VALLEY PROPERTIES, INC. vs. PINNACLE PARTNERS, INC., CHARLES WOTJAS, SUSAN E. CARTER, KIM J. MACKENZIE, JAMES P. GOOD, ROBERT C. MORSE, CHRISTOPHER T. GARRAHAN, AND JOHN S. GOFFIN, as they all are were members or alternate members of the PLANNING BOARD OF THE TOWN OF CHELMSFORD, and the PLANNING BOARD OF THE TOWN OF CHELMSFORD.

Plaintiff Valley Properties, Inc. ("Valley Properties") filed an unverified Complaint on September 21, 2006, appealing, pursuant to G. L. c. 40A, § 17, an Off-Street Parking and Loading Special Permit ("Parking Special Permit 2") granted by Defendant Planning Board of the Town of Chelmsford ("Planning Board") to Defendant Pinnacle Partners, Inc. ("Pinnacle"). Parking Special Permit 2 granted a waiver of the parking requirements under Article V, Section 195-18 (A) of the Town of Chelmsford Zoning By-law ("By-law") in connection with the construction of a Stop & Shop facility (the "Project") on a parcel of land located at 299 Chelmsford Street (being the intersection of Chelmsford Street (Route 110), Route 3 and Glen Avenue), Chelmsford, Massachusetts ("Locus"). This case follows two prior cases heard by this court (Sands, J.) (Miscellaneous Case Nos. 274274 and 274535), in which a decision ("Decision I") was issued on January 10, 2006. Decision I affirmed the Site Plan Approval, the Landscaping Special Permit and the Major Business Complex Special Permit, all as defined in Decision I, issued by the Planning Board to Pinnacle for the construction of the Project, but did not allow the Off-Street Parking and Loading Special Permit (“Parking Special Permit 1”), which this court remanded to the Planning Board. Upon remand, the Planning Board was to determine the number of parking spaces required for the Project under Article V, Section 195-17 of the By-law, and to determine whether a special permit for parking was necessary and, if so, warranted for the Project under the requirements of Article V. This case was consolidated with the two earlier cases on October 13, 2006, following a case management conference of the same day.

On February 1, 2007, the parties filed a Joint Pre-Trial Memorandum in which the parties agreed upon certain facts and exhibits. A view was held on March 28, 2007, and on the same day a two day trial commenced before this court (Sands, J.) at the Land Court in Boston. On July 20, 2007, Valley Properties and Pinnacle each filed a Post-Trial Brief, and this case went under advisement at that time.

Testimony at trial was given by Stephen Stapinski ("Stapinski")(president of Merrimack Engineering, the firm Pinnacle used for civil engineering, site design and permitting), John Matthews ("Matthews")(a real estate developer who represents Valley Properties), Patrick Dunford ("Dunford")(a traffic engineer for the firm of Vanasse Hangen & Brustlin, Inc., ("VHB"), retained by Pinnacle), and William Scully ("Scully")(a traffic engineer for MS Transportation Systems, Inc., ("MS Transportation") hired by Valley Properties). There were forty-four exhibits admitted into evidence.

Based upon the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Valley Properties is the owner of the Eastgate Plaza shopping center property at 288 Chelmsford Street, Chelmsford, Massachusetts ("Eastgate Plaza"), which is directly across the street from Locus. Valley Properties' current tenants under lease at Eastgate Plaza are TJ Maxx, Fashion Bug, KB Toys, Birch Drug, LLC, Market Basket, and Anton's Cleaners.

2. Locus is currently owned by Crossroads Realty LP. Pinnacle is developing the Project on Locus, as an agent for The Stop & Shop Supermarket Company. The Project consists of a supermarket, which includes, but is not limited to, a grocery sales area, a pharmacy, a bakery, a florist, a bank and a loading area. The Project is within the CC-Shopping Center zoning district pursuant to Article II, Section 195-2 of the By-law.

