-78 (2008) (internal citations and quotations omitted).
Passageway is not defined in the zoning bylaw, and thus the court looks to its usual and accepted meaning. The dictionary defines passageway as a way allowing passage. American Heritage College Dictionary at 1017 (4th Ed. 2002). Excluding passageways from the definition of a parking space is appropriate since parked cars may block passage through a way. But, while the areas between each fuel pump resemble passageways in that cars enter from one side and exit from the other, in reality they function much differently because they are neither intended nor used to provide unimpeded or continuous passage. A car going there will come to a complete stop next to a fuel pump, its engine will be turned off, and its driver will get out of the car to begin fueling, then to pay, and often to go inside the store for a quick purchase of a convenience item. In practical function, they are thus parking, not passage. Customers do not fuel and then park elsewhere to go into the convenience store. I thus find and rule that the areas adjacent to each fuel pump are not passageways within the meaning of the bylaw and, accordingly, may be properly designated as parking spaces on Cumberlands proposed plan.
At trial, the Town raised a second objection, not contained anywhere in the Zoning Boards decision, to Cumberlands parking plan. Cumberland seeks to reduce the number of required parking spaces it must provide by three spaces by taking advantage of a landscaping credit in the bylaw. The Town now contends this credit is not an automatic deduction and thus the Zoning Board may, within its discretion, still require that Cumberland provide forty-five parking spaces instead of the forty-two spaces shown on the plan.
The bylaws landscaping credit provides, [o]ne required parking space may be omitted for each 300 square feet of planting area within the parking lot, on approval of the Board of Appeals as a condition of the Special Permit, upon the Boards determination that parking demand will be adequately served. Bylaw, §6.12.
I agree that this credit is not automatic and, on its face, is within the discretion of the Zoning Board. But that discretion may not be exercised arbitrarily. There must be a rational basis for its denial. After listening carefully to the evidence presented at trial, I find no basis to conclude that the redeveloped sites parking demand will not be adequately served by Cumberlands parking plan. The highest traffic volumes at the property will only last during the peak summer tourist season and, even then, will be adequate. Even using the worst case numbers (the conservatively-projected heaviest-volume hour of the heaviest-volume day of the year), assuming that vehicles come and go at a steady rate, each of the 141 cars coming and going to the site during that hour (an almost certainly inflated number, see the discussion above) would have to park for almost twenty minutes before all the parking spaces were filled. Given the quick-in, quick-out nature of the store, this is unlikely to happen. Moreover, as a practical matter, the situation will be self-regulating. Cars will not stop if parking is not available. The Cape does not lack for places to buy potato chips and beer.
It is also important to remember that these worst case numbers are exactly that worst case. For the remainder of the year, patrons will consist primarily of Wellfleets year- round population. Dan Silverman, Wellfleets former fire chief, testified that he was very familiar with the existing Cumberland Farms during all seasons. He goes there to buy his milk and has never, during any season, seen anything close to forty-five cars parked on the lot. Moreover, Cumberland intends to demolish the garage at the rear of the property now that it is no longer being used for storage by a local landscaping business. If more parking is ever truly needed, Cumberland has the space there to add it, and can do so now to moot any parking issue should it so desire.
Other Allegedly Adverse Impacts
The Zoning Boards decision also found that the proposed redevelopment would have a variety of adverse impacts on abutting properties, such as increases in noise, glare, and pollution, and a corresponding decrease in property values due to the proximity of the new filling station. See Decision, Wellfleet Zoning Board of Appeals at 10 (¶ 28) (Feb. 8, 2012).
At trial, the Town presented no evidence of light and glare impacts on any adjacent property, much less any residences (the immediate abutters are businesses, each of which has exterior lighting of its own). Instead, the evidence was as follows.
