The legalization of the sale of marijuana in Massachusetts is still a relatively new phenomenon, having been set in motion by the passage of a law adopted by ballot referendum, St. 2016, c. 334, § 5, as amended by the passage of St. 2017, c. 55, amending G. L. c. 94G. The implementation of the legalized sale of marijuana, though being conducted carefully and cautiously pursuant to the regulations adopted by the Cannabis Control Commission, see 935 CMR 500, et seq., has led to inevitable bumps in the road in rol?ing out the legalized retail sale of a formerly illegal substance across the Commonwealth for the first time since the ending of Prohibition in 1933. As with the implementation of any new statute, questions arise upon its
implementation. Thus, the courts have recently, or are presently, dealing with unresolved questions concerning the interplay between local zoning bylaws and G. L. c. 94G, Valley Green Grow, Inc. vs. Charlton, Mass. Land Ct., No. 18 MISC 000483 (RBF) (Mar. 7, 2019); whether conversion of a previously approved medical marijuana dispensary to a retail facility is subject to regulation or prohibition under municipal zoning bylaws, Rosenfeld vs. Mansfield, Mass. Land Ct., No. 19 MISC 000357 (HPS) (Apr. 8, 2020) (SJC-13029); and whether a municipality may impose a moratorium on the conversion of a medical marijuana dispensary to a retail marijuana dispensary, Revolutionary Clinics II, Inc. vs. Cambridge, Mass. Super., No. 1981CV03035 (Jan. 24, 2020). However, in the present case, the analysis of whether a municipality overstepped its bounds in denying a request for a special permit for the sale of marijuana is no different than for
any other proposed use requiring a special permit.
In the present case, the Taunton Municipal Council ("Municipal Council") contends that it denied the plaintiff Bask, Inc.'s application to sell marijuana based on the Municipal Council's concern that the proposed retail marijuana dispensary would exacerbate a difficult traffic situation near the proposed retail marijuana dispensary. For the reasons stated below, I find and rule that the Municipal Council presented no credible evidence at trial to counter the evidence presented by the plaintiff that no such traffic problem would be created or exacerbated by the proposed facility, and that in any event, I find and rule that the reason given by the Municipal Council was a pretext. Accordingly, under the circumstances present in this case, the Municipal Council's denial will be annulled and the special permit will be ordered to be issued.
This case was originally scheduled for trial in April, 2020, but was rescheduled because of the COVID-19 pandemic. Following the issuance of orders by the Supreme Judicial Court and the Land Court providing procedures for conduct of cases during the pandemic, the case was rescheduled for trial by videoconference. I conducted a view on August 24, 2020, and the case was tried before me, by videoconference, on August 25, 26, and 27, 2020. Following the submission of a post-trial brief and requests for findings by the plaintiff, [Note 1] I took the case under advisement on October 9, 2020.
FACTS
Based on the facts stipulated by parties, the documentary and testimonial evidence admitted and trial, my view of the subject property, and my assessment as trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows: [Note 2]
1. The property at 400 Winthrop Street in Taunton (the "Property") is owned by Cullen-400 Winthrop Street LLC. [Note 3] Pursuant to a letter of intent signed by the owner and the plaintiff, the plaintiff, Bask, has an option to lease the Property subject to the receipt of all of the approvals necessary to operate a retail marijuana dispensary at the Property. [Note 4]
2. The Property is a 20,271 square foot parcel on the south side of Winthrop Street. The Property has approximately 252 feet of frontage on Winthrop Street and approximately 61 feet of frontage on Cohannet Street. [Note 5]
3. The Property is located in a Highway Business District under the Taunton Zoning Ordinance (""Ordinance"). A retail marijuana dispensary is allowed upon the issuance of a special permit in the Highway Business District under the Ordinance. [Note 6]
4. The minimum area and frontage requirements for a retail use in the Highway Business District in which the Property is located are, respectively, 15,000 square feet of area and 100 feet of frontage. [Note 7]
5. The Property is improved by a 2,000 square foot one-story retail building set back from Winthrop Street 25 to 26 feet and located centrally on the site. [Note 8] The building on the Property is currently operated as a convenience store and package store selling beer and wine. The Property was formerly operated as a used car dealership. [Note 9]
6. The Property fronts on the south side of Winthrop Street. Winthrop Street is a well-travelled state highway also known as Route 44. It runs east-west past the Property. Downtown Taunton is a few miles east of the Property on Winthrop Street, and Winthrop Street continues west from the Property to the Rhode Island state line in Seekonk, and on to Providence in Rhode Island. [Note 10] The portion of Winthrop Street in the vicinity of the Property is a busy commercial corridor dominated by commercial uses normally expected to be found on such a street, including gas stations, convenience stores, automobile dealerships, and other commercial uses that depend on automotive traffic. Cross-streets off of Winthrop Street, including the nearby South Walker Street, lead to residential neighborhoods, but the Highway Business District extends for about 500 feet to the north and the south of the centerline of Winthrop Street, into some areas containing residences.
