The Law

Drive-Through Decision by Ron Davis Two tenants of a new Massachusetts shopping center will get the drive-through windows they want, thanks to a court ruling that voids a local government finding. The new shopping center, at a location in the Boston suburb of Saugus, will include, among other tenants, a Walgreen’s drug store and a Wendy’s restaurant, both of which plan drive-through windows for the convenience of customers. Opponents of those drive-through windows argued, however, that their presence will create an increase in both traffic and noise. Specifically, the opponents added, a bordering residential neighborhood would be adversely affected by the windows. The local planning board nevertheless approved construction plans that included the drive-through windows. But local government agencies in Saugus cannot issue a permit for drive-through windows without approval of the Saugus Board of Selectmen, and its members denied the permit on grounds cited by the opponents. Developers of the shopping center appealed, pointing out that the town’s fire department, police department, board of health, and inspection services had reviewed plans for the drive-through windows and none of them had objected. Moreover, the developers noted, the proposed project complies with each of the conditions listed as criteria for adding drive-though windows to retail establishments. Finally, the developers added, drive-through windows make shopping more convenient for customers, lessen parking congestion, and improve vehicle flow. A Massachusetts Land Court judge, in ruling in favor of the developers, explained that the law governing special building permits allows drive-through windows, “provided they would not adversely affect the health, safety, convenience and welfare of the neighborhood or town.” Concluded the judge, “The drive-through windows in this case will not be disruptive to the neighborhood, in and of themselves. The site layout provides for an efficient and safe traffic flow, with a separate lane to the two drive-through windows and appropriate signage. Furthermore, the drive-through windows are located on the sides of the buildings away from the residences and are shielded by those structures. Lastly, the planning board found, in its site-plan approval, that the proposed project would ‘protect the abutting properties and the community by minimizing any detrimental use of the locus.’” (Realm Realty Corp. v. Fasano, 2005 WL 3247144 [Mass.Land Ct.]) Decision: December 2005 Published: December 2005