Cumberland proposes to install a variety of energy efficient LED lights, all of which will be directed onto the property to illuminate the areas around the retail stores, the filling station and the parking lot. At trial, Cumberland submitted a lighting proposal prepared by LSI Industries, which estimates the foot-candle [Note 80] intensity of the light that the projects lighting scheme will cast onto the lot and beyond the lots boundaries. These foot-candle measurements were plotted on the projects layout plan in a grid at intervals of ten feet by ten feet. The plan shows that, on the propertys northern, eastern, and southern boundaries, there will be no measurable amount of light emanating from the property onto neighboring properties. On the propertys western boundary (along Route 6), the plan shows luminosity readings of less than a foot-candle, generated mostly from lights positioned at the propertys two driveways. This is a very small amount of light and, in any rational view, should be welcomed as an additional safety feature for pedestrians, bicyclists, and even cars and other vehicles traveling along that road. There will be no change in the stores hours of operation. At 11:00 p.m., the lights will be extinguished except for an interior light to provide visibility for employees closing the stores. I thus find and rule the Zoning Boards conclusion with respect to light and glare is unsupported by the evidence presented at trial.
The Boards decision also found that Cumberlands proposal would increase noise in the area. This contention too lacks any evidentiary support. As described above, both stores hours of operation will remain the same. The number of deliveries to the retail businesses will remain the same. The only deliveries that do not presently occur would be fuel deliveries for the filling station, but they could be scheduled during anytime most convenient to the Town. In addition, the closest residential properties are approximately 100 feet from the proposed loading dock area behind the retail stores. The trees and shrubbery presently located at the back of the property will remain along with a new vegetative screen consisting of various evergreen trees that Cumberland proposes to add as part of its landscaping plan. All of this will provide a buffer between activity at the Cumberland property and the residences to the east.
The Zoning Boards decision concludes by speculating that the filling station will depress neighboring property values. No evidence was offered to support this contention at trial. The Boards finding ignores the fact there is currently a gas station located across from the property on the other side of Route 6. The Zoning Boards conclusion regarding property values is thus unfounded.
For the foregoing reasons, the Zoning Boards denial of Cumberlands application for two special permits (one to authorize a filling station use and the second to add another principal use to the property) is VACATED and REMANDED to the Zoning Board for the issuance of those special permits. See Wendys, 454 Mass. at 388-389. It is DECLARED that the Formula Business bylaw is invalid both facially and as applied. It is DECLARED that no new special permits are required for the redeveloped liquor store and convenience store uses. And it is DECLARED that the proposed fuel pump island complies with the setback bylaw if it is sided in fire-resistant wood.
Judgment shall enter accordingly.
[Note 1] See Bylaw, §2.1 (definitions). All references hereafter to Bylaw or bylaw are to Wellfleets current zoning bylaw. References to earlier versions of the zoning bylaw will be preceded by the year of that version, e.g.. 1975 Bylaw.
[Note 2] The bylaw defines a Formula Business as [a] retail trade business which does or is required by contractual or other arrangement or as a franchise to maintain any of the following features: Standardized (formula) array of merchandise, exterior trademark or service mark, defined as a word, phrase, symbol or design, or a combination of words, phrases, symbols, designs, and /or architecture, façade that identifies the business as one (1) of twenty-five (25) or more other businesses worldwide. Bylaw, § 2.1 (definitions). Its sweep is thus a broad one not only the WalMarts of the world, but also such Cape Cod and Islands-oriented stores as Vineyard Vines (more than 25 locations; see www.vineyardvines.com), the Black Dog (more than 25 locations; see www.theblackdog.com), and locally-owned hardware stores affiliated with Ace Hardware (franchise although, perhaps more accurately, a joint-purchasing arrangement; see www.acehardware.com).
[Note 3] By separate bylaw, Fast Food and Formula Restaurants are absolutely prohibited. Bylaw, §6.29.
[Note 4] Statement of Agreed Facts, ¶¶37 & 38 (Mar. 6, 2013).
[Note 5] The Town is the defendant on this claim. See G.L. c. 240, §14A.
[Note 6] See www.cumberlandfarms.com (company description). I have not used the website for anything other than this background fact. It is an agreed fact that Cumberland has far more locations than would be required to fall within the definition of Formula Business.