7. A traffic light was installed in May, 2019 on Winthrop Street, just west of the Property, at the intersection of North Walker Street. [Note 11] This traffic light has been the source of evening rush hour back-ups for traffic travelling to the west from Taunton. [Note 12]
8. The Property is also bounded on the east by Cohannet Street, a local street intersecting with Winthrop Street. The Winthrop Street Cohannet Street intersection is unsignalized, with a stop sign for traffic entering onto Winthrop Street from Cohannet Street. [Note 13]
9. Bask, after entering into a host community agreement with the city of Taunton, [Note 14] applied to the Municipal Council for a special permit to operate a retail marijuana dispensary. [Note 15]
10. Bask was awarded a provisional license for the development of a retail marijuana establishment at the Property by the Cannabis Control Commission on January 9, 2020. [Note 16]
11. Bask proposes to operate a retail marijuana dispensary at the Property, with only retail sales taking place at the Property. Cultivation and processing of product to be sold at the Property will occur at an existing licensed Bask facility located in Freetown. [Note 17] Bask also operates one other retail marijuana facility in Massachusetts, in Fairhaven. [Note 18]
12. Bask proposes to utilize the existing building on the site, currently operating as a convenience store and beer and wine package store, for its proposed marijuana retail dispensary, but plans to revamp the handling of traffic and parking on the Property from the present configuration, and to relocate the entrance from the front to the east side of the building.
13. Presently, there are three curb cuts and two parking lots, one to the east of the building and one to the west of the building, with no ability to drive from one side of the building while remaining on-site, and with no regulation of the three curb cuts. [Note 19]
14. Bask proposes to retain each of the three existing curb cuts, but they would be modified and limited to either one-way-in or one-way-out traffic. The curb cut on Cohannet Street would be limited to traffic exiting the Property, and this traffic would be directed to turn only left, or north, toward Winthrop Street, where vehicles exiting the Property could turn either left or right on Winthrop Street. [Note 20]
15. The easterly of the two curb cuts on Winthrop Street would be limited to traffic entering the Property, and would be the only vehicular entrance. Traffic would enter into the easterly of the two parking lots, but could drive on-site across the Property in front of the building to enter the west parking lot by way of an 18-foot wide on-site driveway. [Note 21]
16. The westerly curb cut, which is closest to the signalized intersection at North Walker Street, would be an exit-only curb cut, and vehicles exiting at this curb cut would be limited to making right turns only, so that as they enter Winthrop Street, they could only travel in an easterly direction. The purpose of prohibiting left turns at this exit is to prevent conflicts with westbound traffic backed up at the traffic light at North Walker Street. [Note 22]
17. The westerly of the two parking lots at the Property will have 12 parking spaces, and will be used for employees only. The westerly parking lot also is proposed to have a secure loading area next to the building. [Note 23]
18. The easterly of the two parking lots will be for customers, and will have 17 parking spaces, for a total of 29 off-street parking spaces proposed to be provided at the Property. The Ordinance requires a minimum of 10 parking spaces for a retail facility of the size proposed at the Property. [Note 24]
19. Bask also proposes to remove a planter currently in front of the building so as to create an 18-foot wide corridor to allow for on-site circulation between the two parking lots on the Property. The 18-foot wide lane, wide enough to allow two cars to pass one another, would be one-way during business hours, and two-way at closing time, allowing employees to access the west parking lot from the entrance at the easterly curb cut, and allowing them to leave either by making a right turn out of the westerly curb cut, or to leave by way of the exit onto Cohannet Street. [Note 25]
20. The Municipal Council held a hearing on Bask's application for a special permit on October 1, 2019. The Municipal Council voted five in favor of granting the special permit, and four opposed, thereby denying Bask the two-thirds vote necessary for approval of its application. The Municipal Council issued a written decision, dated October 1, 2019, containing its findings in support of its denial. The decision was filed with the City Clerk on October 8, 2019. [Note 26]
21. In its decision, the Municipal Council stated that it
