Opinion
No. 16–P–14.
12-02-2016
CUMBERLAND FARMS, INC. v. BOARD OF APPEALS OF WELLFLEET & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Cumberland Farms, Inc., owns property in Wellfleet fronting on Route 6. Currently on the parcel are a convenience store located in one building and a liquor store in another. Cumberland Farms plans to raze both buildings and replace them with a single building that will house the existing businesses. It also seeks to add a new use to the site, a fuel dispensing business that will include three two-sided gasoline pumps located in a canopied structure that will be situated between the new retail building and Route 6. In order to add the new use, Cumberland Farms sought two special permits from the town's board of appeals (board). The board denied the special permits, primarily based on a ground that it has since abandoned. As an alternative ground for denying the permit, the board concluded that the available parking fell below the minimum parking threshold generated by the formula set forth in the by-laws. Cumberland Farms appealed the board's decision pursuant to G.L. c. 40A, § 17, and additionally sought certain declaratory relief, discussed infra. During the course of the trial, the judge allowed the board to raise additional potential grounds for denying the special permits. Following trial, a Land Court judge ruled in Cumberland Farms's favor in an exceptionally thoughtful and detailed fifty-eight page decision and issued a judgment that, inter alia, ordered the board to grant the requested special permits. We affirm.
Specifically, the board initially claimed it lacked authority to entertain the special permit applications because Cumberland Farms had not yet obtained separate approval under the town's "formula business" by-law (which had sought to limit the development of what are commonly referred to as "chain stores"). Not only has the board abandoned that jurisdictional argument, but it has not sought review of the judge's declaration that the formula business by-law was invalid (both on its face and as applied). In addition, the board has not sought review of the judge's ruling that Cumberland Farms does not need to obtain additional special permits for the existing uses or for the new building that will house them.
Standard of review. "Review of a board's decision in Superior Court pursuant to G.L. c. 40A, § 17, involves a ‘peculiar’ combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009), quoting from Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558 (1954). The judge finds the facts de novo based on the evidence presented at trial, and determines the applicable legal principles, while giving " ‘substantial deference’ to a board's interpretation of its zoning bylaws and ordinances." Ibid., quoting from Manning v. Boston Redevelopment Auth., 400 Mass. 444, 453 (1987). The judge is then called upon to evaluate whether the board's decision " ‘is based on a legally untenable ground’ or is based on an ‘unreasonable, whimsical, capricious or arbitrary’ exercise of its judgment in applying land use regulation to the facts as found by the judge." Id. at 382, quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 487 (1999). If not, the board's decision "cannot be disturbed." Id. at 381–382, quoting from Roberts, supra.
With these principles in mind, one might well question the propriety of the judge's decision to allow the board to defend its denial of the special permits at trial based on grounds it had never articulated before. However, neither at trial nor on appeal did Cumberland Farms raise this issue. Rather, Cumberland Farms has been content to oppose the new grounds raised by the board on the merits. Without resolving whether this potential infirmity in the board's argument has been waived, we proceed to the merits.
Discussion. 1. Front setback. The board's lead argument on appeal is that the canopied pump structure is set too close to Route 6 (one of the issues that the board raised for the first time at trial). The zoning by-law generally requires a 100–foot setback in a commercial zone. However, the by-law goes on to state that "[f]ront setbacks may be decreased to [fifty] feet for nonresidential uses, provided building is wood-sided." The proposed gas station island is situated fifty feet from Route 6. Cumberland Farms intends to cover the canopied structure with fire-resistant wood, and the judge ruled that, so long as the company did this, it could take advantage of the reduced setback. As the board acknowledged at oral argument, the gas station canopy meets the by-law's definition of a "building" since it is a "structure" that provides "shelter." Nonetheless, it argues that the by-law does not allow an automatic setback reduction for wood-sided buildings; instead, according to the board, such a reduction requires separate discretionary approval from the board. The board maintains that it would not have given such approval here because of the open air nature of the "building" at issue.
The board appears to be arguing that the aesthetic value provided by wood siding is reduced when the building at issue is not a traditional enclosed structure.
In making this argument, the board principally relies on the use of the word "may" in the language quoted above. As the board observes, may is typically viewed as a "word[ ] of permission or discretion," not as a "word[ ] of command." See Brennan v. Election Commrs. of Boston, 310 Mass. 784, 786 (1942). The shortcoming in this argument is that the by-law is not phrased, as the board would have it, as "the board may reduce the setback...." Instead, the by-law states that "[f]ront setbacks may be decreased ..., provided building is wood-sided." Thus, the plain language of the by-law supports Cumberland Farms's interpretation: wood-sided buildings in commercial areas may take advantage of the fifty-foot setback.
This interpretation is reinforced by the fact that in other instances where the town indicated that separate approval is required to deviate from a minimum zoning standard, it did so explicitly. Indeed, the very next sentence that follows the one quoted above allows residential uses in commercial zones to be subject to only a thirty-foot setback "with a[s]pecial [p]ermit from the [board]." See O'Brien v. Massachusetts Bay Transp. Authy., 405 Mass. 439, 441–442 (1989) (if the Legislature had intended a provision of a statute to operate differently "it would have said so expressly").
