Wendy's v. Board of Appeal of Billerica

• Decision Date: 24 July 2009
• Docket Number: SJC-10354.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC. v. BOARD OF APPEAL OF BILLERICA & another<SMALL><SUP>1</SUP></SMALL> (and a companion case).

909 N.E.2d 1161

74 Mass. App. Ct. 1125-1127

WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC. v. BOARD OF APPEAL OF BILLERICA & another¹ (and a companion case).

SJC-10354.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 9, 2009.

Decided July 24, 2009.

Patrick J. Costello, Boston, for the defendants.

James T. Dangora, Jr., Billerica, for the plaintiff.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

[454 Mass. 374]

The board of appeal of Billerica (board) appeals from a judgment of the Superior Court ordering the

[454 Mass. 375]

board to modify a special permit and variance it previously had granted to Wendy's Old Fashioned Hamburgers of New York, Inc. (Wendy's). The original special permit and variance provided that there be only one entrance-exit (hereinafter entrance) to the Wendy's site, and that a green strip be built along another boundary where Wendy's had proposed a second entrance.² After a jury-waived trial, the trial judge ordered the board to permit Wendy's to build a second entrance. The board appealed, claiming that the Superior Court lacked jurisdiction to review its decision because Wendy's did not appeal from the single entrance limitation when initially imposed, that its denial of Wendy's request to modify the condition was in any event a proper exercise of its authority, and that the judge should not have ordered the board to issue a modified special permit and variance permitting a second entrance and removing the green strip. We transferred the case here on our own motion.

For the reasons described below, we conclude that the Superior Court had jurisdiction to review the board's actions. We also agree with the judge that the board did not provide adequate reasons or factual support for its decisions denying relief to Wendy's and that a remand to the board would only delay an inevitable result. We affirm the judgment of the Superior Court in all respects.

1. Background. We summarize the facts found by the judge, supplemented by undisputed facts of record.³ In 1992, in anticipation of constructing a restaurant on property at the intersection of Boston Road and Pollard Street in the town of Billerica (town), Wendy's petitioned the board for a special permit⁴ and a

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variance⁵ to allow the construction of a restaurant with a "drive-through window."⁶ On March 4, 1992, the board granted both, provided that there be only one entrance to the Wendy's site from Boston Road, and that there be no access from Pollard Street and the proposed second access converted to a green strip.⁷ In 1993, Wendy's purchased the site, on which it built its restaurant in conformity with the special permit and variance. Meanwhile, the Massachusetts Highway Department, in conjunction with the town department of public works, began planning a roadway improvement project with the goal of widening Boston Road from two to four lanes, including the portion in front of Wendy's, and in 1993 the Commonwealth and the town began conducting informational meetings regarding the redesign and reconstruction of the road. To accommodate the expansion project, the town

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board of selectmen (selectmen) voted to acquire certain land from Wendy's and the abutting property on which a Christy's Market was located,⁸,⁹ and in September, 1995, an order of taking was executed by the selectmen, see G.L. c. 79, § 1.¹⁰

At trial the judge found that the roadway expansion had "significantly" changed the traffic patterns in and around Wendy's. Before the expansion, vehicles entered the Wendy's site from the southbound, far side of Boston Road, crossing one lane of oncoming traffic. Vehicles leaving Wendy's could turn left (into the far lane) or right (into the near lane) onto Boston Road. After the road expansion, vehicles entering Wendy's from the southbound side of the road were required to cross two lanes of oncoming traffic. New signs prohibited vehicles leaving Wendy's from turning left onto Boston Road, requiring southbound vehicles leaving Wendy's to drive in the opposite direction on Boston Road until they are able to make a "U turn" at a cross street or other appropriate location.

