Shop Sues to Stay Open

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Feb. 8, 2019—An auto repair shop in Framingham, Mass. is fighting to remain open after being shuttered by the city, reports The MetroWest Daily News.

The owners of Ze Carlos Auto Repair at 243 Howard St. applied to the Zoning Board of Appeals (ZBA) in September to renew a special permit allowing transmission repair work on their property, The MetroWest Daily News reports.

The ZBA refused the request, citing concerns raised by Building Commissioner Michael Tusino about the condition of the premises.

Owners Tania and Dan Bicalho challenged the decision in court, however, arguing the board was more concerned with enhancing the image of Framingham’s downtown than with fairly evaluating zoning criteria when it denied the special permit, The MetroWest Daily News reports. In a zoning appeal filed in Middlesex Superior Court on Jan. 8, a lawyer representing the Bicalhos argued the board should have based its decision on criteria such as whether utilities and public services are adequate, and whether a transmission repair business creates an undue burden on neighboring properties or hurts the environment.

Instead, the board based its decision on alleged violations of the existing permit, and on the fact that Framingham is attempting to transform the area where the shop is located, the plaintiffs claim.

The ZBA “improperly injected this criterion into its analysis,” they claim, citing as evidence an email they received from a city staffer encouraging them to consider using the property as a restaurant, “or for some other amenity that new residents of the neighborhood would enjoy,” according to the complaint.

The property has been used by automotive business for more than 40 years, and was permitted for a transmission repair business by the ZBA in January 2001, according to The MetroWest Daily News.

The owners went to court several years later to maintain their right to keep the business running, filing a suit against the ZBA in Land Court in 2006. The court rendered a decision the following year, finding the special permit was valid, and the business should be allowed to remain open.

The ZBA later issued a supplemental two-year special permit in November 2016 allowing transmission repair and related activities. The Bicalhos applied to renew it in September, but the ZBA denied their request, The MetroWest Daily News reports.

During a pair of hearings in November and December, Tusino said cars are constantly parked outside the shop, blocking the sidewalk, and mechanics can be seen working on them outside of the garage bays, drawing complaints from the public.

They claim the ZBA’s ruling was “unreasonable, legally untenable, whimsical, arbitrary and capricious” because the board failed to consider the numerous criteria on which it was supposed to base its decision, and evaluated other criteria not set forth in the city’s zoning bylaw, The MetroWest Daily News reports. They asked a judge to rule the board’s decision was erroneous, and to remand the matter back to the ZBA.

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