3. Locus is comprised of 301,456 square feet or 6.92 acres. The Project, as approved by the Planning Board, consists of 76,375 square feet of gross floor area. The Project is an allowed use in the CC-Shopping Center zoning district, except that a Zoning Board special permit is required for more than 10,000 square feet of gross floor area. [Note 1]

4. There are two existing accesses to Locus, one located on Chelmsford Street and one located on Glenn Avenue. A large paved parking lot, the vacant Chelmsford Cinema building, and a Fleet Bank ATM kiosk currently exist on Locus.

5. In Decision I this court ruled the Landscaping Special Permit and the Major Complex Special Permit for the Project were valid, but remanded both to the Planning Board for determinations consistent with Decision I. The Site Plan Approval and the ZBA Special Permit for the Project were affirmed. However, Parking Special Permit 1 was not affirmed, but was remanded to the Planning Board to determine the number of parking spaces required for the Project under Article V, Section 195-17, and to determine whether a special permit for parking was necessary under the requirements of Article V.

6. Pursuant to this court's remand order in Decision I, Stapinski, Pinnacle's civil engineer, recalculated the required parking spaces for the Project based on "net floor area" as opposed to "net leasable floor area." [Note 2] Pinnacle's prior calculation by the latter formula yielded a requirement of 267 parking spaces, whereas the new calculation yielded a total of 362 required parking spaces. Stapinski calculated net floor area by taking a plan showing the gross floor area of 76,375 square feet and eliminating from the gross floor area the combined areas of stairways, elevators, bathrooms, mechanical rooms and janitorial space to arrive at a net floor area of 72,220 square feet. Stapinski then applied the By-law formula of one parking space to every 200 square feet to arrive at 362 required parking spaces. This calculation was presented to the Planning Board, who concurred with the analysis. [Note 3]

7. As a result of this analysis, Pinnacle filed an application (the "Application") with the Planning Board on May 30, 2006, for Parking Special Permit 2, which provided for 287 parking spaces. The Application included a site plan entitled "Site Development Permit Plan, Plan of Land in Chelmsford, Massachusetts, Proposed Super Stop & Shop," consisting of eighteen sheets (the "Site Plan"). The Site Plan was prepared by Merrimack Engineering Services and dated December 1, 2000, revised April 24, 2006.

8. Pinnacle retained VHB to conduct a parking study to estimate the weekday and weekend average and peak parking space demand of the Project. In doing this analysis, VHB used two sources. VHB referred to parking demand rates for supermarkets published by the Institute of Transportation Engineers ("ITE") in Parking Generation, Institute of Transportation Engineers (3rd Edition, 2004) ("Parking Generation"). VHB also conducted its own "local" study based on five existing Stop & Shop supermarkets.

9. Parking Generation provides parking data for various land uses, assigning each land use on which data is provided a code. ITE designates "supermarkets" as Land Use 850, which further distinguishes between urban, suburban, and rural supermarket locations. With respect to the urban, suburban, and rural distinction, Parking Generation states that the "specific reasons why parking demand varies between area types are likely associated with issues such as shared parking, transit availability, pedestrian friendly design, parking restrictions, and management policies and multi-stop trip making."

10. With respect to Land Use 850, Parking Generation provides data regarding peak period parking demand in the form of a "parking rate ratio" which correlates parking space demand to square footage of building. VHB created a so-called "blended rate" by averaging the urban and suburban rates provided by ITE. VHB's blended rate resulted in an average [Note 4] weekday demand rate of 2.51 vehicles per 1,000 square feet and an average Saturday demand rate of 3.06 vehicles per 1,000 square feet. Applied to the Project, this results in an average weekday demand of 253 parking spaces and an average Saturday demand of 270 parking spaces. VHB also applied ITE's seasonal adjustment factor (nine percent) to its blended rate resulting in a peak season weekday demand of 276 parking spaces and a peak season Saturday demand of 294 parking spaces.