considered whether or not the proposed use was in harmony with the general purpose and intent of the zoning ordinance. The Municipal Council took various factors into consideration, including the needs of the community, the effect of the development upon the neighborhood and the community, including socioeconomic impacts, utilities, traffic and landscaping, and, the health, safety and general welfare of the present and future inhabitants. The council's considerations included the location, the existing neighborhood, congestion in the streets, and safety. [Note 27]
22. In considering the above factors, the Municipal Council made findings almost exclusively with respect to traffic-related factors, as follows:
While not exclusive, concerns about increased traffic, a convoluted onsite traffic flow and ancillary effects of such increased traffic were predominant, as well as the location of the proposed project in reaction to a traffic light, offset intersecting streets, and area neighborhoods and residences. It is a heavily travelled area presently, and the proposed project would increase traffic, more so than other historical uses of the property. The Council took into consideration the effect of traffic on the neighborhood, including noise, impact on pedestrians, impact on residents and passersby alike, quality of life concerns, and, safety concerns related thereto. The Municipal Council also desired a site in which the proposed use was set back from the road. The Council determined that the proposed use would create a nuisance and potentially a serious hazard to vehicles and pedestrians. [Note 28]
23. On January 21, 2020, less than four months after the Municipal Council disapproved Bask's application for a special permit for the retail sale of marijuana to adults at 400 Winthrop Street, it considered and approved, by a vote of 8-1, an application for a special permit for the retail sale of marijuana to adults at 354 Winthrop Street.
24. The proposed, and approved, retail marijuana dispensary at 354 Winthrop Street is to be located in a building with 4,140 square feet of floor area, approximately twice the size of the building on the Property, is located in the same Highway Business District as the Property, and is almost exactly one-quarter of a mile east of the Property on Winthrop Street. [Note 29] The proposed retail marijuana dispensary at 354 Winthrop Street is expected to generate approximately twice as many vehicle trips as the one proposed by Bask at the Property. [Note 30]
25. In approving the special permit for 354 Winthrop Street, the Municipal Council wrote in its decision that it "took into consideration the needs of the community, the effect of the development upon the neighborhood and the community, in terms of socioeconomic impacts, utilities, traffic, landscaping, and the health and welfare of the inhabitants." The Municipal Council stated in its decision with respect to the Property that it took exactly the same factors into consideration in denying the special permit for the Property. [Note 31]
DISCUSSION
Bask appeals from the Municipal Council's denial of its application for a special permit to conduct retail marijuana sales at the Property. General Laws 40A, §17 provides that "[a]ny person aggrieved by the decision of...any special permit granting authority... may appeal to the land court department...." The court's inquiry in reviewing the decision of a board of appeals or a special permit granting authority is a hybrid requiring the court to find the facts de novo, and, based on the facts found by the court, to affirm the decision of the special permit granting authority "unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). This involves two distinct inquiries, the first of which looks to whether the special permit granting authority's decision applied incorrect standards or criteria. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). Only after determining that the decision was not based on a legally untenable ground does the court then proceed to the second, more deferential inquiry, in which "the [special permit granting authority]'s discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the [special permit granting authority]'s conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law." Id. at 74-75. Those "rarely encountered points" include those occasions where there are no facts to support a special permit granting authority's conclusion that one of more of the factors required to be considered by the local bylaw or ordinance have not been met. A special permit granting authority "may not conclude the proposed use is not in harmony [with the intent of the bylaw] in the absence of credible evidence." Tresca Brothers Sand and Gravel, Inc. v. Bd. of Appeals of Wilmington, 97 Mass. App. Ct. 1128 (July 8, 2020) slip op. at 6 (Rule 1:28 Unpublished Decision); see also Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 485 (2012) (board may not deny special permit for expansion of nonconforming use "in the absence of credible evidence").