[Note 7] The zoning maps show the first few feet at the front of the lot (on Route 6) as Residential 1, as seems to be the case for almost all the commercially-zoned properties along Route 6. When and how this came to be was not explained at trial, and it seems odd, given that this is among the most active commercial areas in the town. It is likely just an error in the map. See Bylaw, District Descriptions, Commercial (5), and Bylaw, §3.4 (2011) (Interpretation of District Bounds), both of which put the Commercial District boundary along the Route 6 right-of- way. See also the parties Statement of Agreed Facts, ¶¶ 19, 30 (Mar. 6, 2013), which stipulates that the Cumberland property is in a Commercial District.
[Note 8] See Agreed Facts, ¶ 34. The only potential exception concerns whether the location of the proposed fuel pump canopy violates the front yard setback. As discussed more fully below, I find that it does not. See Discussion, infra.
[Note 9] Due to the inability to make them ADA-compliant in the present structure, there are no public bathrooms now.
[Note 10] The landscaping plan adds large trees to the sides and rear of the property and low-lying shrubbery on the dividing island between the property and Route 6. In the rear of the property, behind the current retail buildings, the existing vegetation consists of cypress and evergreen trees. These will remain, and Cumberland will also add a new vegetative screen of evergreen trees to buffer the retail businesses from the residences located behind them. The landscaping plan complies with the front yard vegetated cover requirements of §5.4.2 of the zoning bylaw and the perimeter buffering requirement of §6.12.1.
[Note 11] Bottled water sales are especially high in Wellfleet because of local concerns about the quality of water, mostly supplied by local wells.
[Note 12] Statement of Agreed Facts, ¶¶37, 38.
[Note 13] None of the showings required for a Formula Business special permit are required of stores selling precisely the same merchandise as a Formula Business, in precisely the same way, as long as they are one of twenty- four or fewer identically-branded or identified operations.
[Note 14] See, e.g., the traffic studies discussed below, all of which were based on standard ITE use categories.
[Note 15] Defs Post Trial Br. at 37 (citing John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206 , 218 (1975)).
[Note 16] Bylaw, §3.2, for example, which sets out the direct objectives uniformly applicable to all development in this district (Commercial), states that they are [t]o provide for small and moderate-scale business development for local and transient service, at the same time preserving or enhancing ocean views from highway[s], preserving or enhancing landscaping, minimizing visibility of parked autos, and avoiding creation of hazards or congestion.
[Note 17] As previously noted, the Cumberland property has approximately 73,300 square feet and 240 feet of frontage on Route 6.
[Note 18] Statement of Agreed Facts, §18 ([S]ince 1968, the retail unit has been lawfully utilized as a liquor store).
[Note 19] The parties Statement of Agreed Facts states that the current liquor store has 1200 square feet. Agreed Facts ¶ 31. This is an error, and I so find, as it conflicts with early site plans of the property, admitted into evidence, that show the square footage as 1,727. Cumberlands post-trial memorandum notes the correction at page 44 (The correct square footage for the existing liquor store is 1,727 square feet.).
[Note 20] It is unknown precisely when the garage, five feet from the propertys southern lot line, was constructed, but based upon that location, its need for a building permit to be constructed, and the lack of any evidence of any subsequent zoning enforcement action, I find that it was likely built during the time this bylaw was in effect.
[Note 21] See Mem. in Support of the Petition of Wilfred E. Rogers, Jr. for a Variance and Special Permit (Trial Ex. 11) at 1, 2. The type of retail store was not specified in the application, nor was the special permit granted limited to any particular type of retail store. Under the then-applicable bylaw, Retail Trade businesses were defined as those that sold food, drugs, clothing, hardware, furniture, appliances, books, and other items of merchandise commonly associated with or essential to the maintenance of home, person and property. 1975 Bylaw, §2.1 (Definitions: Business, Retail Trade).
