Agenda - Planning Commission - 12/03/2009

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September 10, 20091 Volume 31 No. 17 Zoning Bulletin The Supreme Judicial Court of Massachusetts chose to_ hear the case. (j DECISION: Affirmed. The Supreme Judicial Court of Massachusetts first determined that Wendy's was not "estopped" from app~aling the one-entrance condi- tion five years later. This was because Wendy's would not have been able to appeal the decision in 1992 because it would not have been an "ag- grieved party." Any "claimed injury" related to the roadway expansion would have been speculative. When the Board issued the 1992 special permit and variance, plans for the roadway expansion were not final- ized and traffic patterns around Wendy's subsequently changed "signifi- cantly." Moreover, Wendy's was not appealing the 1992 special permit and variance. Rather, it had asked-as it was entitled to-the Board to modify a condition imposed in the special permit and variance in light of changed conditions. And, it was now asking the court to review the board's denial of that application for modification. . . The court further determined that Wendy's was entitled to its request- ed modification of the special permit and variance to allow a second en- trance to its site. The Board's decision was invalid in that it was "un- reasonable, whimsical, capricious, or arbitrary." This was because the Board's decision gave no "reasons" (i.e., no "explanation" or "permis- sible inference") as to: "why a second access from Wendy's on Pollard (). Street would not be in the best interests of the town or neighborhood"; "what the detriment to the public good might be;" "how the modifica- tion would undermine the purpose of the zoning bylaws;" "or why the degree of traffic problems resulting from the second entrance [was] too great a departure from baseline traffic levels." Here, the Board's decision merely contained "conclusions that [did] nothing more than repeat regu- latory phrases." The Board provided no rationale for its decision and the court was "not obliged to search for facts in the record to support a ra- tionale [that was not given]." See also: Barlow v. Planning Bd.of Wayland, 64 Mass. App. Ct. 314, 832 N.E.2d 1161 (200S). See also: Shoppers' World, Inc. v. Beacon Terrace Realty, Inc., 3S3 Mass. 63, 228 N.E.2d 446 (1967). Case Note: The Board had also argued that if the court ruled in Wendy's favor, the proper remedy would be to remand the issue back to the Board for reconsideration. It argued the superior coUrt: judge erred by ordering the Board to issue the special permit and variance. The Supreme Judicial Court disagreed. It said the order was appropriate because remand would be futile since all of the facts showed that a second entrance would have minimal impacts on traffic surrounding Wendy's. Since the Board had not and could \ J "~' 10 @ 2009 Thomson Reuters 68