As a result of the new traffic configuration,¹¹ in October, 1997, five years after Wendy's had obtained its special permit and variance, Wendy's petitioned the board to "modify" the 1992 special permit and variance to permit it to create curb cuts in the green strip and to construct a second entrance onto Pollard Street.¹² Wendy's requests for modification were considered

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by the board in December, 1997. At the time the dispute between the town and Wendy's concerning the value of Wendy's land taken by eminent domain was ongoing. See note 10, supra. Wendy's submitted letters from the town director and town counsel, and from the Massachusetts Highway Department director approving a Pollard Street entrance, and Wendy's attorney brought to the board's attention a traffic survey evidencing that there would be no adverse traffic impact on Pollard Street. Wendy's submitted a revised plan showing the proposed entrance onto Pollard Street, and informed the board that the plan had been approved by "the town and the state." The minutes of the board meeting reflect that two residents of Pollard Street addressed the board, voicing concerns that the traffic flow would be adversely affected by an entrance on to Pollard Street. The board summarily denied Wendy's request.¹³

Wendy's sought judicial review of the board's denial. In December, 1997, it filed a complaint in the Superior Court alleging that the board's refusal to modify its 1992 decisions was, among other things, "arbitrary" and "legally untenable." See G.L. c. 40A, § 17.¹⁴ Wendy's also sought declaratory relief pursuant to G.L. c. 231A that the board be ordered to grant Wendy's requests. Some fifteen months later, the parties sought

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to resolve both the eminent domain land value dispute, see note 10, supra, and Wendy's judicial review of the board's zoning decision, and jointly requested that the Superior Court remand the case to the board for further consideration, which it did. By this time, the expansion of Boston Road had been completed.

In May, 1999, after reconsideration of the matter, the board again denied Wendy's request for modification on substantially the same grounds as its 1997 decision. See note 13, supra.¹⁵

Wendy's again sought judicial review of the board's decision. It commenced a second action in the Superior Court alleging, inter alia, that the board's 1999 decision was "arbitrary, [was] based on legally untenable grounds, [was] insufficient in law," and was "in contravention of the evidence presented and accepted by the Board." Wendy's again sought declaratory relief pursuant to G.L. c. 231A, and requested that the 1997 and 1999 decisions of the board be annulled and the board ordered to modify the special permit and variance to allow an entrance onto Pollard Street. The two cases were consolidated by a Superior Court judge.

After a jury-waived trial during which one witness testified for Wendy's,¹⁶ the minutes of the December 3, 1997, board meeting were admitted in evidence, and the judge took a view of the site, the judge concluded that the 1997 and 1999 decisions of the board denying Wendy's requests were "based on general conclusions without reliance on any facts in the record" and therefore invalid.¹⁷ Citing Davis v Zoning Bd. of Chatham,

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52 Mass.App. Ct. 349, 356, 754 N.E.2d 101 (2001), she correctly acknowledged that "even when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld ... if a rational basis for the denial exists which is supported in the record." She concluded, however, that "[e]ven in applying that deferential standard, this Court can find nothing in the record to support the Board's reasoning for its decision to deny Wendy's special permit and variance request." She ordered the board's 1997 and 1999 decisions annulled insofar as they denied Wendy's a second entrance onto Pollard Street. She also ordered the board "to issue the special permit for construction of the access and egress driveway onto Pollard Street and a variance for green strip and green space requirements at the site."

2. Regulatory framework. Before turning to the merits, we briefly describe the regulatory framework governing this appeal. The Zoning Act, G.L. c. 40A (act), sets out, in relevant part, procedures by which a special permit or variance may be obtained, and by which an "aggrieved" party may take an appeal from a zoning decision to the applicable permit granting authority. G.L. c. 40A, § 8. The act requires that a board create "a detailed record of its proceedings" and set forth "clearly" the "reason for its decision and of its official actions." G.L. c. 40A, § 15. The act permits modification, G.L. c. 40A, § 14,¹⁸ and reconsideration, G.L. c. 40A, § 16,¹⁹ of prior decisions. General Laws c. 40A, § 17, in turn, provides that "[a]ny person aggrieved" by a decision of a board of appeals may seek judicial review in the Superior Court.

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Review of a board's decision in the Superior Court pursuant to G.L. c. 40A, § 17, involves a "peculiar" combination of de novo and deferential analyses. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558, 120 N.E.2d 916 (1954).²⁰ Although fact finding in the Superior Court is de novo, a judge must review with deference legal conclusions within the authority of the board.²¹ Mellendick v. Zoning Bd. of Appeals of Edgartown, 69 Mass.App.Ct. 852, 857, 872 N.E.2d 1125 (2007), quoting Cameron v. DiVirgilio, 55 Mass.App.Ct. 24, 29, 768 N.E.2d 1094 (2002) ("reasonable construction that a zoning board of appeals gives to the by-laws it is charged with implementing is entitled to deference"). Among the purposes of the act is to...