Fountain & Sons Fuel Co., Inc. v. Town of Warren Planning Board

• Decision Date: 29 April 2010
• Docket Number: 082792
• Parties: Fountain & Sons Fuel Co., Inc. v. Town of Warren Planning Board et al. [1] No. 111673
• Court: Superior Court of Massachusetts

Fountain & Sons Fuel Co., Inc.
v.
Town of Warren Planning Board et al. ^[1]

No. 111673

No. 082792

Superior Court of Massachusetts, Worcester

April 29, 2010

Caption Date: April 29, 2010

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Kenton-Walker, Janet, J.

FINDINGS OF FACT AND RULINGS OF LAW

Janet Kenton-Walker, Associate Justice of the Superior Court

This is an appeal by the plaintiff, Fountain & Sons Fuel Co., Inc. ("Fountain"), pursuant to G.L.c. 40A, §17, from the denial of a special permit by the defendant Town of Warren Planning Board ("Board"). The Court met with the parties at the premises for a view. The Court conducted a hearing pursuant to G.L.c. 40A, §17. At this hearing, the Court found facts de novo and measured the sufficiency of the ZBA's decision against the Court's findings of fact. Green v. Board of Appeals of Provincetown, 26 Mass.App.Ct. 469 (1988), review granted, 403 Mass. 1105, reversed, 404 Mass. 571. See Davis v. Zoning Board of Chatham, 52 Mass.App.Ct. 349, 355 (2001). After trial, the parties submitted proposed findings of fact, which the court has considered. To the extent they are not found by the Court, they are deemed denied.

FINDINGS OF FACT

Based upon the view the Court took of the locus, the credible evidence introduced at trial and the reasonable inferences drawn therefrom, the Court makes the following findings of fact.

Fountain is the legal owner of 11 Quaboag Street, Warren, Massachusetts (the "Property"), having purchased the Property in April 2007. The Property is located in the Village District of the Town of Warren (the "Town"). Under Section 4.2 of the Town's Zoning By-laws, lots in the Village District are required to have a minimum lot size of 15, 000 square feet and minimum frontage of 100 feet. The Property is a non-conforming lot as it consists of 8, 158 square feet and has less than 100 feet of frontage. Deborah LaCasse ("LaCasse") is the owner of the property located at 1028 Main Street, Warren, Massachusetts, which is adjacent to the Property. LaCasse lives at 1028 Main Street with her husband. There is a driveway off of Main Street that leads to the back of the Property, which is part of a twelve-foot-wide right of way (easement) over LaCasse's property.^[2] There is also a short driveway in the front of the Property off of Quaboag Street.

After purchasing the Property, Fountain applied to the Board for a special permit pursuant to Section 1.5 of the Town's Zoning Bylaws ("Bylaws") to demolish the existing structure on the Property and build a two-family home for residential use.^[3] This was Special Permit Application Number 226 ("S.P. #226"), which was granted by the Board in July 2007.^[4] Fountain took down the old building and constructed the present two-family house.

The two-family house on the Property sits close to the corner of Quaboag Street and Main Street. The two units are set side-by-side to each other. Each unit is a two-story structure, with a basement level that has a utility room and a single-car garage. The first floor consists of a kitchen, living room and half-bath. The second floor has two bedrooms and a bath. The front of the units face Quaboag Street, as do the garages. The front entrances, which open onto the first floor, are one story above the ground, with stairs leading to them from the driveway. The entrance to the rear of the units is off the right of way and allows entrance onto the first floor level.

After the two-family house was nearly complete, James Fountain, the president of the plaintiff corporation, was approached by his attorney, Grant T. Schlosstein ("Schlosstein"), who expressed interest in purchasing one of the units for use as a law office for himself and the two attorneys he shared space with. In October 2007, Fountain applied for a special permit to change the use of the Property from residential to a mixed use of residential and commercial use. This was Special Permit Application Number 229 ("S.P. #229"). It was Fountain's intention to have one of the units (11B) remain strictly residential, while the other unit (11A) would be converted into a professional office for attorneys.^[5] In November 2007, Fountain created a condominium for the Property pursuant to G.L.c. 183A known as Eleven Quaboag Street Condominium. In December 2007, Fountain conveyed 11B, the residential unit.

The Board held two hearings on S.P. #229. LaCasse appeared at the hearings to voice her opposition to the application. On January 23, 2008, the Board granted Fountain S.P. #226, permitting the change of use of the Property from strictly residential to a mixed use of residential and commercial uses. The permit specifically stated: "The change of use applies only to 11A Quaboag Street and will be restricted to use by the law firm of Grant T. Schlosstein and Vincent J. McCaughey and is voided upon any additional change in use or ownership."

Because there was a third attorney who shared space with Schlosstein and McCaughey and was also going to move his practice to 11A Quaboag Street, the special permit's restriction to the two named attorneys would not permit the third attorney and was unworkable. Fountain sought an amendment to S.P. #229 to remove the specific restrictive language, however, the Board was unable to make amendments since final action had already been taken. Fountain did not appeal the Board's decision on S.P. #229 and did not record the special permit.

On February 29, 2008, Fountain submitted a Special Permit Application to the Board to change the use of the Property from residential to a mixed use of residential and commercial use, specifically seeking a permit to use one unit as a law office. This was Special Permit Application Number 233 ("S.P. #233"). In March, the Board requested additional information regarding S.P. #233, as it appeared to be a duplicate of S.P. #229. Specifically, the Board wanted a narrative of the proposed use and plans, including a parking plan.

In response to the Board's request, Schlosstein provided a letter at the public hearing in April in which he stated that the proposed use of 11A would be "a professional office with up to three lawyers and their staff." He further stated that the...