A special permit granting authority is required to make detailed findings in support of its decision. Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 220 (1982). Notwithstanding the requirement for detailed findings in general, perhaps somewhat paradoxically, "the refusal of a board to grant a special permit...does not require detailed findings by the board." Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981 , 984 (1990). This does not mean that the special permit granting authority is relieved of the requirement to state its reasons for the denial, but rather, that in the case of a denial of a special permit, "the requirement that the [special permit granting authority] provide reasons supporting its decision, is less demanding than if the [special permit granting authority] had acted affirmatively." Bd. of Aldermen of Newton v. Maniace, 429 Mass. 726 , 732 (1999).
When a special permit granting authority's reasons given in support of a denial are merely conclusory, that is, "[w]hen a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, [the court] is constrained to conclude that the decision is 'unreasonable, whimsical, capricious or arbitrary,' and therefore invalid." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 ,386 (2009). Where the special permit granting authority fails to give any reasons in its decision, but offers reasons at trial, or offers reasons at trial that are different than those offered in its decision, the court is "not obliged to search for facts in the record to support a rationale that the board did not itself provide." Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999).
"On review, the judge's role is to determine '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'... [W]here no such reasons are given...a reviewing court cannot be satisfied that a board's actions are not arbitrary, a pretext, or otherwise impermissible." Id. at 387, quoting in part, Vazza Props., Inc, v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). In fact, a court need not entertain a board's efforts "to defend its denial of the special permits at trial based on grounds it had never articulated before." Cumberland Farms, Inc. v. Bd. of Appeals of Wellfleet, 90 Mass. App. Ct. 1118 (2016) at p. 2 (Rule 1:28 Unpublished Decision).
I. THE MUNICIPAL COUNCIL'S DECISION WAS BASED ON A LEGALLY UNTENABLE GROUND.
Turning to the first inquiry, a decision is based on legally untenable grounds when premised "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 board's 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, supra, 59 Mass. App. Ct. at 73 (internal citations omitted).
A denial of a special permit is based on a legally untenable ground if the reason for the denial is that the special permit granting authority favors another applicant for the same use at a nearby property. Clear Channel Outdoor, Inc. v. Zoning Bd. of Appeals of Salisbury, 94 Mass. App. Ct. 594 (2018). Such a decision is legally untenable because it "'injects criteria not found in the enabling act.'" Id. at 599, quoting Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 156 (1977).
The Municipal Council's factual reasons for denial related almost exclusively to consideration of additional traffic it expected to be generated by the proposed retail marijuana dispensary. These concerns were largely expressed in terms of the additional vehicle trips that the Municipal Council expected would exacerbate evening rush hour backups at the recently installed traffic signal at the intersection of North Walker Street and Winthrop Street. The Municipal Council emphasized in its testimony and presentation of photographic and video evidence long evening rush hour backups starting on Winthrop Street at the traffic light at the corner of North Walker Street, and extending back more than a quarter of a mile to the east, well past the property at 354 Winthrop Street, the site of another proposed retail marijuana dispensary. [Note 32] Rather than distinguishing why the proposed retail marijuana dispensary at the Property would exacerbate traffic problems on Winthrop Street while the larger proposed retail marijuana dispensary at 354 Winthrop Street, a short walk away, would not, the Municipal Council instead highlighted in its presentation at trial that the traffic backups on which it largely based its claims extended from the traffic light all the way past the property at 354 Winthrop Street, a quarter of a mile to the east of the Property. Thus, the evidence offered by the Municipal Council showed, and emphasized, that to the extent there is a traffic problem on Winthrop Street, it exists in front of both the Property at 400 Winthrop Street, and the site of the other proposed marijuana dispensary at 354 Winthrop Street: The Municipal Council did not show, or attempt to show, why a marijuana dispensary at 400 Winthrop Street would make this problem worse, but a larger marijuana dispensary at 354 Winthrop Street that would generate approximately twice as many vehicle trips would not. [Note 33]
