SUMMIT DISTRIBUTING, LLC v. TOWN OF GREENFIELD ZONING BOARD OF APPEALS [Note 1]; and MARK MALONEY, CHRISTOPHER JOSEPH, JAMES WINN, BRICKETT ALLIS, and ANDREW KILLEN, as they are membrs of the GREENFIELD ZONING BOARD OF APPEALS

I. INTRODUCTION

On August 22, 2016, Summit Distributing, LLC ("Plaintiff") filed this case appealing, pursuant to G. L. c. 40A, § 17, a decision of the Greenfield Zoning Board of Appeals ("Board"), whose members in their official capacity are defendants in this case, and seeking from the court declaratory relief. The Board's decision ("Decision") was filed with the Town Clerk on August 1, 2016, and denied Plaintiff's application for a special permit. [Note 2]

After trial, I conclude, on all the testimony and other evidence I credit, that the Decision of the Board was lawful and adequate and will be upheld by the court.

II. PROCEDURAL BACKGROUND

Plaintiff is the owner of the improved property ("Property") located at 109 Mohawk Trail, Greenfield, Franklin County, Massachusetts. Plaintiff filed an application for a special permit, pursuant to Sections 200-6.1(C), 200-8.3, and 200-8.4 of the Greenfield Zoning Ordinance, to allow the existing service station operating on the Property to be converted to use as a convenience store, with the addition of a drive-thru window to serve a donut shop to be added to the site.

The Board addressed Plaintiff's application during three separate public hearings on or about March 23, April 14, and May 12, 2016, prior to the Board's vote to deny Plaintiff's application on July 14, 2016. The Decision of the Board then was filed with the Town Clerk on August 1, 2016. Plaintiff timely filed with the court on August 22, 2016 this action pursuant to G. L. c. 40A, § 17.

On October 14, 2016, counsel for all parties appeared for a case management conference. Following colloquy, counsel for the Board reported a willingness to have the matter remanded to the Board for another public hearing. Both parties reported they were agreeable to considering mediation prior to remand. The court then ordered the parties to report back on their efforts to mediate, and set an initial tracking order. [Note 3]

The parties participated in mediation before The Hon. Herbert H. Hodos (ret.) on December 2, 2016, and January 23, 2017. The parties however did not reach a consensual resolution. On March 30, 2017, the Board filed a motion for remand, which was later revised on August 28, 2017, and opposed by plaintiff. On September 18, 2017, the court held a hearing on defendants' revised motion for remand. Following the hearing, the court denied the motion and ordered the parties to appear on February 26, 2018 for a pre-trial conference. [Note 4]

Counsel for all parties appeared for a pre-trial conference on February 26, 2018, and the court set the case down for trial in June, 2018. [Note 5] On June 7, 2018, the court conducted a status conference by telephone to discuss a purported new development on an adjacent property, and ordered the parties to report to the court their views on whether and why the trial ought to proceed. [Note 6] On June 11, 2018, plaintiff filed a motion in limine seeking to block the introduction of any testimony by the Board regarding the proposed development to be located at 125 Mohawk Trail, Greenfield. On June 12, 2018, defendants filed an opposition to plaintiff's motion in limine, a cross motion to remand, and a motion in limine to exclude the testimony and reports of plaintiff's traffic engineers.

The court took a view of the property on the morning of June 13, 2018. Following the view, the court conducted the first day of trial at the Franklin County Courthouse in Greenfield. Prior to the taking of evidence, the court heard counsel on, and denied, the motions in limine. Trial Tr. Vol. 1, at 52-56, June 13, 2018. The trial commenced on June 13th and concluded June 14, 2018. At the close of the taking of evidence, the court suspended the trial. The court ordered the parties to await receipt of the trial transcript, and to file and serve post-trial memoranda, and proposed finds of fact and rulings of law withing thirty (30) days of receipt of the transcript by the court.