[Note 22] Decision on Variance and Special Permit (Trial Ex. 14) at 2 (Jul. 13, 1978); Statement of Agreed Facts, §25.
[Note 23] Defs Post Trial Br. at 3.
[Note 24] 1967 Bylaw, §2.4.3.
[Note 25] 1967 Bylaw, §§2.4.1 & 2.4.2.
[Note 26] Statement of Agreed Facts, §18.
[Note 27] 1975 Bylaw, §5.4.2 (increasing front setback to 100); 1975 Bylaw §6.1 (protection of non-conforming uses and structures).
[Note 28] 1985 Bylaw, §5.4.2.
[Note 29] The structure housing the liquor store and convenience store will have a front yard setback of 125 feet, and is thus well within current setback requirements. The question of whether the canopied gas pump island would also be compliant with those requirements (a separate question) is discussed below.
[Note 30] The second sentence of the first paragraph of §6, permitting the extension or alteration of nonconforming uses or structures by a municipalitys permit granting authority (a §6 Finding), is unclear as to whether a municipality is required to provide a mechanism in its zoning bylaw for making such a Finding or is simply authorized to do so if so desired. See §6.8.1 Mass. Zoning Manual (4th Ed. 2007) and discussion therein. I need not and do not reach this question because both the first sentence of §6 and the Powers test are satisfied on the facts of this case.
[Note 31] Defs Post Trial Brief at 31.
[Note 32] Blasco v. Bd. of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 36 (1991) (quoting Fitzsimonds v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 55-56 (1985)).
[Note 33] The burden of establishing that there is not a change or substantial extension of a nonconforming use is on the property owner. Cape Resort Hotels, 385 Mass. at 212 (citing Bridgewater, 351 Mass. at 24).
[Note 34] The burden is on the property owner to establish the statutory and regulatory prerequisite of proof of the lack of substantially more detriment from the proposed structure than from the existing nonconformity. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355, 358, n.13 (2001).
[Note 35] The dictionary defines degree as relative intensity or amount, as of a quality or attribute. The American Heritage College Dictionary (4th Ed.) at 373 (2002).
[Note 36] See Decision on Variance and Special Permit (Jul. 13, 1978) (Trial Ex. 14).
[Note 37] Trial Ex. 12.
[Note 38] Statement of Agreed Facts, ¶33.
[Note 39] See Statement of Agreed Facts, ¶ 34 and the previous discussion of the fuel pump island.
[Note 40] This is also true of the liquor store.
[Note 41] This is also true of the liquor store.
[Note 42] Statement of Agreed Facts, ¶ 47.
[Note 43] See Bylaw, §6.3.1.
[Note 44] 6,361÷150 = 42.41. The bylaw rounds up.
[Note 45] 989÷300 = 3.3. Cumberland has rounded down.
[Note 46] The fire and police chiefs did not believe these five spaces were necessary to provide adequate parking for the redevelopment, and were content to have them eliminated without replacement elsewhere. See Trial Ex. 55, Mem. to Wellfleet Zoning Bd. from Fire Chief Dan Silverman and Police Chief Ron Fisette (Nov. 21, 2011) (In our opinion, the ZBA should allow a reduction in the required number of parking spaces and eliminate the 5 spaces parallel to Route 6.).
[Note 47] One other parking space appearing at the rear of the property was also eliminated, thereby keeping the total number of spaces at forty-two on the revised plan.
[Note 48] A parking space is defined as [t]hat area required for parking one automobile, which in this By-law is held to be an area 9 feet wide and 20 feet long, not including passageways. Bylaw, §2.1. The spaces alongside the fuel pumps are not passageways because they are designed and intended as places for cars to stop and park, ignition off, while refueling.
[Note 49] For the same reasons (small size, and the nature and limited range of the products it sells), customer visits to the liquor store will also be brief ones.
[Note 50] A Development of Significant Impact includes Applicants for Special Permits for uses so controlled and which involve required parking for ten or more cars, or involve more than 4,000 square feet of floor area . Bylaw, §6.3.13.