11. Parking Generation provides that:

"the statistics in this report provide averages, ranges, and statistical quality values that can help the analyst determine (1) the general nature of parking demand for a given land use and (2) where more detailed local studies are needed. This is why even land uses with only one or two studies are provided – not as the final determination of parking demand but as a starting point for analysis . . . . This report is an informational report – NOT a manual, recommended practice, or standard. The distinction may be subtle to many users, but it is very important to understand what Parking Generation is and is not . . . . The data alone will not provide accurate estimates. Professional judgment and evaluation are necessary to effectively use the information."

12. The majority of the data points provided by ITE's Parking Generation pre-date 1990, are extracted from studies outside the Northeast, and are based on store sizes half the size of the Project.

13. VHB also used "local" data from five existing stand-alone Stop & Shop supermarkets throughout New England including Watertown, Medford, Lynn, Worcester, and North Smithfield, Rhode Island and arrived at an average weekday demand of 191 parking spaces (allowing 96 of the proposed 287 spaces to remain vacant) and a peak weekday demand of 208 (allowing for 79 vacant spaces) by applying the ITE seasonal adjustment factor. VHB determined an average Saturday parking demand of 237 (leaving 50 open spaces) and a Saturday peak season demand of 258 (leaving 29 open spaces) using the ITE seasonal adjustment factor. Employee and vendor parking is accounted for and inherent within VHB's local data. Both the local rates and the ITE demand rates were presented to the Planning Board.

Parking Special Permit 2.

14. Public hearings were held by the Planning Board on August 9, 2006, and on August 30, 2006, when the Planning Board voted unanimously to grant Parking Special Permit 2 under Article V, Section 195-18 (A) of the By-Law. The Planning Board filed its decision granting Parking Special Permit 2 with the Chelmsford Town Clerk on September 1, 2006. The Project as approved by the Planning Board provides 287 parking spaces.

15. Parking Special Permit 2 states, in pertinent part, as follows:

16. Parking Special Permit 2 also includes eighteen Specific Findings, fifteen of which were previously found in Parking Special Permit 1. Specific Finding (c) stated in, in part, as follows:

“Therefore, the Board finds the reduction in parking spaces will benefit the Project, the Town, abutters, and the environment by reducing the paved area, avoiding a sea of concrete, and permitting treated stormwater drainage to flower cleaner and more naturally into the ground and groundwater.”

17. Fifteen of the Project's parking spaces are to be reserved for users of the Town's proposed Bruce Freeman public bike trail abutting Locus.

The Relevant Provisions of the By-law.

18. Article V, "Off Street Parking and Loading," Section 195-16 (A) of the By-law provides:

19. Valley Properties appealed the Planning Board's decision granting Parking Special Permit 2 to this court on September 21, 2006.

20. Valley Properties retained MS Transportation to evaluate VHB's study. MS Transportation used ITE's suburban rate under Parking Generation's Land Use 850 as opposed to VHB's blended rate. Applied to the Project, ITE's suburban rate yields an average weekday parking demand of 332 parking spaces and an average Saturday demand of 361 parking spaces (both of which exceed the Project’s proposed 287 spaces by 45 and 74 spaces, respectively).

21. MS Transportation also applied a weighted average, as opposed to the straight average used by VHB, to the ITE urban and suburban rates under Parking Generation's Land Use 850 used by VHB in determining its blended rate. A weighted average assigns a different weight, or relative importance, to each group of data points based on criteria established by the user. A weighted average is useful if one wants to assign more influence to one group of data points over another when calculating an average. MS Transportation considers this relevant because using a weighted average rather than a straight average results in a greater Saturday average parking demand. [Note 7] Applied to VHB's analysis, the weighted weekday average parking demand rate is 3.14 (compared to VHB's 2.51, not weighted), and the weighted Saturday average parking demand rate is 3.42 (compared to VHB's 3.06, not weighted). [Note 8]

