Titcomb v. Board of Appeals

835 N.E.2d 295, 64 Mass. App. Ct. 725
CourtMassachusetts Appeals Court
DecidedOctober 7, 2005
DocketNo. 04-P-1352
StatusPublished
Cited by7 cases

This text of 835 N.E.2d 295 (Titcomb v. Board of Appeals) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Titcomb v. Board of Appeals, 835 N.E.2d 295, 64 Mass. App. Ct. 725 (Mass. Ct. App. 2005).

Opinion

Greenberg, J.

Upon review, under G. L. c. 40A, § 17, of a grant by the board of appeals of Sandwich of a special permit for change or alteration of an existing nonconforming use under the Sandwich zoning by-law, a judge of the Superior Court concluded that the board’s decision disclosed an error of law. In addition, the judge concluded that the proposed use would be substantially more detrimental than the existing nonconforming use to the neighborhood. He reversed the board’s grant of the special permit to the defendants, and the defendants appeal.

1. Background. We set the scene, based on stipulations of the parties and findings by the Superior Court judge. Defendant [726]*726Christy’s Realty, LLP (Christy’s), is a limited partnership controlled by Christopher Mihos and is the entity that owns the locus, a 123,544 square foot parcel of land and a commercial building abutting Cape Cod’s historic “Cranberry Highway” (Route 6A). The building itself is an improved clapboard structure containing 2,890 square feet of retail space on the first floor and two residential apartments on the second floor. Before the establishment of the R-2 residential zoning district by virtue of a zoning by-law adopted by Sandwich in 1973, the prior owner operated a “proverbial country-style general store” on the first floor of the premises. In the late 1970’s, the store was described as a combination butcher shop and grocery store, offering various foodstuffs, fresh produce, and baked goods, some of which were prepared on the premises. At some point, barbequed chickens were also prepared on the premises.

Surrounding the locus in the area of Route 6A are several residences which, as permitted by the Sandwich zoning by-law, contained pre-existing nonconforming uses, including a dentist’s office and a woodworking business. Nearby is a small hotel, a gas station, several restaurants, an animal hospital, and a few other commercial establishments. In essence, although the area was zoned residential in 1973, there remain a significant number of commercially utilized properties.

The locus is situated across from Ploughneck Road, which ends in a T intersection on the north side of Route 6A. The owner currently maintains two access driveways, one directly across from Ploughneck Road and one further west on Route 6A. Traffic on Route 6A at or near the locus is relatively heavy. In the early morning, school buses pick up children from the neighborhood at and opposite the intersection of Ploughneck Road and Route 6A and transport them to various schools. In the afternoon, the children are dropped off in the same area, where they are picked up by their parents.

Christy’s, in its application for a special permit, sought permission to alter a pre-existing nonconforming use of the premises as a retail convenience store and food market, and to add, as an additional use, a “Dunkin’ Donuts” take-out operation. The basic plan submitted to the board proposed an extension of use from self-service to counter service for bakery and coffee products. [727]*727The parties agree that the take-out operation constitutes a restaurant under the town by-law. Christy’s also sought to improve safety conditions by modifying vehicular access to and from the existing parking lot by eliminating the easterly driveway, the driveway directly opposite the intersection of Ploughneck Road and Route 6A. Nothing was proposed that would change the footprint of the store, and in most material respects, the plan complied with setback and sideline dimensional requirements of the by-law. Nor was there any request to establish a drive-through window, which would have complicated the traffic pattern to and from the building.

At an initial public hearing on the defendant’s application in June of 2002, a growing cadre of abutters and neighborhood residents registered objections, arguing that the potential increase in traffic, combined with the number of turns into and out of the locus, would not be ameliorated by the defendants’ proposed improvements. There were dueling traffic studies, one by Jennifer Conley of Conley Associates, who had conducted many traffic studies at other Dunkin’ Donut locations. She opined that the addition of the Dunkin’ Donuts operation within the store would have minimal impact upon the existing volume of traffic to the locus. As might be expected, individual opponents of the defendants, based on a traffic study done at their behest by Carlson Consulting Associates, disagreed with Conley’s analysis.

Public hearings were held on the revised application on July 9 and August 13, 2002.3 The board allowed the application for a special permit to alter the prior nonconforming use, imposing significant conditions regarding, among other things, hours of operation and change in site access and additional parking. Critically, the board found that the proposed extension, as conditioned, would not be “substantially more detrimental than the existing nonconforming use.” Subsequently, the plaintiffs [728]*728brought this action seeking to annul the grant of the special permit.

Boiled down to its essence, the complaint alleges that the board exceeded its authority and acted in an arbitrary and capriclous manner by allowing a substantial change in the existing nonconfoiming use in violation of G. L. c. 40A, § 6, and the Sandwich zoning by-law. in particular, the plaintiffs took issue with the board’s reliance on traffic data that failed to take into account the close proximity of the intersection of Ploughneck Road and Route 6A to the site. They claimed that the situation posed a safety hazard because of the increased vehicular traffic that would result from an increase in customers generated by the Dunkin’ Donuts portion of the store. They also claimed that the defendants’ revised plans did not contain adequate parking spaces and that members of the public did not have an opportunity to review those plans.

A Superior Court judge, hearing the matter de nova, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954), held hearings over a two-day period and annulled the board’s decision. Under the standard test, see Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973),4 the judge determined, and the parties agree, that the change in use that the defendants sought was not covered by the exemption granted to pre-existing nonconforming uses under G. L. c. 40A, § 6. He then determined that a variance, not a special permit, was required. Finally, “[f]or purposes of providing a complete record,” the judge determined that the record before the board was incomplete and, therefore, the board’s analysis of traffic impacts was arbitrary. Accordingly, he found that the board was unable to assess whether the change in use would not be “substantially more detrimental than an existing nonconforming use to the neighborhood.” G. L. c. 40A, § 6. The judge, however, failed to [729]*729address adequately the town’s zoning by-law in his decision. See Bobrowski, Handbook of Massachusetts Planning Law § 6.03 (2d ed. 2002).

2. Analysis. Aside from commenting on the safety issues, the judge, in his memorandum of decision, suggested without elaboration that the board’s decision was “based on a legally untenable ground” because, as noted above, a variance was required.

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Bluebook (online)
835 N.E.2d 295, 64 Mass. App. Ct. 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/titcomb-v-board-of-appeals-massappct-2005.