In 1992, Wendy’s Old Fashioned Hamburgers of New York, Inc. (Wendy’s) petitioned the Board of Appeal of Billerica (Board) for a special permit and a variance to allow construction of a restaurant with a “drive-through window.” The proposed restaurant would to be located at the intersection of Boston and Pollard Roads in the town of Billerica. The board granted both the permit and variance on March 4, 1992 under the condition that there only be one entrance to Wendy’s from Boston Road and that there be no access to Wendy’s from Pollard Road. Wendy’s proceeded to purchase the site and build the restaurant. During this time, the Massachusetts Highway Department and the Billerica department of public works began planning the expansion of Boston Road from two to four lanes. To facilitate its plan, the Billerica Board of Selectmen (Selectmen) executed an order of taking to acquire land from Wendy’s. As the roadway expansion “significantly” changed the traffic pattern around the restaurant, Wendy’s petitioned the Board in 1997 to “modify” the 1992 special permit and variance to create curb cuts and to construct a second entrance onto Pollard Street. Along with its petition, Wendy’s submitted letters from the director of the Massachusetts Highway Department approving a Pollard Street entrance and a revised plan which had been approved by “the town and the state.” The Board denied Wendy’s request. Wendy’s then sought review of the Board’s decision and filed a complaint in the Superior Court in 1997 seeking declaratory relief and alleging that the Board’s decision was “arbitrary.” Both parties agreed to request that the Superior Court remand the case to the board to determine the zoning decision but after reconsideration in May of 1999, the board again denied Wendy’s request for modification. Wendy’s again sought judicial review alleging the board’s decision was “arbitrary” and was “in contravention of the evidence presented and accepted by the Board.” The Superior court concluded that the board’s 1997 and 1999 decisions denying Wendy’s requests were invalid as they were “based on general conclusions without reliance on any facts in the record.” The judge ordered that both of the Board’s decisions be annulled and ordered the Board “to issue the special permit for construction of the access and egress driveway onto Pollard Street . . . .” The Board appealed.
The first issue raised by the Board is whether Wendy’s is estopped from appealing based on a lack of standing. The Board argued that when it imposed the single entrance condition in 1992, the expansion project was “in progress” and Wendy’s was “aggrieved” by the imposition in light of the plans for road expansion. Wendy’s therefore should be estopped from appealing the condition five years after it was imposed. The Supreme Judicial Court of Massachusetts disagreed stating that the expansion project “significantly” changed traffic patterns around Wendy’s and the roadway project was not finalized in 1992. Wendy’s therefore has standing to appeal the Board’s decisions.
The Court then addressed whether the Superior Court properly annulled the Board’s decision denying the requested modification. General Laws c. 40A, § 15 requires a Board to provide “clearly the reasons for its decision and of its official actions.” Agreeing with the court below, the Court said that the Board’s conclusions with no supporting facts are insufficient. According to G.L. c. 40A, § 15, the Board must set forth “reasons” as to why a second access from Wendy’s on Pollard Street would not be in the best interest of the neighborhood or what the detriment to the public might be. The Court held that the “reasons” provided by the board were inadequate, and affirmed the judgment below.
Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeals of Billerica, 2009 WL 2184580 (Mass. 7/24/2009).
The Opinion can be accessed here.
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