22. In its analysis, MS Transportation also applied the 85th percentile measure which, as used by ITE, is a mathematical statistical measure where out of a given sample size the measure would represent the demand rate or number of parking spaces that is exceeded only fifteen percent of the time. Applying the 85th percentile measure to a parking analysis means that fifteen percent of the time, the parking demand will be higher. [Note 9] MS Transportation applied the 85th percentile measure to the VHB's blended rate and to MS Transportation's calculation of a weighted blended rate. As applied to VHB's blended rate of 2.51, the 85th percentile rate is 3.14 resulting in an estimated design rate of 3.29. Applied to MS Transportation's weighted VHB rate of 3.06, the 85th percentile rate is 4.31, resulting in an estimated design rate of 4.53.

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Both Pinnacle and Valley Properties agreed that Valley Properties had standing as a "person aggrieved" to contest Parking Special Permit 1 pursuant to Decision I and also that this court's determination as to standing in Decision I precludes the re-litigation of this issue.

Pinnacle was granted Parking Special Permit 2 pursuant to Article V, Section 195-18 (A) of the By-law. [Note 10] Article V, Section 195-17 of the By-law states that the minimum parking requirements for a "store, retail business and services" is "1 space per 200 square feet of net leasable floor area . . . ." Pursuant to Decision I, Pinnacle re-calculated the minimum parking requirement for the Project and arrived at a calculation of 362 parking spaces, which is uncontested by Valley Properties and the Planning Board. Due to various constraints, [Note 11] Pinnacle concluded that the Project could provide 287 parking spaces, 75 less than the calculated minimum, and submitted to the Planning Board its Application for Parking Special Permit 2.

As discussed, supra, Section 195-18 (A) of the By-law allows a reduced number of parking spaces for the proposed use if the property owner can demonstrate that fewer spaces will meet all parking needs. In addition, the Planning Board must, under Article XIX, Section 195-103 (B) of the By-law, make a written determination that the adverse effects of the Project will not outweigh its beneficial impacts, based on the consideration of six criteria set out by that Section.

Valley Properties challenges the validity of Parking Special Permit 2, asserting that the Planning Board exceeded its authority in the issuance of this special permit. Valley Properties' challenge is based on Pinnacle's alleged misrepresentations to the Planning Board relative to its parking space analysis, the Planning Board's alleged violations of the By-law in the grant of the special permit, and the Planning Board's alleged failure to include a certain landscaping condition discussed at the Planning Board meeting on August 30, 2006, in its grant of the special permit. [Note 12] Pinnacle argues that it presented legally sound and substantiated evidence both to the Planning Board and at trial relative to the adequacy of a reduced number of parking spaces for the Project, and thus the Planning Board did not exceed its authority in granting Parking Special Permit 2. I shall address each of these issues in turn.

On an appeal from a decision of a planning board granting a special permit, the burden of proof is on the party to whom a special permit was granted. See Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-560 (1954); Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 626 (1986). "The judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him." G. L. c. 40A, § 17; Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Lawrence v. Board of Appeals of Lynn, 336 Mass. 87 , 89 (1957). The judge gives no evidentiary weight to the findings or decision of the board. Josephs, 362 Mass. at 295; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). When a board grants an application "not only must [it] make an affirmative finding as to the existence of each condition of the statute or by-law required for the granting of the . . . special permit . . . but the judge in order to affirm the board's decision on appeal must find independently that each of those conditions is met." Britton, 59 Mass. App. Ct. at 73, n.5 (quoting Vazza Properties v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973)).

It is not the reviewing court's position to substitute its own judgment for that of the board. Caruso v. Pastan, 1 Mass. App. Ct. 28 , 30 (1972). "It is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling." Copley v. Bd. of Appeals of Canton, 1 Mass Ap. Ct. 821, 821 (1973). "The decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary." MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). The court, however, gives much discretion to local boards in allowing a special permit. See Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 10 (2003) (the trial court gives deference to the board’s decision on local zoning matters). A local board is also given certain discretion in applying the By-law. See Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004) (“[a]s the local authority charged with administration of the by-law, the board's interpretation is entitled to some measure of deference”) (citing Building Commr. of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 713 (2000); APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000)).

