“What do these mean? By what standards are they to be judged? How can they be applied, in practice, in anything other than an almost totally-subjective manner?” These are questions most municipalities do not want to have directed at their bylaws, especially their bylaws that pertain to land use regulations. But these are the exact questions asked by the Land Court in Cumberland Farms v. Jacob, (Mass. Land Ct. 2015), in a decision invalidating Wellfleet’s Formula Businesses portion of its Zoning Bylaw.
Cumberland Farms requested a number of special permits from the Wellfleet Zoning Board to permit it to redevelop its commercial property on Route 6 by demolishing existing structures, constructing a new building which would house the existing Cumberland Farms convenience store and a tenant’s liquor store, and adding a gas station to the property, along with landscaping and reconfiguring the entrance and exit. Cumberland Farms then withdrew the special permit requests for the convenience store use and the liquor store use, believing them to be grandfathered under earlier permits, and revised its site plan to comply with the zoning bylaw’s entrance and exit requirements.
The Zoning Board denied the remaining special permit requests on the grounds that Cumberland Farms had not obtained a Formula Business Special Permit from the Wellfleet Planning Board; the Board later admitted that this was an invalid reason for denying the special permits. However, the Zoning Board also denied the special permits on the grounds that there was inadequate parking associated with the proposed redevelopment, and due to traffic and property value concerns. Cumberland Farms appealed the denial, and also challenged the validity of the Formula Businesses bylaw under G.L. c. 240, § 14A.
The Land Court judge started his analysis with the Formula Businesses bylaw. Put simply, the bylaw imposes stricter requirements on businesses which have certain distinguishing features, one of which is that the business is identified as being one of at least 25 stores worldwide. Cumberland Farms, a major operator of convenience stores and gas stations, fell into this category, and was therefore required to meet certain criteria before a special permit for its use of the property would be allowed.
As the Land Court noted, “[z]oning can only deal with use, ‘without regard to the ownership of the property involved or who may be the operator of the use.’” The Formula Businesses bylaw violated this axiom. While municipalities are permitted to pass regulations to preserve aesthetics, as Wellfleet argued, such regulations must be uniform – examples include design regulation or historic preservation bylaws. Wellfleet has neither, instead relying on the Formula Businesses bylaw to regulate character and aesthetics. While recognizing that many of the Town's goals are "laudable . . . , and, if uniformly applied with more clearly defined and less vague, subjective standards, could be proper subjects of zoning," the bylaw as drafted was invalid.
The Land Court judge put it best:
“Put simply, the Formula Business bylaw regulates ownership, not use. It singles out certain businesses for more onerous regulation, based on nothing more than the name on their door, without an evidentiary basis to do so. And even with the best intentions, the subjective and vague standards by which the Planning Board is empowered to act will result in arbitrary and capricious decisions. The bylaw is thus invalid, both on its face and as applied.”
After this stinging conclusion, the Court turned to the question of whether Cumberland Farms required new special permits for the convenience store and liquor store use, and determined that both uses were permitted without the need for a new special permit, or a modification of the existing special permit. The Court also concluded that the Zoning Board’s denial of the special permit requests was without merit, dismissing the traffic, property value, and glare concerns raised by the Town, and remanded the matter to the Zoning Board for issuance of the special permits.
So, it looks like Wellfleet will be getting a new, improved Cumberland Farms, complete with gas station, on Route 6. As the Court noted, this redevelopment may even improve Cape traffic (although we’re skeptical of that claim!) as it eliminates the need for cars travelling to the Cape to turn left across traffic to obtain gasoline.