On April 17, 2019, trial resumed for closing arguments. Counsel for both parties appeared and argued. The transcript of the closing arguments later was received by the court, at which time the court took the matter under advisement. I now decide the case.

III. FINDINGS OF FACT

1. Plaintiff Summit Distributing, LLC, is a New Hampshire limited liability company registered to do business in Massachusetts, with its principal office at 240 Mechanic Street, Lebanon, NH 03766.

2. Plaintiff applied for a special permit pursuant to Sections 200.6(C), 200-8.3, and 200-8.4 of the Greenfield Zoning Ordinance to allow the existing service station to be converted to a convenience store with the addition of a drive-through window for a donut shop.

3. The Property is owned by Plaintiff. For Plaintiff's title, see deed dated June 17, 2008, recorded with the Franklin Registry of Deeds in Book 5523, Page 213.

4. The Property is approximately 0.43 acres in area and is situated in the Town of Greenfield's ("Town")(see note 1, supra) General Commercial (GC) zoning district, as established by the Zoning Ordinance.

5. The Property currently is being used as a gas station, which is not allowed by right in the General Commercial zoning district.

6. The use of the Property for a gas station is a lawfully preexisting nonconforming use.

7. The zoning ordinance allows the use of "Drive-in or drive-through restaurant" in the General Commercial zoning district.

8. The zoning ordinance allows the use of "Take-out restaurant" and a "Restaurant, bar or lounge for serving food or drinks within the building" in the General Commercial zoning district.

9. The zoning ordinance allows the use of a "Retail establishment" in the General Commercial zoning district.

10. Section 200.6(C) of the Zoning Ordinance states in pertinent part that "preexisting nonconforming . . . uses may be extended, altered, or changed in use on a special permit from the Board of Appeals if the Board of Appeals finds that such extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing nonconforming use."

11. Section 200-8.3 of the Zoning Ordinance defines the procedure and the criteria for approval of a special permit, stating in part: "[t]he Special Permit Granting Authority shall grant a special permit only after finding that the proposed use or structure will not adversely impact adjacent properties, the neighborhood, the Town, or the environment."

12. Section 200-8.4 of the Zoning Ordinance sets out the procedure for approval of a site plan.

13. On or about March 23, 2016, Plaintiff applied for a special permit and site plan approval for the project.

14. Plaintiff provided the Board with a completed application, which, among other things, contained plans of construction and plot plans of the Property, and approval relative to the project from the Office of the Massachusetts Department of Transportation.

15. The Board addressed the application during three separate public hearings on or about March 23, April 14, and May 12, 2016, prior to the Board's vote to to deny the Plaintiff's application on July 14, 2016.

16. At a public meeting on or about July 14, 2016, the Board denied Plaintiff's application for a special permit and site plan approval.

17. As part of the Board's Decision, members provided the following reasons for the Plaintiff's denial:

a. "The location, the size of the lot, the Board's history with similar projects, and the [Plaintiff]'s observation at other Dunkin Donut locations in town . . . [and a belief that] the drive-thru will [not] work well.:

b. "[a belief that] the queuing between the intersection and the rotary will not be safe."

c. " . . . lot is too small . . . [and] the site location to the Mohawk/Newton Street intersection is too close, considering the queuing that will be [spilled] out onto the road . . . [and] there is limited space for emergency apparatus to park."

18. In rendering its Decision, the Board also relied on correspondence from the Town's Board of Health, Licensing Commission, Fire Department, DPW, Planning Board, and Planning Department.

19. The Decision was filed with the Greenfield Town Clerk on August 1, 2016.

20. After the ZBA Decision was filed with the Town Clerk, the parties engaged in mediation. As part of the mediation, Plaintiff's traffic engineering experts, Greenman-Pedersen, Inc., ("GPI") prepared a Traffic Impact Assessment ("TIA") for the Plaintiff's project.