Pinnacle's Alleged Misrepresentations to the Planning Board.

Valley Properties opposes the Planning Board's grant of Parking Special Permit 2 and contends that there are several problems with the data Pinnacle presented to the Planning Board, on which the Planning Board based its decision.

Parking Special Permit 2 was approved for 287 parking spaces. Fifteen of those parking spaces will be dedicated for recreational use in conjunction with a proposed public bike trail and ten of those parking spaces will be set aside for handicapped use. The Planning Board made several findings in support of its decision to grant the special permit, including General Findings, Special Permit Criteria Findings and Specific Findings based on information presented to it by Pinnacle at two public meetings. In its Specific Findings, the Planning Board expressly states that it relied on the evidence submitted by Pinnacle in its presentation and the filings accompanying the Application to reach its conclusion that 287 parking spaces will adequately serve the Project, as required by Section 195-18 (A) of the By-law.

In its Specific Findings, the Planning Board also noted the numerous benefits of the reduction in parking spaces, and of the Project in general, to the Town, abutters and the environment. The benefits found by the Planning Board related to each of the six criteria set out by Article XIX, Section 195-103 (B) including, among others: replacing the deteriorating Route 3 Cinema building; reducing the paved area that sits at Locus currently; avoiding a sea of concrete (as Pinnacle is required to landscape Locus); improving the stormwater drainage system of Locus; creating employment opportunities; and replacing current dumpsters with modern environmentally friendly transformers. Based on the foregoing findings, it appears that the Planning Board has determined that the adverse effect of fewer parking spaces does not outweigh the beneficial effects of more landscaping and open space in conformance with 195-103 (B) of the By-law. [Note 13]

As discussed, supra, the primary test that Pinnacle needed to achieve for the special permit was to show that its proposed number of parking spaces met the parking needs for the Project. At trial, Pinnacle, through the testimony of Dunford and Stapinski, provided evidence that 287 parking spaces would adequately serve the Project's parking demands pursuant to Section 195-18 (A). Dunford relied on two sources in his analysis- ITE's Manual, Parking Generation, and "local" empirical data collected from five existing Stop & Shop supermarkets.

Regarding the former, Dunford averaged urban and suburban parking demand ratios supplied by Parking Generation's Land Use 850, titled "Supermarkets," to arrive at a "blended rate." Dunford testified that use of a blended rate was appropriate based on his opinion that Locus fit somewhere between the urban and suburban classification. Dunford arrived at this conclusion based on the existence of six other supermarkets within a three mile radius (and three more just beyond the three mile radius) and a bus route by the site, as well as by viewing aerial photographs which showed housing density near Locus. [Note 14] Although Dunford conceded at trial that the Town of Chelmsford as a whole would be characterized as suburban, he maintained his position that Locus is urban/suburban based on its close proximity to the abutting city of Lowell, which the parties agree is classified as urban according to ITE standards. The proximity of Locus to Lowell is relevant based on the theory that Locus takes on some of the characteristics associated with the urban environment and thus does not fall squarely into an ITE suburban classification.

Based on a blended rate, Pinnacle's analysis of the ITE data yielded an average weekday demand of 253 parking spaces and an average Saturday demand of 270. During the peak season, the analysis resulted in a weekday demand of 276 and a Saturday demand of 294. Although Pinnacle presented this data to the Planning Board, it is not the information on which Pinnacle ultimately relied, as it believed the local data to be more representative of the Project. In making this determination, Pinnacle considered that the majority of the ITE data points antedated 1990, were gathered from areas outside the Northeast, and were based on store sizes half the size of the Project. Pinnacle also relied on the text of Parking Generation, which cautions, "the statistics in this report provide averages, ranges, and statistical quality values that can help the analyst determine (1) the general nature of parking demand for a given land use and (2) where more detailed local studies are needed . . . . This report is an informational report- NOT a manual, recommended practice, or standard . . . . The data alone will not provide accurate estimates. Professional judgment and evaluation are necessary to effectively use the information."