Yet, less than four months after denying a special permit for a retail marijuana dispensary at the Property because it would ostensibly exacerbate the traffic problem on Winthrop Street, the Municipal Council approved a retail marijuana dispensary at 354 Winthrop Street, twice the size as the one proposed for the Property, apparently satisfied that this facility, although twice the size, generating twice as many vehicle trips, and located next to the same traffic backups, would somehow not contribute to the traffic problem on Winthrop Street. [Note 34] Less than four months after denying a special permit for a retail marijuana dispensary at the Property ostensibly because of its concern that a marijuana dispensary would exacerbate traffic backups on Winthrop Street, it approved the retail marijuana dispensary at 354 Winthrop Street without even asking for or requiring a traffic impact study to assess traffic impacts of the proposed facility on traffic on Winthrop Street. [Note 35]
The Municipal Council also came to opposite conclusions for the two proposed marijuana dispensaries with respect to "the needs of the community, the effect of the development upon the neighborhood and the community, in terms of socioeconomic impacts, utilities, traffic, landscaping, and the health and welfare of the inhabitants." But the Municipal Council failed to make any findings of fact with respect to these factors that could possibly support its conclusion that the proposal for 400 Winthrop Street would negatively impact the community in terms of socioeconomic impacts, utilities, traffic, landscaping, and the health and welfare of the inhabitants, or that could explain how it reached the opposite conclusion for a larger proposed facility so close to the Property.
The Municipal Council offered no credible explanation at trial for the distinction it drew between the two proposals, located near to each other on the same busy traffic corridor. Both properties are located literally adjacent to the same claimed nightly traffic jam, and yet one was denied on this basis, and the other was approved despite being twice the size and being expected to generate twice the traffic on the same roadway. This factual situation is virtually indistinguishable from the decision found to be legally untenable in Clear Channel Outdoor, Inc. v. Zoning Bd. of Appeals of Salisbury, supra, 94 Mass. App. Ct. 594 , in which a local board impermissibly denied one special permit application for a digital billboard and approved another because two members of the board favored one applicant over the other. Furthermore, "'the general deference afforded actions of a local [special permit granting authority] may yield to a court's sense of fairness' when it appears that special permit granting authority has applied 'dramatically different standards to similarly situated applicants.'" Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 388, quoting B. C. Levey, Massachusetts Zoning and Land Use Law, § 7-22, at 195, 196 (1996).
I find and rule, based on the evidence presented at trial, and on my view, which included views of both properties, that the traffic concerns and other concerns expressed by the Municipal Council as the basis for its denial, were pretexts, and that the real reason for its decision was other than as stated in its written decision. This is the essence of a decision that is based on reasons that are "mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Vazza Props., Inc. v. City Council of Woburn, supra, 1 Mass. App. Ct. at 312. I need not determine definitively in this respect what the Municipal Council's real reasons for denial were. By concluding that the reasons given could not have been the real reasons for denial, in light of the unexplained different results for two almost identically situated properties, I have determined that the Municipal Council's decision was either arbitrary or its reasons for denial were legally untenable.
II. THE MUNICIPAL COUNCIL'S DENIAL WAS NOT RATIONALLY SUPPORTED BY CREDIBLE EVIDENCE.
Having established that the Municipal Council's decision was not legally tenable, I need not consider whether any rational view of the facts supports the Municipal Council's conclusions. See Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass. App. Ct. 450 , 455 (2009). However, even under this more deferential part of the court's inquiry, the Municipal Council's decision does not withstand scrutiny. This inquiry looks to "whether the [Municipal Council] has denied the application by applying those criteria and standards in an 'unreasonable, whimsical, capricious or arbitrary' manner." Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 74. "The board, in the proper exercise of its discretion, is free to deny a special permit even if the facts show that such a permit could be lawfully granted." Pioneer Home Sponsors, Inc. v. Bd. of Appeals of Northampton, 1 Mass. App. Ct. 830 (1973). However, a special permit granting authority may not deny a special permit "in the absence of credible
evidence" supporting the reasons given for its denial. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. supra, at 485. Applying this standard, I find that the Municipal Council's reasons for denial are not rationally supported by the facts, or are arbitrary and unreasonable.
