Posted by: Patricia Salkin | January 30, 2016

MA Land Court Holds Zoning Bylaw Requiring Formula Businesses to Obtain a Special Permit as a Condition of Operation was Invalid Both Facially and As-Applied

Plaintiff Cumberland Farms, Inc. owned a commercially-zoned property on Route 6 in Wellfleet, currently occupied by a Cumberland Farms convenience store, a liquor store that leases its retail space from Cumberland, an abandoned single-family residence, and a garage that had been leased for vacant storage space. Cumberland proposed to redevelop the property by demolishing the existing retail structures and the abandoned residence, constructing a new building to house both the Cumberland convenience store and the liquor store tenant, adding a canopied fuel pump island in front of the new building with two gasoline pumps and one diesel pump, re-configuring the entrance and exit drives to make them easier and safer to use, and re-landscaping the site to improve its appearance and install additional tree and shrub buffering from its neighbors. The Zoning Board denied the two related special permit requests: to authorize the filling station use, and to add another principal use (the filling station) on the property. The ZBA based on its ruling that it lacked jurisdiction over those applications because Cumberland had not first obtained a Formula Business Special Permit from the Wellfleet Planning Board pursuant to Bylaw, § 6.30. Additionally the ZBA found that the redevelopment did not provide adequate parking, would increase traffic congestion along Route 6, and would negatively affect property values.

The court first discussed that Cumberland’s Wellfleet store was a Formula Business within the bylaw definition because its exterior signage identified it as “one of twenty five or more other businesses worldwide.” However, because both its merchandise and the way that merchandise was “arrayed” are similar to convenience stores generally, and not unique to Cumberland, it would not otherwise fall within the definition. The Town contended that its Formula Business bylaw was consistent with its authority under the Zoning Act because the bylaw regulated “aesthetics which are a public interest that justifies the exercise of municipal zoning power.” However, the Formula Business bylaw was invalid because its requirements did not apply to a non-Formula Business doing the same things, in the same location, in the same way. Since there was no evidence that Formula Businesses generated greater or different adverse impacts than those businesses that did not come within that definition, it was invalid: both on its face and as applied.

At trial Cumberland retained McMahon Associates, a traffic engineering firm, to submit a traffic impact study “to determine the development’s effect on road traffic-carrying capacity, road physical environment, and traffic and pedestrian safety.” Gary McNaughton, vice president of McMahon Associates, who oversaw Cumberland’s traffic impact studies and testified about them. In its decision, the Zoning Board rejected McMahon’s traffic study in large part because it was not conducted during the summer and relied on seasonally-adjusted October data. However, Mr. Michaud testified on cross examination that relying on seasonally-adjusted data is an accepted industry practice and should not be the sole basis for rejecting a traffic study. Moreover, when McMahon conducted a summertime manual traffic count in July 2012 after the Zoning Board issued its decision, it showed there was no material disparity between the results obtained from the seasonally adjusted October data and the July data. Accordingly, the Zoning Board’s traffic-related reasons for denying Cumberland’s special permits were unsupported by the evidence or any rational view of the evidence, and therefore arbitrary and capricious.

The Zoning Board also found that the six proposed parking spaces shown alongside the fueling pumps could not be considered valid parking spaces because they were “passageways”. However, the court found while the areas between each fuel pump resembled passageways, they functioned much differently because they were not intended or used to provide unimpeded or continuous passage. These areas could therefore be properly designated as parking spaces on Cumberland’s proposed plan. Finally, no evidence was found to support any contentions that the filling station would lower property values or increase negative light or noise effects. Consequently, the court vacated and remanded the Zoning Board’s denial of Cumberland’s application for two special permits.

Cumberland Farms, Inc. v. Jacob, 2015 WL 5824402 (MA Land Ct 10/6/2015)


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