21. Table 2 in GPI's TIA states that 32 vehicles enter the Property under existing conditions during the weekday AM peak hour.

22. Table 2 in GPI's TIA states that after the project is up and running, and the gas station, convenience store, and donut shop drive-thru are in operation, the "Proposed External Total Trips" entering the Property during the weekday AM peak hour will be 59 vehicles.

23. Of the 59 vehicles entering the Property during the weekday AM peak hour, the Trip Generation Summary states 38 vehicles will be customers of the gas station/convenience store, and 21 vehicles will be customers of the donut shop.

24. The TIA states, on page 12, that "[b]ased on transaction data from other Dunkin' Donuts locations, on an average weekday, 28 percent of customers were revealed to be walk-ins and 72 percent of the customers utilized the drive-through window." Seventy-two (72%) percent of the 21 donut shop customers entering the Property during the weekday AM peak hours is approximately 15 customers.

25. I do not credit the testimony of defendant's traffic expert Kien Ho when he stated that approximately 43 vehicles would utilize the drive-thru during the AM peak hour.

26. I credit the testimony of Kien Ho and Heather Monticup that the queue for the donut shop drive-thru window will experience the most traffic during the weekday AM peak hour.

27. I credit the testimony of Kien Ho, Heather Monticup, and Huseyin Sevincgil that the average transaction time for each customer at the drive-through window would be approximately three minutes.

28. I credit the testimony of Heather Monticup that the proposed drive-through as it is designed can stack an average of 12 vehicles before line of vehicles extends to the street line.

29. I credit the testimony of Heather Monticup that box trucks and vehicles with trailers, ie., vehicles with longer length, would not be able ordinarily to utilize the proposed drive-through.

30. I credit the testimony of Huseyin Sevincgil that the drive-through lane as designed meets industry standards, that it is 11 feet in width, and has a minium turning radius of 15 feet.

31. I credit the testimony of Huseyin Sevincgil that there is no local, state, or federal requirement to have a bypass lane for a drive-through window, ie., a second width of travel to allow vehicles not positioned in the drive-through queue to maneuver alongside and pass around vehicles that are in the queue.

32. I credit the testimony of Deputy Chief Mark Williams of the Greenfield Police Department that he has observed the traffic on Mohawk Trail heading east (ie., heading from the direction of the Interstate highway towards the center of town) back up from the Newton Street traffic lights all the way to the rotary and to the exit ramps off the rotary.

33. I credit the testimony of Deputy Chief Mark Williams that the Greenfield Police Department has some concern with emergency vehicle response through the Mohawk Trail/Newton Street interaction due to traffic and the general layout of traffic lanes in the area.

34. Captain Whitney, by letter, stated that the Greenfield Fire Department had no comment or issues with the proposed project that the Property.

35. I credit the testimony of Deputy Chief Mark Williams when he stated that the lack of a by-pass lane could pose a risk and that he disagreed with Captain Whitney's assessment.

36. I credit the testimony of Heather Monticup that the Property would have two points of ingress and egress: a west driveway and an east driveway.

37. I credit the testimony of Heather Monticup that vehicles exiting either driveway would be permitted to turn either left or right.

III. DISCUSSION

A. Standard of Review.

In reviewing a special permit decision of a local permit granting authority, the court applies a "combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954)). The court reviews the evidence presented to the court, and makes findings of fact de novo, without deference to the Board's findings. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see also Wendy's Old Fashioned Hamburgers, 454 Mass. at 381 ("a judge is to give 'no evidentiary weight' to the board's factual findings"). At the same time, the judge must defer to "the reasonable construction that a [local] board . . . gives to the by-laws it is charged with implementing." Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 29 (2002). The court's review is limited because of the requirement to defer to the judgment of the Board due to its "home grown knowledge about the history and purpose of its town's zoning by-law." Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). The Supreme Judicial Court has decided that courts need to give "substantial deference to the construction placed on a statute or an ordinance by the agency charged with its administration," in this case the Board, interpreting the Zoning Ordinance. Manning v. Boston Redevelopment Auth., 400 Mass. 444 , 453 (1987). Furthermore, "it is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling." Subaru of New England, Inc., v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 488 (1979), quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 , 821 (1973).

