RICHARD MAGGIO, TRUSTEE OF LORRAINE REALTY TRUST vs. KEVIN DONOVAN, DAVID EDMONDS, CLAUDIA LEIS BOLGEN, MICHAEL VENTRESCA, JOHN M. CASHELL, ROBERT DOHERTY and MARTIN McGAH, as they constitute the PLANNING BOARD OF THE CITY OF WOBURN

Plaintiff Richard Maggio, Trustee of Lorraine Realty Trust, filed his unverified Complaint on December 28, 2007, appealing, pursuant to G. L. c. 40A, § 17, a decision of Defendant Planning Board of the City of Woburn which denied Plaintiff’s petition for a site plan special permit for an expanded parking facility at the Proposed Parking Lot, as hereinafter defined. A case management conference was held on February 29, 2008. Plaintiff filed his Motion for Partial Summary Judgment on October 6, 2008, together with supporting memorandum, Statement of Undisputed Material Facts, and Affidavit of Richard Maggio. On December 15, 2008, Defendant filed its Opposition, together with supporting memorandum. A hearing was held on the motion on January 12, 2009, but the motion was not acted upon at the request of the parties. A pre-trial conference was held on March 4, 2009. A site view and the first day of trial at the Land Court in Boston was held on May 4, 2009. The second and final day of trial was held on May 5, 2009, at the Land Court in Boston. The parties filed their post-trial briefs on August 12 and August 13, 2009, at which time the matter was taken under advisement.

Testimony at trial was given by Richard Maggio (Plaintiff), Eric Eby (“Eby”) of Greenman-Pederson, Inc. (“GPI”) (Plaintiff’s traffic engineer), David Kimmelman (neighbor), David Larsen (neighbor), and Keri Pyke (“Pyke”) of Howard/Stein-Hudson Associates, Inc. (Defendant’s traffic engineer). There were eighteen exhibits admitted into evidence, one in multiple parts.

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

1. Plaintiff owns two abutting parcels of land located on Holton Street in Woburn, Massachusetts. One parcel is located at 17-34 Holton Street and contains an existing parking lot (the “Existing Parking Lot”), which includes and is serviced by a commercial building (a bus stop shelter). The other parcel owned by Plaintiff is located at 34A Holton Street (“Lot 34A”) and is the location for a proposed commercial parking lot (the “Proposed Parking Lot”). Both properties are located in the Industrial (IG) Zoning District under the City of Woburn Zoning Ordinance (the “Ordinance”). Pursuant to the Ordinance, commercial parking garages and parking lots are uses allowed by right in an IG Zoning District. [Note 1]

2. In 2003, at which time the Ordinance did not require a special permit or site plan review for a commercial parking lot, Plaintiff received a building permit to construct the Existing Parking Lot. On November 16, 2004, Plaintiff received an occupancy permit for the Existing Parking Lot. The Existing Parking Lot contains two entrances (one on Holton Street and one on Bucci Way) and one exit (on Holton Street). [Note 2] The Holton Street ingress/egress is a single curb cut. The Existing Parking Lot contains 286 parking spaces and is leased by Plaintiff to Winchester Hospital for employee satellite parking. The hospital employees are transported to the hospital from the Existing Parking Lot via shuttle buses that run on a regular basis, and which travel south along Holton Street, which is the opposite direction of a narrow portion of Holton Street, as discussed, infra.

3. Plaintiff acquired Lot 34A on May 5, 2004. [Note 3] Lot 34A has frontage on Bucci Way and directly abuts the Existing Parking Lot; Lot 1 does not abut Bucci Way but it directly abuts the Existing Parking Lot. Lot 1 is elevated above the Existing Parking Lot; though abutting, significant rock ledge separates the Existing Parking Lot and Lot 1.

