Opinion
11-P-874
03-28-2012
A.L. PRIME ENERGY CONSULTANT, INC. v. CITY COUNCIL OF WOBURN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Woburn city council (city council) appeals from a judgment of the Land Court ruling that the denial of special permits to A.L. Prime Energy Consultant, Inc. (A.L. Prime) was arbitrary and capricious. We affirm in part and reverse in part.
Background. A.L. Prime entered into a purchase and sale agreement for property located at 1 Hill Street in Woburn, off Montvale Avenue and adjacent to Interstate 93 (Property). Pursuant to the Woburn zoning ordinance (ordinance), the Property is located in the Interstate business (B-I) zoning district. On September 24, 2007, A.L. Prime filed a consolidated application seeking special permits to construct and operate a self-service gas station and to operate a convenience store with hours in excess of 7:00 A. M. to 10:00 P. M.
A special permit was required for operation of a gas station on the Property. The operation of a convenience store is an as-of-right use in a B-I zoning district under the ordinance, and a special permit for the store was needed only to secure the additional hours in excess of 7:00 A. M. and 10:00 P. M.
As part of its special permit application, A.L. Prime offered proposed traffic mitigation measures. A.L. Prime also hired an engineering expert, GPI, to conduct a traffic study of the area. GPI concluded that, even under worst case scenario projections, A.L. Prime's proposed use of the Property would cause no change in the level of traffic service at the Montvale Avenue/Hill Street intersection if A.L. Prime's proposed mitigation measures were implemented. GPI also concluded that the proposed mitigation would actually lower the rate of accidents at the intersection. The Woburn planning board hired its own expert, Vannasse Hangen Brustlin (VHB), to review these findings. VHB indicated its satisfaction with GPI's findings, and the planning board voted unanimously to favorably recommend A.L. Prime's application to the city council.
On January 28, 2008, the city council denied the special permit application, and A.L. Prime filed an appeal pursuant to G. L. c. 40A, 17, with the Land Court. After a view of the Property and a trial, the Land Court judge issued her decision on March 14, 2011, ordering the city council to issue the special permit with conditions determined by the court.
Discussion. 'After determining the facts and clarifying the appropriate legal standards, the [Land Court] judge determines whether the [city council] has applied those standards in an unreasonable, whimsical, capricious or arbitrary manner. . . . The [city council] is entitled to deny a permit even if the facts found by the [Land C]ourt would support its issuance. The judge nonetheless should overturn a [city council]'s decision when no rational view of the facts the court has found supports the [city council]'s conclusion.' Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012) (Shirley) (internal quotation marks and citations omitted).
On appellate review, 'the judge's findings of fact will not be set aside unless they are 'clearly erroneous' or there is 'no evidence to support them." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (Wendy's), quoting from DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985). 'We review the judge's determinations of law, including interpretations of zoning bylaws, de novo.' Shirley, 461 Mass. at 475.
Here, the city council denied A.L. Prime's application, citing potential 'backups,' the 'worsen[ing] of an already bad [traffic] situation,' 'increased back-ups on Hill Street and Montvale Avenue,' and 'unsafe' traffic conditions. In her careful and detailed decision, the Land Court judge found that the reasons cited by the city council were not supported by a rational view of the facts where they were directly at odds with GPI's expert report, which was confirmed by VHB. See Background section, supra. The city council, quoting from Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821, 821 (1973), argues that because there will be an increase in the number of trips in the intersection, '[i]t is the [city council]'s evaluation of the seriousness of the problem, not the judge's, which is controlling.' We disagree. 'We defer to the [city council]'s judgment only when reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit.' Shirley, 461 Mass. at 484 (internal quotation marks and citation omitted). The city council presented no evidence that contradicted the judge's finding that, with mitigation, there would be no change in the level of traffic service at the intersection and there would actually be improvement in the accident rate. Thus, the judge appropriately found that the city council denied the special permits 'in an 'unreasonable, whimsical, capricious or arbitrary' manner.' Shirley, 461 Mass. at 475, quoting from Wendy's, 454 Mass. at 382. The judge also appropriately ordered the city council to issue the special permits.
Citing V.S.H. Realty, Inc. v. Zoning Bd. of Appeals of Plymouth, 30 Mass. App. Ct. 530, 535 (1991), the city council also argues that because some of the proposed mitigation would require State approval, the city council may not impose such conditions. We disagree. Unlike V.S.H. Realty, Inc., where the conditions that required State approval were involuntarily imposed on an applicant, A.L. Prime proposed these conditions and voluntarily agreed to them knowing that they would require State approval.
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While the court correctly remanded this case to have the city council issue the special permits, it was error for the court to impose its own conditions rather than remanding to allow the city council to impose reasonable conditions. See, e.g., MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 520 (1976) (directing board to issue permit subject to appropriate conditions determined by board). See also V.S.H. Realty, Inc. v. Zoning Bd. of Appeals of Plymouth, 30 Mass. App. Ct. 530, 535 (1991) (court was 'constrained, under authority of MacGibbon v. Board of Appeals of Duxbury, [supra], to return this matter to the board'). '[A]n order of particular relief may be appropriate where remand is futile or would postpone an inevitable result.' Wendy's, 454 Mass. at 388. See, e.g., Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 22-23 (1995) (where 'there is a record of consistent obstruction of lawful use . . . justice and equity would not be served by [another] remand ') (internal quotation marks and citations omitted). Here, no special circumstances existed to justify particular relief in lieu of a remand to allow the city council to determine and impose appropriate conditions.
Conclusion. So much of the judgment as annulled the decision of the city council and ordered the issuance of a special permit is affirmed. The remainder of the judgment is vacated, and the matter is remanded to the Land Court where a revised judgment shall issue remanding the matter to the city council for its determination of appropriate permit conditions.
So ordered.
By the Court (Rapoza, C.J., Katzmann & Wolohojian, JJ.),