The combination of these principles means that a challenged board decision can only be overturned judicially if "it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). To determine if the Board's decision was based on a legally untenable ground, the court looks to the Zoning Ordinance to determine the intention of the local legislative body, and the meaning of the local enactment, and then compares that intention and meaning with the Board's decision to make sure that the decision is consistent with the local ordinance, properly construed. See Tambone v. Board of Appeal of Stoneham, 348 Mass. 359 (1965); D'Ambra v. Zoning Bd. of Appeal of Attleboro, 324 Mass. 61 (1949).

As an initial matter, the court may consider whether the Board conducted the deliberative process in a fair and proper manner. To determine if a decision is "unreasonable, whimsical, capricious or arbitrary," the court may look at both the evidence presented to the Board by the applicant and the evidence given by the Board in its decision. See Slater v. Board of Appeals of Brookline, 350 Mass. 70 (1966) (deciding that the board did not adequately consider the plaintiff's evidence as to the necessity for off-street parking before making its determination); Mahoney v. Board of Appeals of Winchester, 344 Mass. 958 (1962) (holding that the board, in its denial of the project, gave "no substantial evidence that increased traffic . . .would be consequential"). The decision can be overturned if either the Board did not properly consider the applicant's evidence when making its decision, or if the Board did not provide sufficient reasoning for its decision. See Salah v. Board of Appeals of Canton, 2 Mass. App. Ct. 488 (1974) (holding that the board incorrectly interpreted the applicant's evidence and used the incorrect interpretation as the basis for its decision); Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715 (1974) (concluding that remand to the board was necessary because the board did not fully explain the reasons for its decision). But this threshold exercise is calculated to have the court determine whether the Board, as a matter of procedural fairness, gave the proper consideration to the facts put in front of it. The determination of the facts, which are applied by the court to assay the propriety of the result reached by the Board, is for the court, de novo, on the evidence properly before the court and weighed by it. Here, it is apparent that the Board considered adequately the competing facts and viewpoints. I adhere to the conclusion that no remand is indicated to have the Board conduct further hearings or revise its Decision.

Additionally, while the judge can order a modification of a decision of a board under G.L. c. 40A, §17, "modifications and changes should be analyzed and approved by the Board, which is better equipped than a court to consider such matters." Board of Appeals of Dedham v. Corporation Tifereth Israel, 7 Mass. App. Ct. 876 , 876 (1979). Nevertheless, should it be clear that remanding the matter to the board would be unproductive, [Note 7] then G. L. c. 40A, §17 allows a court to "make such other decree as justice and equity may require." Id. There are some limits as to how far a court can modify a decision, however, and Massachusetts courts have consistently decided that judges are only allowed to make "a decree according to law" and are not allowed to "invade the whole area of administrative discretion." Pendergast, 331 Mass. at 588; Board of Appeals of Dedham v. Corporation Tifereth Israel, 7 Mass. App. Ct. 876 , 876 (1979).

B. Merits of the Board's Decision

Determining that it is appropriate to do so, and that no remand to the Board is indicated, after finding the essential facts following trial, I now reach the merits of the Decision the Board rendered.

Ultimately, the case at bar does not present one of those "exceptional cases" where the court will order that a special permit be issued. See Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871 , 875 (2015). As discussed in greater detail below, there are independently-sufficient grounds on with the Board reasonably could have denied the special permit.