4. By application dated December 12, 2006 (the “Application”), Plaintiff applied for site plan review of Lot 34A pursuant to Section 12 of the Ordinance. [Note 4] Section 12.3.1 states that “In cases where Site Plan Review is required by this section but no Special Permit is required under Section 5 of this ordinance, Site Plan Review shall constitute a Special Permit for which the Planning Board shall be the Special Permit granting authority.” The Application sought to construct 252 parking spaces on Lot 1. Along with the Application, Plaintiff filed a plan titled “Site Development Plans for Commercial Parking Lot” dated January 5, 2007, and prepared by Allen & Major Associates, Inc. (the “Site Plan”). Defendant conducted public hearings on the Application on February 13, 2007, March 13, 2007, April 10, 2007, May 8, 2007, May 22, 2007, June 26, 2007 and August 7, 2007. On July 27, 2007, Plaintiff submitted a letter to Defendant requesting leave to withdraw the Application, which Defendant granted. On the same day, Plaintiff submitted a new application (the “New Application”), along with the Site Plan, requesting a site plan special permit for Lot 34A. [Note 5]

5. The Site Plan shows an access connection between the Existing Parking Lot and the Proposed Parking Lot located at the southeast corner of the Existing Parking Lot, near the Bucci Way entrance. While Lot 34A has frontage along Bucci Way (Proposed Lots 2, 3, 4, 5, and 6 as shown on the Site Plan), the Proposed Parking Lot itself has no abutting points of access along either Bucci Way or Holton Street. Because the Proposed Parking Lot uses the same ingress and egress as are presently used for the Existing Parking Lot, vehicles must travel through the Existing Parking Lot in order to reach the Proposed Parking Lot.

6. In conjunction with the Application and New Application, Eby filed the following four traffic studies with Defendant: (1) a GPI Traffic Impact Assessment dated December 2006; (2) a GPI Supplemental Traffic Analysis dated March 2007; (3) a GPI Supplemental Traffic Information dated June 2007; and (4) a GPI Technical Memorandum dated June 2007 (together, the “Eby Studies”). Pyke filed three memoranda with Defendant dated May 2, 2007, June 26, 2007 and October 2, 2007 (the “Pyke Reports”). [Note 6] The Pyke Reports were not independent traffic studies; they were an analysis of the traffic studies in the Eby Studies.

7. Defendant held public hearings on the New Application on October 2, 2007, October 23, 2007, and November 27, 2007. By a vote of five to two, Defendant voted to deny the New Application by decision dated December 10, 2007 (the “Denial”), and filed with the City Clerk on December 10, 2007. The Denial included the following three findings:

1. That the petitioner failed to prove that adequacy of the capacity of the local streets to accommodate the traffic to be generated by the proposed use. In making this finding the Planning Board considered the projections of increased traffic volumes due to the proposed development, and the impact of such increases on the levels of service on existing streets;

2. That the petitioner failed to prove that the public infrastructure to service the project specifically the streets were adequate to accommodate the “Project”; and

3. That the petitioner failed to prove that the location of the driveway openings in relation to traffic or to adjacent streets was adequate to accommodate the “Project”.

8. Holton Street, a public street of varying width with a maximum width of twenty-four feet, crosses from an industrial zone to a residential zone north of the Existing Parking Lot where it continues to Green Street. The portion of Holton Street in the vicinity of 21-25 Holton Street narrows to a width of seventeen to eighteen feet. There are no sidewalks in this narrower segment of Holton Street, and there are utility poles located on either side of the road. There is also a school bus stop in the vicinity of this narrower stretch of the road. This narrow segment of Holton Street has a lower accident rate than the state average of similar roadways.

9. Holton Street becomes Nashua Street shortly before it intersects with Green Street (the “Intersection”). Trial evidence indicates that there is current traffic congestion at the Intersection and that the Intersection has a high accident rate caused by angle collisions. [Note 7] Nashua Street has an increased grade of 7% as it approaches Green Street, the effect of which presents site distance issues at the Intersection. Currently the Intersection is a two-way stop, with stop signs controlling both the northbound and southbound traffic along Nashua Street; there are no stop signs currently controlling traffic traveling eastbound and westbound along Green Street. Plaintiff proposes to convert the Intersection into a four-way stop by adding stop signs, together with advance warning signage, to the eastbound and westbound lanes along Green Street.

10. Based on one computer model, the Eby Studies indicate a current level of service E at the Intersection, with a proposed increase to level of service F as a result of the Proposed Parking Lot. [Note 8] Eby also conducted field studies which indicated a current level of service at the Intersection of B/C and a proposed increase to level of service C. The field studies were consistent with a second model which Eby used.