2. Adequate parking. a. The spaces next to the gas pumps. As noted, when it denied the special permits, the board did cite the inadequacy of Cumberland Farms's proposed parking as an alternative ground. In its application, Cumberland Farms took the position that it needed to provide forty-two parking spaces for the project in order to satisfy the applicable parking by-law. It reached this number through a two-step process. First, Cumberland Farms calculated a base minimum parking of forty-five spaces by applying the formula set forth in the by-law for commercial uses. Second, Cumberland Farms reduced that number by three spaces by claiming credit under a special feature of the by-law, discussed infra.
Notably, the board denied the special permits not because it considered forty-two spaces insufficient, but because it viewed Cumberland Farm's plan as not actually providing that number. It came to that conclusion by refusing to accept Cumberland Farms's position that the six spaces alongside the fuel pumps could be counted as parking spaces toward the required forty-two space total. The board argues that the judge erred by not deferring to it on this issue.
The zoning by-law defines a parking space as "[t]hat area required for parking one automobile, which in this by-law is held to be an area [nine] feet wide and [twenty] feet long, not including passageways." According to the board, the areas next to the gas pumps amount to passageways and therefore do not constitute parking spaces. Even granting the board the deference that is due to a town agency interpreting a local by-law, see O'Connell v. Vainisi, 82 Mass.App.Ct. 688, 693 (2012), the board's proffered interpretation is unreasonable. The spaces next to the gas pumps are used by customers who are refueling their cars. To do so, the customers pull their cars into the spaces, turn them off, and leave their cars to pump the fuel. These spaces, therefore, plainly function as parking spaces for use of the gas station, and the board's position that they are mere passageways is untenable.
The board is on slightly stronger footing in arguing that even if the six spaces can be counted as parking spaces for the gas station use, they cannot be counted as parking spaces for use of the convenience store and liquor store. The problem with this argument is that the board never took the position that more than forty-two spaces were required for the combined uses at the site (apart from its argument first raised at trial that Cumberland Farms was not entitled to the three-space discount, discussed infra). The board could have taken the position that Cumberland Farms misapplied the minimum parking space formula in the by-law by not assigning a floor area to account for the gas station use, and that therefore more than forty-two spaces were required for the project as a whole. The board did not do so, and any such argument has been waived. See Chiaraluce v. Zoning Bd. of Appeals of Wareham, 89 Mass.App.Ct. 290, 295 n. 6 (2016), quoting from Palmer v. Murphy, 42 Mass.App.Ct. 334, 338 (1997) ("Objections, issues, or claims—however meritorious—that have not been raised at the trial level are deemed generally to have been waived on appeal").
As the board concedes, there was trial testimony that customers "often" will keep their cars parked at the gas station pump after refueling in order to buy something at the convenience store. To that extent, the parking spaces at the gas pumps in fact do serve as parking spaces for the convenience store. The board nevertheless complains that the judge found that "[c]ustomers do not fuel and then park elsewhere to go into the convenience store." According to the board, the judge effectively found that no one patronizing the gas pumps would ever then repark his or her car elsewhere at the site, a finding that the board contends goes beyond the trial testimony and relies instead on the judge's personal supposition. We need not address this contention further, because Cumberland Farms prevails even to the extent that this one finding was unsupported.
b. The three-space credit. In an additional argument raised for the first time at trial, the board contends that the judge erred by allowing Cumberland Farms to claim a three-space credit (which reduces the minimum number of parking spaces required from forty-five to forty-two). This credit relates to landscaping features that the company agreed to provide. The applicable provision in the by-law states as follows:
"One required parking space may be omitted for each 300 square feet of planting area within the parking lot, on approval of the [board] as a condition of the [s]pecial [p]ermit, upon the [b]oard's determination that parking demand will still be adequately served."
It is uncontested that Cumberland Farms is providing over 900 square feet of planting areas within the parking lot. Therefore, Cumberland Farms can take advantage of the three-space credit so long as "parking demand will still be adequately served." After carefully reviewing the evidence and arguments put forward by each side, the judge found that Cumberland Farms's plan will in fact adequately serve parking demand at the site. The board has not demonstrated that this factual finding is clearly erroneous.
In contesting the judge's finding as to the adequacy of the parking, the board chiefly relies on the judge's apparent misstatement of the "worst case" vehicle visit numbers (as compared to the trial testimony). However, the judge expressly stated that he did not rely on the worst case numbers in determining whether forty-two parking spaces were adequate. In any event, he referenced several other factors that provide sufficient support for his finding. See White v. Hartigan, 464 Mass. 400, 414 (2013) ("[W]e are bound by a judge's findings of fact that are supported by the evidence").
To be sure, as the judge recognized, a determination whether an applicant is entitled to a three parking space credit should be made in the first instance by the board. However, the board itself passed over that issue, and expressed no concern over the three-space credit in stating its reasons for denying the special permits. As we observed at the outset, there is some question whether the board was entitled to raise the concern for the first time at trial, or whether the judge was obliged to consider the issue at all. In lieu of deeming the issue waived, the judge allowed the parties to litigate it at trial. Especially in these circumstances, we discern no error of fact or law in the judge's conclusion that the parking proposed by Cumberland Farms was adequate, instead of remanding the issue for consideration by the board. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 485 (2012) (where trial record established no basis to deny a special permit, court may order permit granted).
Cumberland Farms's application made clear that it was relying on such a credit and, during the administrative proceedings, the board did not question its entitlement to that credit.
Judgment affirmed.