The Zoning Ordinance states that a "preexisting nonconforming . . . use[] may be extended, altered, or changed in use on a special permit from the Board of Appeals if the board of Appeals finds that such extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing nonconforming use." §200.6(C). Furthermore, the Zoning Ordinance requires that "[p]rovisions . . . be made for convenient and safe vehicular and pedestrian circulation within the site and in relation to adjacent streets and properties." §200-8.3(F)(1). I conclude that there are significant issues with the internal traffic on the Property that are occasioned by the drive-through window, which would not be present but for the sought- after drive-through, and which support a decision denying the special permit.

The problems with traffic circulation on the Property include (1) the tight, constrained configuration of the relatively small site, starting with the already existing gas station and exacerbated by the proposed addition of a drive-thru lane with a hard-to-maneuver configuration, forced by the limitations of that site, and (2) the Property's location in relation to the busy stretch of Route 2A and the nearby rotary and ramps. These factors are a recipe for congestion, a legitimate source of safety concerns, and a proper basis for denial of a special permit.

To start, I do not necessarily subscribe to the Board's stringent reading of Section 200-8.3(F)(1) that Plaintiff carried some heightened special burden to show that "vehicular and pedestrian circulation [on the site] would be both convenient and safe." Def.'s Consol. Post-Trial Mem., 28-29, Dec. 10, 2018. However, after hearing the evidence de novo, I find that there was a rational basis for the Board to find that the addition of a drive thru-lane on a site with a pre-existing gas station would not satisfy, objectively, the mandate of Section 200-8.3(F)(1). I do note that that relevant section of the local zoning law is cast in the conjunctive; it asks the Board to pay attention not only to the safety of the pedestrian and vehicular circulation within the site and in relation to adjacent streets and property," but also to the convenience of that circulation. While I conclude that the Board reasonably was able (on the facts I independently have found) to decide that the project would give rise to at least some lack of safety in the on-site circulation, there can be no doubt that the project, if put in place, would produce a measurable amount of circulatory inconvenience.

As stated above, the Property is 0.43 acres and already consists of gas station pumps, parking spots, and a convenience store. Plaintiff is seeking to add a drive-thru window and additional parking spaces. In response to a question regarding internal traffic circulation, Heather Monticup testified:

Q: Do you view that as a matter of safety in question or as a matter of convenience?

A: I don't - - I don't think it's - - yeah, probably convenience. It's not unsafe to - - when you're traveling at very low rates of speed, to be pulling out of a pump and have to wait for a car. It's inconvenient, that's for sure, more delay on the driver.

Trial Tr. 51, Jun. 14, 2018.

It is clear that the proposed use would not attract traffic of a type substantially dissimilar from the site's current customers. However, it is without argument that the proposed use will increase the volume of vehicular traffic visiting the site. Table 2 in GPI's Traffic Impact Assessment states that 32 vehicles enter the Property under existing conditions during the weekday AM peak hour. Trial Ex. 25(K). Table 2 states that after the gas station, convenience store, and donut shop drive-thru are operating, the "Proposed External Total Trips" entering the Property during the weekday AM peak hour will be 59 vehicles. Id. Of those 59 vehicles, 38 vehicles will be customers of the gas station and 21 vehicles will be customers of the donut shop. Id.

Taking into account the size of the Property, the increase in approximately 27 vehicles in the AM peak hour, and those vehicles' need to negotiate the gas station pumps, parking spots, and a drive-thru lane, I find the Board's main rationale for denying plaintiff's application for a special permit, concerns over vehicular and pedestrian circulation on the Property, to be reasonable and with merit.

Having considered carefully the testimony and other evidence, and having had the benefit of a view of the project location in its current layout, I am convinced that the Board acted reasonably in determining that if the project is put in place, site circulation will be materially and adversely affected. My view of the site supported the defendants' analysis of the evidence. The overwhelming impression I had on the view is that this is a site which is small for what is currently underway upon it, cramped, with maneuverability challenges for existing patrons and employees given the current use. I conclude that the installation of the new use, with the drive-through window and queue, and the reconfigured parking, would turn an already dense layout into a constrained, overloaded one, with little or no room for error for those moving about on the site in vehicles and on foot. The evidence leads me to determine that the courtesy and the choreography--among the users of the 16 parking spaces, the fuel pumping stations, and the drive-through lane--that would be required to keep circulation on the site flowing safely, efficiently and conveniently, is unlikely to exist on a regular basis if the project is put into place.