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Both parties agree that the use of the Proposed Parking Lot was an as-of-right use in an IG zoning district at the time of the New Application. [Note 9] Plaintiff argues that with an as-of-right use, a planning board may not deny a site plan but can only approve it with conditions. Defendant argues that there are significant safety issues related to traffic, and that there are no conditions that can be added to a site plan approval for the Proposed Parking Lot that would make the additional parking lot use safe, making the situation intractable. [Note 10]

Section 12.4.7 of the Ordinance, governing Site Plan Review, provides that

[t]he Planning Board may issue its approval subject to the condition that the developer provide safeguards, limitations and/or improvements which may include, without limitation, the following: improvements in existing water and sewerage facilities; improvements in existing intersections or streets, including storm drainage, reconstruction of ways and/or streets, traffic controls and pedestrian walkways.

Section 12.6 of the Ordinance (Conditions) requires that the Planning Board approve site plan submissions after making findings that certain conditions have been met. In part, Section 12.6 requires the following findings:

1.) Adequacy of the capacity of local streets to accommodate the traffic to be generated by the proposed use. In making this finding, the Planning Board may consider projections of increased traffic volumes due to the proposed development, and the impact of such increases on the levels of service on existing streets.

. . . .

4.) Ability of public infrastructure to service the project, including the City’s water supply and distribution system, sewage collection and treatment facilities, fire protection, and streets. . . . . 7.) Convenience and safety of vehicular and pedestrian movement within the site, the location of driveway openings in relation to traffic or to adjacent streets and, when necessary, compliance with other regulations for the handicapped, minors and the elderly;

. . . .

With respect to uses that are as-of-right, case law makes clear that municipalities may require a site plan for approval, but that the board’s consideration of an application for site plan review is not discretionary. Rather, the board may only apply reasonable terms and conditions on the proposed use. Specifically, in Prudential Ins. Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282-83 (1986), the Appeals Court stated,

The question remains as to the role of the judge in reviewing a board’s decision denying approval of a site plan submitted in connection with a use allowed as of right. Such a review proceeds in accordance with the well-established principles governing judicial review under G. L. c. 40A, § 17. As the issue involves approval of a site plan for a use permitted as of right, the judge inquires whether . . . the public interest can be protected ‘to a degree consistent with the reasonable use of the site for the uses permitted . . .’ The judge was essentially to examine the proposal to see if the traffic problem was so intractable that it could admit of no reasonable solution. Short of independently finding that, he was not obligated to give deference to the board’s decision.

In the case at bar, Defendant does not allege that the Proposed Parking Lot does not comply with the general requirements of the Ordinance, or that the Existing Parking Lot is not operating safely (or that the Proposed Parking Lot would not be operating safely). The issue here is whether the Proposed Parking Lot, in light of the Prudential standard, complies with the conditions cited in Section 12 of the Ordinance relative to traffic requirements. The inquiry becomes whether the public interest of the City of Woburn (the “City”) can be protected to a degree consistent with the reasonable use of the Proposed Parking Lot for as-of-right parking lot purposes.

Both parties agree that current traffic problems along Holton Street and at the Intersection are existing conditions and are not caused by the Proposed Parking Lot. At trial, both Plaintiff and Defendant adduced the testimony of experts to speak to the safety issues involving traffic as a result of the Proposed Parking Lot. Defendant presents three separate objections to the Proposed Parking Lot, all based on traffic concerns. I shall examine each of these in turn.

Holton Street.

Holton Street is the public street which leads from the Proposed Parking Lot (and other industrial uses) through a residential area to the Intersection. Holton Street varies in width, ranging from twenty-four feet wide to seventeen or eighteen feet wide. Eby acknowledged the existence of the narrower section of Holton Street but argued that a narrow street tends to slow vehicle speeds. With respect to this narrower section, Eby indicated that it was possible for two cars to safely pass one another, or two trucks to pass as long as they slowed down and pulled slightly off the road, or passed single file (he showed a video at trial in this regard). Plaintiff notes that it did not cause the problems with the status of the road, that the City zoned the industrial and residential zones so they abut one another, and that the proposed traffic from the Proposed Parking Lot would not significantly exacerbate the existing traffic issues on Holton Street. Plaintiff also argues that the Proposed Parking Lot would not increase truck traffic along the narrow stretch of Holton Street and that the accident rate in the narrow stretch of Holton Street was below the state average.