The Municipal Council's findings were to a great extent conclusory and devoid of factual support: "[T]he proposed use is not in the best interest of the City...the proposed use was not in harmony with the general purpose and intent of the ordinance." [Note 36] These conclusory findings, on their own, cannot support a denial. Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 386. The factual findings arguably intended to support these conclusions are addressed below.
a. The Council's Findings that the Proposed Facility Would Exacerbate Traffic Problems on Winthrop Street and in the Neighborhood and Would Create a Nuisance Were Not Supported by Credible Evidence and Were Arbitrary and Unreasonable.
The Municipal Council, in its decision and at trial, maintained that increased traffic problems on Winthrop Street and in the nearby neighborhood expected as a result of the proposed retail marijuana dispensary was its "predominant" reason for denial of Bask's application. In this regard, the Municipal Council found that:
While not exclusive, concerns about increased traffic, a convoluted onsite traffic flow and ancillary effects of such increased traffic were predominant, as well as the location of the proposed project in reaction to a traffic light, offset intersecting streets, and area neighborhoods and residences. It is a heavily travelled area presently, and the proposed project would increase traffic, more so than other historical uses of the property. The Council took into consideration the effect of traffic on the neighborhood, including noise, impact on pedestrians, impact on residents and passersby alike, quality of life concerns, and, safety concerns related thereto... The Council determined that the proposed use would create a nuisance and potentially a serious hazard to vehicles and pedestrians.
Winthrop Street is a "principal arterial roadway" [Note 37] with a traffic volume of about 14,000 vehicles passing the Property daily. [Note 38] A traffic light was installed on Winthrop Street in May, 2019 just west of the Property at the intersection of North Walker Street. The traffic light has improved access for vehicles entering Winthrop Street from North Walker Street, and is expected to reduce the number of accidents caused by vehicle conflicts between vehicles making left turns onto North Walker from Winthrop and onto Winthrop from North Walker. But until a recent change in the timing of the signal expected to have become effective in October, 2020, which is expected to improve the situation, the new traffic light also caused long backups for westbound traffic during the evening peak hours, extending eastward from the light, past the Property, and past the site of the subsequently approved retail marijuana dispensary at 354 Winthrop Street.
Heather Monticup, a registered professional engineer with a concentration in traffic engineering, testified on behalf of Bask that she conducted a traffic impact and access study of the Property and the nearby streets in March, 2020. [Note 39] She testified that the convenience store and beer and wine package store currently operating at the Property has three curb cuts, two onto Winthrop Street, and one onto Cohannet Street. None of these are regulated to limit incoming and outgoing traffic. In order to minimize conflicts, the configuration for the proposed marijuana dispensary will change the three driveway entrances so that the westerly curb cut will be for right turn exiting only, with no left turns allowed, so as to prevent cars at the Property from conflicting with the queue of cars at the light, which is closest to that side of the Property. The easterly curb cut will be for entrance to the Property only, for the same reason. Vehicles exiting the Property will only be allowed to make a left turn onto Winthrop Street from Cohannet Street, after exiting the Property at the Cohannet Street exit, so as move left turn movements 350 away from the new light, which is as far away as possible. I credit Ms. Monticup's testimony that this arrangement will prevent worsening of the situation (assuming it is not otherwise resolved by the change in timing of the signal) and I credit her testimony that this arrangement will result in an improvement in terms of safety and queuing times over the current situation for traffic entering and leaving the parking lots for the current convenience and package store. [Note 40]
I also credit Ms. Monticup's testimony that the proposed new retail marijuana dispensary at the Property will not have any appreciable harmful effect on traffic on Winthrop Street or other nearby streets. I credit the conclusions she testified to with respect to her traffic study, indicating that traffic from the proposed dispensary will not result in other than de minimis increases in queuing times at the site driveways and adjacent intersections, and will not result in a deterioration in level of service at any intersection, with the exception of the intersection of Winthrop at North Walker, which will experience only a technical decrease from a level of service of "B" to "C" because of a 0.8 second increase in queuing times only on Saturdays at the midday peak hour. [Note 41] I find this to be a de minimis change. Ms. Monticup further testified, and I credit her testimony in this respect, that none of the studied intersections will be exposed to a level of traffic above their maximum capacity as a result of
traffic generated by the proposed marijuana dispensary. [Note 42]
The Municipal Council offered no admissible evidence, credible or otherwise, to counter the evidence presented by Bask, which I have credited, that the proposed marijuana dispensary will not add to traffic difficulties on Winthrop Street or at other nearby intersections, and will in some respects add to safety and improve traffic notwithstanding a slight increase in vehicle counts, and that it would be operated safely in terms of traffic movements. Based on the facts proved at trial, there was no rational basis for the denial of the requested special permit on the basis of traffic-related issues or on the basis of the conclusory finding that the proposed use would create a nuisance and safety hazard to vehicles and pedestrians.