I also find a rational basis for the denial of the special permit based upon Property's location proximate to Route 2A (the Mohawk Trail) and the rotary. First, I agree with Plaintiff that Kien Ho, the Board's expert, incorrectly apportioned the number of vehicles that would utilize the drive-through in the AM peak hour. On direct examination, Mr. Ho testified that 43 cars would use the drive-through in the AM peak hour. Trial Tr. 157, Jun. 14, 2018. In reality, and as expanded upon during his cross-examination, a more accurate number of vehicles entering the Property and utilizing the drive-through during the AM peak hour would be closer to 15. Id. at 181-194. With that said, even with an average of 15 trips during the peak AM hour, it is still reasonable, given the layout of the site and proximity to the Mohawk Trail, to be concerned with the flow of traffic on and off the site.

The expert traffic engineers in this case testified as to backups caused by the Newton Street traffic signal. These backups may, in certain circumstances, block the eastern and western driveways vehicles would use to enter and exit the Property. Although Plaintiff is correct in saying, as a general matter, that driveways routinely are blocked at signalized interactions, and that there is not any state standard categorically prohibiting this occurrence, that does not prevent the Board from taking into consideration the very real possibility of backups onto the Mohawk Trail in relation to off-site traffic circulation caused by the challenges at the signalized intersections.

The drive-through as currently proposed would accommodate the stacking of 12 vehicles before cars would be spilling over into the street. Trial Tr. 121-122, June 13, 2018. Although practically speaking, it would be unlikely that more than 12 vehicles would pull into the drive-through all at the same time, with 15 average trips in the AM peak hour, and a three minute per vehicle average wait time at the window, it is not unreasonable to have some concern about vehicles backing up into the highway. This concern, combined with the fact that traffic from vehicles patronizing the gas station and convenience store would be both entering and exiting the site at the same time, is rational and directly related to a valid concern about the failure to supply safe and convenient circulation of vehicular and pedestrian traffic on the site.

I find it particularly problematic that, in the stretch where the west-bound side of the Mohawk Trail abuts the site's frontage, the road has but one through travel lane, and, just to the north of that, at the Property's frontage, a limited-width shoulder, rather than a full-bore break-down lane. This makes likelier the prospect that vehicles entering and exiting the Property may come into conflict with the vehicles moving westward along Route 2A. On the evidence I credit, I cannot rule out the possibility that cars patronizing the Property may occlude the Route 2A travel lane to some degree at some times, or that traffic on the State highway might limit the ability of vehicles leaving the project site from safely and conveniently doing so at times. This presents a valid concern justifying the Board's denial of the requested permit, given the criteria the Zoning Ordinance establishes. And this is so notwithstanding any MassDOT permission the project may have relative to passage over the Property's curb cuts to and from Route 2A. The role of the Board under the Zoning Ordinance is not diminished by the independent review authority of the Department of Transportation.

Ultimately, the Board has discretionary authority to grant a special permit, and if there is "any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and the Zoning Enabling Act, the board's action must be sustained regardless of other reasons which the board may have advanced." Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349 , 356 (2001) quoting S. Volpe & Co. V. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). Although not extensive, the Board in its Decision did cite traffic circulation concerns, and the facts, as I have found them to be following trial, fully support this determination.

IV. CONCLUSION

The Decision of the Board to deny the special permit is not "unreasonable, whimsical, capricious or arbitrary," nor is it based on a legally untenable ground. The Board's Decision was one a rational Board lawfully could have reached on the facts found by the court; the Decision will be upheld.

Judgment accordingly.