Accordingly, Pinnacle obtained its own data from five existing "local" Stop & Shop stores including: Watertown, Medford, Lynn, Worcester, and North Smithfield, Rhode Island. Dunford testified that he chose the five stores based on similar locality, store size, and general traffic conditions. [Note 15] Based on its own data, Pinnacle arrived at an average weekday parking demand of 191 and a Saturday parking demand of 237. During the peak season, Pinnacle calculated an average weekday demand of 208 parking spaces and a peak season Saturday demand of 258. In addition, Dunford considered Locus unique due to the competing Market Basket supermarket located in Eastgate Plaza directly across the street from Locus. These factors, Pinnacle argues, will decrease the parking demand, deeming local data more relevant than ITE data, and also making the parking supply sufficient to meet the projected demand. Based on the foregoing, Pinnacle ultimately relied on this data in its proposal, and thus considered its request for Parking Special Permit 2 to be reasonable and sufficient in that 287 parking spaces meets the needs of the Project pursuant to Section 195-18(A) of the By-law.

At trial, Valley Properties, through the testimony of Scully, argued that Pinnacle should have used an ITE suburban rate under Land Use 850 in Parking Generation, rather than a "blended rate," to calculate the estimated parking demand. Valley Properties offered evidence that Chelmsford is most accurately classified as ITE suburban due to its low density residential population, minimal transit, high use of automobiles, and little pedestrian traffic. In addition, Valley Properties contested the validity of Pinnacle's empirical data, and attempted to prove that the five "local" Stop & Shop sites were situated in predominantly urban areas, purportedly resulting in an underestimated parking demand by Pinnacle.

Based on the suburban rate, Scully reached an average weekday demand of 332 parking spaces and a Saturday demand of 361 parking spaces. Each of these demands exceeded the 287 parking spaces proposed by Pinnacle by at least 45 parking spaces. According to Valley Properties, this would result in excessive queuing which might cause adverse impacts to the adjacent roadways and nearby properties, including Eastgate Plaza. In support of its concern, Valley Properties offered the testimony of Matthews, who testified that parking at the Eastgate Plaza property is "tight." [Note 16] Valley Properties also argued that Pinnacle should have used a weighted ITE average and an 85th percentile measure to arrive at its estimate.

In his testimony at trial, Scully conceded that traffic engineers exercise personal judgment when analyzing parking data, and thus two engineers could arrive at different conclusions. Even though Valley Properties' contention that Chelmsford is most accurately classified as suburban might be reasonable, Pinnacle's position that the information provided by ITE is only meant to be a starting point of analysis, and that the ultimate discretion lies with the expert, is persuasive. In this case, Pinnacle, for reasons previously discussed, chose to ultimately rely on its own set of empirical data to make its determination that 287 parking spaces would adequately serve the Project. Also particularly persuasive in respect to the Planning Board's decision, is Section 195-18 (A)(3) of the By-law which allows the Board to consider "peculiarities of the use that make usual measures of demand invalid" [Note 17] when granting a waiver in a required number of parking spaces. None of Pinnacle's evidence was misrepresented to the Planning Board. Moreover, the trial court gives deference to the board’s decision on local zoning matters. See Simmons, 60 Mass. App. Ct. at 10.

Based on the foregoing, the evidence presented at trial, upon which the Planning Board based its decision, is reasonable and supports the finding of the Planning Board that 287 parking spaces meets the parking demand for the Project. As a result, I find that the Planning Board arrived at a legally tenable conclusion that 287 parking spaces will adequately serve the Project.