The Municipal Council's decision was arbitrary and unreasonable for the additional, independent reason that its approval of the special permit for the larger retail marijuana dispensary at 354 Winthrop Street less than four months after the denial of the application for 400 Winthrop Street, with no apparent explanation at trial demonstrating why one facility would exacerbate traffic and the other larger facility generating twice as many vehicle trips would not, or why one facility would negatively affect the neighborhood and the other would not, is inherently and demonstrably arbitrary. See Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 388 (Municipality's claims of traffic as valid justification for denial of special permit belied by granting of similar relief to abutter on same street); Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990) (Board's decision denying zoning relief to project that would have added 296 vehicle trips on basis of traffic impact on adjacent roadway, followed by approval, within a year, of other projects that would add 1,571 vehicle trips to same roadway, was "unreasonable, whimsical, capricious, and arbitrary...to base its exercise of discretion on an imperceptible increase in traffic congestion which had existed for years, while approving, immediately before and after denying the plaintiffs' request, projects which added significantly more traffic is inexplicable and, therefore, an abuse of discretion").
b. The Municipal Council's Finding that the Building on the Property Was Not Set Back Far Enough From the Road Was Not Supported by Credible Evidence and Was Arbitrary.
In its decision, the Municipal Council offered what can only be termed a throw-in conclusory finding that, "The Municipal Council also desired a site in which the proposed use was set back from the road." [Note 43] At trial, the Municipal Council offered no suggestion, let alone evidence, why the setback of the existing building on the Property of 25 to 26 feet presents any problem from a planning, safety or operational perspective. The building on the Property has been in use for many years, first as a used car dealership and then a convenience and package store, and is lawfully nonconforming with respect to front yard setback. [Note 44] Bask offered evidence, which I credit, that the front setback would be used in part for an 18-foot wide driveway between the east and the west parking lots on the Property, and that this driveway would adequately and safely service the Property. Bask further offered testimony, which I credit, that the remainder of the setback would be used for landscaping and a sidewalk, that the customer entrance to the building would be on the east side of the building, directly adjacent to the customer parking lot, and that the front entrance of the building would not be used as a customer entrance, thereby eliminating any possible pedestrian conflict with the driveway. [Note 45] The Municipal Council did not offer any evidence at trial as to why this arrangement was less than "desirable."
Where the Municipal Council has not offered any evidence at all to support its finding or to counter Basks evidence to the contrary, I find and rule that the Municipal Council's finding that the setback of the building is inadequate, or not "desirable," was unreasonable and arbitrary.
c. The Municipal Council's Finding that the Use as Proposed Was Not Adequate or Appropriate to Provide for Proper Operation of the Use Was Not Supported by Credible Evidence.
The Municipal Council's sole other finding that was not entirely conclusory and a mere repetition of the standards in the Ordinance, was its finding that "the project as proposed was not adequate or appropriate to provide for proper operation of the proposed use." As with traffic, Bask presented extensive evidence, which I credit, demonstrating that Bask, an experienced operator of marijuana dispensaries, with another Massachusetts dispensary in operation, and with a licensed and operating cultivation and processing facility also in Massachusetts, will operate the proposed facility in an appropriate and professional manner. This included testimony of Jeffrey Tallman, a registered professional engineer, concerning the site plan layout, including layout and sufficiency of parking areas, more than adequate number of parking spaces for customers and employees, improvements to vehicular entrances and exits, operation of parking areas and location of entrances, and provision of a secure loading area; [Note 46] and testimony of Timothy Keough, the president of Bask, as to Bask's experience at its currently licensed facilities, and as to proposed operational plans for the proposed facility, including the required scheduling of appointments for customers, and training of employees. [Note 47] The Municipal Council did not offer any evidence, credible or otherwise, to the contrary. Thus, based on the facts proved at trial, the Municipal Council's finding in this regard was unreasonable and arbitrary.
d. The Remaining Findings Were Merely Conclusory Repetitions of Special Permit Standards in the Ordinance.