[Note 51] The bylaw also requires submission of a financial impact study to determine the developments effect on public service expenditures for administrative, police, fire, school and road maintenance services. Bylaw, §6.3.14(b). The defendants do not allege any adverse financial impacts, nor was there any evidence of them at trial.
[Note 52] A Tuesday.
[Note 53] A Wednesday.
[Note 54] The Towns Conservation Commission also approved the redevelopment.
[Note 55] Memorandum from Wellfleet Planning Board to Wellfleet Zoning Board (Dec. 8, 2011).
[Note 56] Id.
[Note 57] Memorandum from Fire Chief Dan Silverman and Police Chief Ron Fisette to the Wellfleet Zoning Board of Appeals (Nov. 21, 2011).
[Note 58] They made this suggestion based on their belief that the wider driveways would allow traffic from Route 6 to enter the site more quickly, thus reducing the chance of a back-up of cars onto the highway. As the Planning Board found, this goal was achieved by the increase in curb cut radius from 30 to 50 feet. See discussion, supra.
[Note 59] Memorandum from Fire Chief Dan Silverman and Police Chief Ron Fisette to the Wellfleet Zoning Board of Appeals (Nov. 21, 2011).
[Note 60] As discussed in the sections above, Cumberland was correct that no new special permits were needed for the liquor store or convenience store uses. The liquor store use is grandfathered, and the convenience store may continue to be operated under the previous (1978) special permit.
[Note 61] Statement of Agreed Facts, ¶¶37 & 38 (Mar. 6, 2013).
[Note 62] See McMahon Traffic Impact Study (Oct. 2011).
[Note 63] The task of conducting the manual traffic count was subcontracted to a third party vendor a standard practice. The defendants do not challenge the accuracy of these counts. In addition to counting vehicles entering and exiting the Cumberland property directly from Route 6, the counts also included vehicles that entered and existing from an internal driveway that connects the property to the adjacent commercial property currently occupied by Bay Sails Marine. These vehicles are included in the total number of vehicles entering the property from the southern driveway.
[Note 64] The Mass DOT data included summer traffic counts.
[Note 65] Mass DOT data typically do not include minor incidents, and this is likely the reason for the discrepancy with the Wellfleet Police Department.
[Note 66] The Mass DOT crash rate data are for unsignalized intersections for all kinds of roadways. Because the Wellfleet Police data contain minor incidents that would not be reflected on Mass DOTs numbers, the comparison (.68 to .62) is not apples to apples but rather skews the Cumberland number higher than a true, direct comparison would indicate. Moreover, the Cumberland site crash data were also skewed by a high number of crashes during 2008 (eight) as compared with 2009 (three) and 2010 (one).
[Note 67] Both ITE data, and traffic engineers generally, count trips in the following manner. When a vehicle enters or exits, both the entry and the exit are counted as separate trips. Thus, a single vehicle typically makes two trips at a site, one in and one out. They are counted separately so that vehicle movements (left-turn in, right-turn in, left-turn out, right-turn out) can be separately tracked if desired, and because, in some instances (employees arriving at the beginning of the day and leaving at the end are the clearest example), a car may enter during one hour and exit during another. Employees aside, in fast-in, fast-out businesses such as the ones at issue here (convenience store, gas station, and liquor store), the entries and exits during a particular hour are typically from the same vehicles.
[Note 68] ITE studies, conducted and confirmed over many years, have shown that vehicle traffic to and from a particular land use closely correlates with the square footage of that use, and that different types of uses generate different volumes of traffic. The data and conclusions from these studies are compiled by Land Use Codes and published in the Trip Generation editions.
[Note 69] The data were seasonally-adjusted to July numbers, the height of the summer season.
[Note 70] Pass-by rates are slightly higher for LUC 853 (convenience market with gasoline pumps) as opposed to LUC 852 (Convenience Store 15-16 hour). LUC 853 provides that 63% of weekday morning peak hour trips and 66% of weekday afternoon trips are attributed to pass-by traffic.