The Planning Board's By-Law Violations

Valley Properties argues that the Planning Board violated Section 195-18 (A) the By-law in its grant of Parking Special Permit 2. In its post-trial brief Valley Properties alleges the By-law only "allows issuance of a special permit reducing the minimum parking otherwise required where "the required number of spaces are not needed" and where "fewer parking spaces will meet all parking needs.""

Valley Properties also alleges that the Planning Board violates the express language of Section 195-18 (B), by not taking into account the possibility that it may, subsequent to its decision, require the "full build-out" of parking spaces. Valley Properties further contends that certain physical and regulatory constraints on Locus will preclude a "build-out."

The interpretation of the meaning of a By-law is a question of law for the court. See Goldhurst v. Board of Appeals of North Andover, 27 Mass. App. Ct. 1183 , 1184 (1989). As with the interpretation of statutes, the ordinary principles of construction should be employed to determine the meaning of a by-law. See APT Asset Mgmt., 50 Mass. App. Ct. at 138; Green v. Board of Appeals of Norwood, 358 Mass. 253 , 258 (1970); Building Comm'r of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 717 (2000); G. L. c. 4, § 6. The Planning Board, as a special permit granting authority, is entitled to "all rational presumptions in favor of its interpretation of its own by-law, [provided] there [is] a rational relation between its decision and the purpose if the regulations it is charged with enforcing." Building Comm'r of Franklin, 48 Mass. App. Ct. at 713. See also APT Asset Mgmt., Inc., 50 Mass. App. Ct. at 138 (stating that a court construes a bylaw "in accordance with ordinary principles of statutory construction, with some measure of deference given to the board's interpretation"); Britton, 59 Mass. App. Ct. at 73 (“the court gives ‘some measure of deference’ to the local board’s interpretation of its own zoning by-law”).

In regards to Section 195-18 (A) of the By-law, Valley Properties misrepresents the express content of the provision, omitting the key phrase from its post-trial brief, "if a property owner can demonstrate to the satisfaction of the Board" (emphasis added). In this case, the Planning Board, over the course of two public meetings, was unanimously satisfied with the evidence Pinnacle presented and thus issued the waiver. Furthermore, as discussed, supra, I find that the evidence presented by Pinnacle at trial allowed the Planning Board to grant Parking Special Permit 2.

Section 195-18 (B) as discussed, supra, allows, but does not require, for the Planning Board or the Inspector of Buildings to determine and order a full "build-out" some time after a special permit has been granted. It follows that Valley Properties' contention that Pinnacle will not be able to "build-out," should it be ordered, is irrelevant. Based on the foregoing, I find that the Planning Board did not violate the By-law or act beyond its discretion in granting Parking Special Permit 2.

The Landscaping Condition

Finally, Valley Properties contends that the Planning Board failed to include a certain landscaping requirement in its decision that it allegedly agreed upon as a condition for granting Parking Special Permit 2. Because Valley Properties, as discussed in footnote 12, supra, did not raise the issue of landscaping in its Complaint, this issue is not properly before the court. However, from the evidence presented at trial, this issue does not appear to affect the validity of Parking Special Permit 2. Valley Properties references the Planning Board's August 30, 2006, meeting and the Planning Board's suggestion at that time to include "additional wording in the parking special permit regarding the Bylaw's requirement of landscaped islands in the parking lots and the Board's conclusion that landscaped islands were warranted to break up the expanse of paving on the site." Valley Properties errs in its contention, as the Planning Board did indeed comply with such suggestion. In its Specific Findings, Section 3 (c), it notes "Section 195-44.A of the Zoning Bylaw requires landscaped islands within parking lots. The Planning Board found a reduction in parking spaces was supported by the need for landscaping to break up the large expanse of pavement." [Note 18] Therefore, Valley Properties fails on this issue as well.

Based on the foregoing, I find that the Planning Board did not act in an arbitrary, capricious or unreasonable manner, nor base its decision on a legally untenable ground, in granting Parking Special Permit 2.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: August 26, 2008