Superior Court Sends Plan for Drive-Thru Wendy's Back to Zoning Board

A plan to build a Wendy’s with a drive-thru at the site of the former Bickfords on Reservoir Avenue has been sent back to the Zoning Board of Review after an April 5 Superior Court decision.

The court reviewed the matter after the Zoning Board’s approval of several zoning variances was appealed by several abutters.

The lot’s C-1 zoning prohibits drive thru windows on lots smaller than 40,000 square feet. The property, located at 860 Reservoir Avenue, is about 35,000 square feet. As a result, Paradigm Group, the intended operator of the Wendy’s, had applied for zoning relief to operate a drive-thru along with other dimensional variances.

According to the Superior Court decision, three opponents of the proposal addressed the Zoning Board: John Ennis, a lawyer for a neighboring restaurant; Kathy MacDonald, a nearby resident; and Brenda Ciccarelli, a nearby resident.

After a public hearing, the board in Dec. 2009 unanimously granted the requested relief, paving the way for the project to go forward.

Susan Read, Clifford Read, Jane Renza, Paul Crossman and Paula Mieinel filed an appeal of the decision in January, 2010.

The appellants ontended the Zoning Board erred on two fronts.

Firstly, in the appeal, they allege the board failed to properly notify abutters of subsequent hearings on the matter after issuing the first and only notification. That would mean the decision was “rendered infirm by procedural and substantive efforts,” the decision stated. “Specifically, appellants aver that the board’s failure to issue supplemental notice to abutting property owners contravened the notice requirements set forth in [the zoning ordinance.]”

Secondly, the appellants contended that the board issued a zoning relief “unsupported by legally competent evidence in the record,” and the applicants “failed to introduce the requisite evidence to satisfy each of the legal preconditions for granting use and dimensional variances.”

In short, the appeal alleges the board granted zoning relief on conclusions instead of facts. The board concluded the relief should be granted because the business couldn’t operate without variances. Instead, the board should only grant variances because the application meets the legal standard. The standard is to show that “all beneficial use” of the property would be lost without the variances.

The court rejected the appellants assertion that the board erred by not sending additional notices of the continued public hearing to abutters. In the decision, the court stated that the board met requirements by announcing future meeting dates at the end of each meeting.

The court, however, agreed with appellants that the Zoning Board’s decision was rendered without enough supporting evidence.

“The Court concludes that the board’s decision to grant [the applicants] application for zoning relief wholly devoid of the requisite findings of fact and conclusions of law,” the decision stated. “In particular, the board’s decision fails to make the necessary findings as to whether respondents satisfied their burden of showing that all beneficial use of the property would be lost if they were required to conform to the literal requirements of the zoning ordinance.”

The decision sends the matter back to the Zoning Board “so that it may make further findings of fact and conclusions of law.”

Although Paradigm requested a number of variances, only those that pertained to the drive-thru were the subject of the appeal.

The complete list of variances is as follows:

• A drive-thru use requires a minimum lot size of 40,000 square feet and the project is 5,263 short.
• The drive-thru ordinance calls for a 5-foot landscape buffer between the parking area and sidewalk . The site plan does not provide any buffer strip along Reservoir Avenue.
• The application requested 303.75 square feet of total signage on the site — a more-than 200 percent increase over the 100 square feet permitted by ordinance.
• The application requested a 234-square-foot 2-sided pylon sign — 836 percent larger than the 25-square-feet allowed in a C-1 zone.
• The site plan calls for a 21-foot tall sign where 12-feet is permitted.
• Two wall signs totaling 81.25 square feet were requested. 30 square feet is permitted by ordinance.
• The proposed shaded percentage of the lot is 2 percent, where 20 percent is required.
• The site plan provides 11 percent landscaped area on site. A minimum of 15 percent is required by code.