[Note 71] Mr. McNaughton was incorrect about the size of the current liquor store size. As noted above, it is approximately 1,727 square feet. Because, as discussed below, the traffic impacts either way are so minor, the difference in size is immaterial for these purposes.
[Note 72] See discussion, supra.
[Note 73] It may seem counter-intuitive that a higher current vehicle count results in fewer additional trips as a result of the redevelopment, but a moments reflection shows why this is so. The projected number of trips that would be generated by the expanded convenience store and gas station are based on ITE statistics derived from the square footage of a particular land use and, accordingly, remain the same. A higher current count thus reduces the difference between the two figures (that difference being the additional number of trips, and thus the impact of the redevelopment). Because there is no land use code for the liquor store, Mr. McNaughton again assumed a 100 percent increase in the number of trips generated by the liquor store. Thus, the projected trip generation numbers for the new liquor store did in fact increase in the July study (62 morning trips and 74 afternoon trips) as compared with the October study (44 morning trips and 64 afternoon trips). But this increase was outweighed by the decrease in the additional convenience store/gas station trip number. Thus, when Mr. McNaughton subtracted the increased July trips counts from the projected trip numbers for the redeveloped project, the result was that the projected number of additional new vehicle trips was slightly less than had been calculated in the October study.
[Note 74] Queuing analysis is an estimation of the length of the line of cars that would be waiting to take a particular movement at an intersection.
[Note 75] Projections five years out are the industry standard.
To do these projections, Mr. McNaughton contacted the Town and the Cape Cod Commission to see if there were any projects (not including the Cumberland redevelopment) that might affect future traffic growth on Route 6. There were none. Mr. McNauhgton then assumed that traffic on Route 6 would grow by 1 percent per year, compounded annually for five years. The five year projection comes from guidelines for traffic impact studies under the Massachusetts Environmental Policy Act (MEPA). This five year projection established the projected 2017 No Build base traffic volume (i.e. how much more traffic would be on Route 6 even if the project were never built). To establish the traffic volume on Route 6 under a 2017 Build scenario, Mr. McNaughton added the 2017 No Build base volume to the projected number of additional new trips he calculated for the fully completed project (discussed supra).
[Note 76] Recall, a lower percentage of pass-by traffic correlates to a higher percentage of new trips, and thus increased traffic numbers.
[Note 77] Mr. Michaud testified that the McMahon study fails to consider design elements to mitigate the risks to vehicular and non-vehicular traffic such as exclusive turn lanes, converting the site driveways to one-way operation, or installing a center median that would prevent left turns into and out of the property. However, as he explained on cross examination, all of these mitigation measures concerning exclusive turn lanes and access to the property from Route 6 fall within the purview of Mass DOT, not the Zoning Board. Even if the Zoning Board had requested that Cumberland implement certain measures to counter risks associated with traffic on Route 6, Mass DOT has the final say over these kinds of design features. Thus, the absence of counter-measures at this stage in the permitting process and without input from Mass DOT is not a reason to reject the McMahon study.
[Note 78] The difference is thus roughly 30 cars over the course of the hour a 2.7% increase to the 1,100 cars already on the highway.
[Note 79] MDMs Figure A1 (a pictorial representation of the propertys driveways which include the number of vehicles entering and exiting the property) labels the driveways at the property in a slightly different way than the figures contained in the McMahon studies. The southern driveway indicated on MDMs figures corresponds to the internal, shared driveway between the property and the adjacent business, Bay Sails Marine. Thus what is labeled as Cumberlands central driveway on the MDM figures corresponds to what McMahon labeled as the southern driveway in its figures. Trips from the shared driveway were simply included in the overall count numbers for the propertys southern driveway in the McMahon figures.
[Note 80] A foot-candle is defined as a unit of measure of the intensity of light falling on a surface equal to one lumen per square foot and originally defined with reference to a standardized candle burning at one foot from a given surface. American Heritage College Dictionary at 540 (4th Ed. 2002)