Defendant’s expert, Pyke, testified that the narrow portion of Holton Street was a problem because of the narrow road, the utility poles on the sides of the road, the lack of sidewalks, and the location of a school bus stop nearby. As a result, she concluded that the narrow portion of Holton Street was unsafe. She agreed that cars and trucks could pass one another along the narrow section of the road by slowing down. Although she agreed that the crash statistics were low in that area, she concluded the increase in traffic caused by the Proposed Parking Lot could lead to more accidents. Pyke did not perform her own traffic studies, and none of Pyke’s testimony undermined Eby’s testimony that the narrow portion of Holton Street was not significantly affected by traffic from the Proposed Parking Lot. Pyke further admitted that, given the scale of the Proposed Parking Lot, it would be unrealistic to require Plaintiff to widen Horton Street.

The Intersection.

Defendant’s second traffic concern relates to the intersection of Nashua Street and Green Street. Eby acknowledged that the Intersection was problematic and was an area of high traffic volume and that the grade of Nashua Street increased toward the Intersection. Eby argued that although his original traffic model showed a level of service of E/F at the Intersection, his actual field study, which is more reliable, showed a level of service of B/C. Eby also pointed to the fact that Defendant did not perform its own traffic study and that Defendant’s focus was on the existing traffic problems at the Intersection, not those caused by the Proposed Parking Lot. He stated that traffic from the new parking lot use, which would not include truck traffic, would only increase by 4 percent. [Note 11] Eby testified that the Intersection will continue to have adequate capacity and function with increased traffic from the Proposed Parking Lot. Finally, he proposed a four-way stop sign and related signage at the Intersection to mitigate the traffic problems.

In response, Pyke argued that because of the grade of Nashua Street near the Intersection, the turning radius and site lines were inadequate. Pyke also confirmed the heavy traffic volume at the Intersection, as it presently existed. She acknowledged that the four-way stop signs would help, but not correct the problem. She did not, however, correlate these issues with traffic from the Proposed Parking Lot.

Bucci Way.

The third traffic concern involves the use of Bucci Way as ingress at the Existing Parking Lot. Both parties agree that, because of sight distances, utilizing Bucci Way as an egress was unsafe. As a result, Plaintiff has signs posted that indicate that Bucci Way is to be used only as an entrance. Eby testified that these signs were currently working for the Existing Parking Lot, and that there was no evidence to indicate that the traffic design for the Proposed Parking Lot would persuade drivers to ignore the exit signs within the Existing Parking Lot.

Pyke acknowledged that the existing entrances and exit for the Existing Parking Lot were operating safely (entrance on Holton Street and Bucci Way; exit only on Holton Street), and that such entrances/exit would also operate safely to serve the Proposed Parking Lot. Pyke indicated that within the Existing Parking Lot, the site design of the Proposed Parking Lot could encourage cars from the Proposed Parking Lot to use Bucci Way as an exit because it was the closest access. Such opinion, however, is purely speculative; moreover, Pyke testified that risk of use of Bucci Way as an exit was minimal and an acceptable public safety risk. [Note 12]

Conclusion.

As her conclusion, Pyke testified that the traffic problems associated with Holton Street, the Intersection, and Bucci Way were so intractable that there was no way to safely condition an approval for site plan review. However, none of the issues raised by Pyke persuade this court that the Proposed Parking Lot would present such an intractable problem, to which there is no mitigation. The Ordinance has created the general traffic problem to which Defendant now objects, in establishing contiguous residential and industrial zoning districts. The City zoning not only allows commercial parking lots on Plaintiff’s property, but also necessitated that Holton Street be used as a truck route through a residential zone. Moreover, the proposed new shuttle bus traffic would not use either the narrow portions of Holton Street or the Intersection. Even though both parties acknowledged that the narrow portion of Holton Street and the Intersection were existing problems, none of the trial evidence indicates that the Proposed Parking Lot would so exacerbate the problems that the situation was intractable. [Note 13] The proposal to add the four-way stop signs appeared, by testimony of both experts, to address adequately the traffic concerns at the Intersection.

As a result of the foregoing, I find that Defendant was beyond the scope of its authority in issuing the Denial. I remand this matter to Defendant to approve the New Application with such reasonable conditions that are consistent with this decision. Any reasonable condition(s) that Defendant imposes upon the New Application must relate directly to issues addressed in this decision; specifically, such conditions may only relate to Defendant’s traffic concerns about Holton Street, the Intersection, and the Bucci Way entrance to the Existing Parking Lot.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: June 23, 2010