The remaining findings by the Municipal Council were as follows:
The Council determined that the proposed use was not compatible with the characteristics of the surrounding area, including the residential areas on and adjacent to North Walker Street, South Walker Street and Cohannet Street. The Municipal Council determined that the proposed use was not in harmony with the general purpose and intent of the ordinance.
These findings are not so much findings, as they are conclusions, with no factual findings in the Municipal Council's decision that even arguably support them. Such conclusory statements, that are little or no more than repetitions of the standards set forth in the Ordinance, do not satisfy the requirement that a special permit granting authority must set forth detailed factual findings in support of its decision. Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 386.
To the extent that the Municipal Council based its decision on a finding that a marijuana dispensary is incompatible with nearby residential districts, such a decision is incompatible with the legislative decision to make retail marijuana dispensaries a permissible use in the Highway Business District, which is located on and along Winthrop Street, within a relatively short distance of residential neighborhoods located near Winthrop Street, on North Walker Street, South Walker Street, and Cohannet Street. Some houses on these side streets, if they are located within 500 feet of Winthrop Street, are themselves in the Highway Business District. It was a legislative determination to place some residential uses in a commercial district where highway business uses are allowed. For houses more than five hundred feed from Winthrop Street, these residential neighborhoods, separately zoned, are geographically and legally distinct from the busy commercial corridor on Winthrop Street, which is zoned for and replete with gas stations, convenience stores, liquor stores and automotive dealerships. It was a logical and rational decision for the city of Taunton to include retail marijuana dispensaries as uses permitted by special permit in such a business district. It cannot then determine on an ad hoc basis that such uses are incompatible with nearby residential districts, when the whole nature of the Highway Business District is that it is a narrow corridor of intense commercial uses, with residential districts nearby on both sides of Winthrop Street. [Note 48]
The decision is also arbitrary and unreasonable on the basis of incompatibility with residential areas on nearby cross streets for an additional reason, again related to the disparate treatment of the proposal for the Property and that for the property at 354 Winthrop Street. The residential areas on South Walker and North Walker Street are located considerably farther away from the Property at 400 Winthrop Street than is the residential area on Parker Street from the approved facility at 354 Winthrop Street. [Note 49] Again, the Municipal Council offered no explanation at trial for this apparently disparate treatment of the two proposals in this regard.
For the reasons stated, the findings that the proposed use is not compatible with the character of the surrounding areas, and the conclusion that the proposed use is not in harmony with the general purpose and intent of the Ordinance were unreasonable and arbitrary.
CONCLUSION
For the foregoing reasons, I find and rule that the Municipal Council's decision was legally untenable, arbitrary, capricious, unreasonable, and otherwise beyond the proper exercise of the Municipal Council's lawful authority. The decision of the Municipal Council is therefore ANNULLED.
Furthermore, because on the facts found in this matter, "no rational view of the facts the court has found supports the [special permit granting authority]'s conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law," Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 74-75, an order requiring the issuance of the requested special permit is appropriate. An order for the issuance of a special permit is "appropriate where remand is futile or would postpone an inevitable result." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, supra, 454 Mass. at 388. See also Shirley Wayside Limited Partnership v. Bd. of Appeals of Shirley, supra, 461 Mass. at 474, 485.
Judgment will enter annulling the decision of the Municipal Council and ordering the issuance of the requested special permit.
BASK, INC., Plaintiff, v. ERNEST C. BORGES, DEBORAH A. CARR, DONALD L. CLEARY, GERALD A. CROTEAU, JOHN M. McCAUL, . JEANNE M. QUINN, JEFFREY S. POSTELL, DAVID W. POTTIER and BARRY C. SANDERS, as they are members of the CITY OF TAUNTON MUNICIPAL COUNCIL, Defendants