Agenda - Planning Commission - 12/03/2009

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,C) , I , " '\ i / .'-""" Zoning Bulletin September 1 0, 20091 Volume 3 I No. 17 OJ Permit Modification-Landowner requests special permit and variance modification based on changed circumstances Board denies request but provides no factual reasons for denial Citation: Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Bille rica, 454 Mass. 374,909 N.E.2d 1161 (2009) MASSACHUSETTS (07/24/09)---,.Wendy's Old Fashioned Hamburg- ers of New York, Inc. ("Wendy's") planned to construct a restaurant on property in the town. The restaurant was to be located at the intersec- tion of two roads: Boston Road and Pollard Street. In furtherance of its planned construction, Wendy's sought a special permit and a variance from the town's board of appeals (the "Board"). The Board granted both. However, although Wendy's proposed two entrances to its restau- rant site-one from Boston Road and a second. from Pollard Street-, the Board allowed only one. The Board required that there be only one entrance to the Wendy's site from Boston Road, and that there be do ac- cess from Pollard Road. Wendy's built its restaurant in conformity with the special permit and variance. Subsequently, Boston Post Road was widened from two to four lanes. This "significantly" changed -the traffic patterIl;s in and around Wendy's. , Vehicles entering Wendy's from the southbound side of the road were now required to cross two lanes of oncoming traffic Moreover, signs now prohibited vehicles leaving Wendy's from turning left onto Boston Post Road. In October 1997, Wendy's asked the Board to "modify" its 1992 spe- cial permit and variance to allow a second entrance to its site from Pol- lard Street. Wendy's presented the following eviden~e in support of its request: letters from the town director, town counsel, and state highway department all approving a ,Pollard Street entrance; and a traffic study with empirical data showing there would be no adverse impact on Pol- lard Street because of the second entrance. The Board denied Wendy's requested modification. Wendy's appealed the Board's decision to superior court. It argued that the Board's decision was "arbitrary, based on legally untenable grounds ... [an~] in contravention of the evidence presented and accept- ed by the Board." The superior court judge agreed with Wendy's. She ordered the Board to issue the special permit and variance allowing 'the second entrance onto Pollard Street. The Board appealed. Among other things, it argued that: (1) Wendy could not now-five years after the permit and variance issued-appeal frOm the condition limiting the number of entrances; and (2) in any case, its denial of Wendy's requested modification was proper. @ 2009 Thomson Reuters 9 67