MISC 08-385369

July 12, 2010


Piper, J.


Related Cases:

In this case, the City of Medford (“City”) seeks to enforce against defendant Victoria Korovillas (“Korovillas”) certain provisions of the Zoning Ordinances of the City of Medford (“Ordinance”) that would, according to the City, require Korovillas to erect a “buffer strip” on her property at 90 Warren Street, Medford, Middlesex County, Massachusetts (“Locus”) to prevent the parking of more than four vehicles in the off-street parking area on the Locus. The sole issue of law for decision is whether Section 94-142 of the Ordinance requires a buffer strip every time there is adequate physical space for more than four vehicles, or only when the parking area provides more than four legal parking spaces. As the instant case is one of several related cases, a review of the procedural history of this dispute follows.

On August 18, 2005, the owner and occupant of property at 87 Warren Street in Medford, William C. Snyder (“Snyder”), requested that the Building Commissioner (“Building Commissioner”) enforce against Korovillas certain provisions of the Ordinance having to do with the paved area on the Locus that was used for parking. Following what Snyder determined to be insufficient action from the Building Commissioner, he appealed to the Zoning Board of Appeals of the City of Medford (“Board”) pursuant to G. L. c. 40A, § 8 (and Sec. 94-36(a) of the Ordinance). On or about August 20, 2005, Snyder made an unrelated complaint to the Building Commissioner about the construction of a three-story deck on the back of the house at 90 Warren Street. Snyder similarly sought review of the Building Commissioner’s action by the Board regarding the deck.

On March 1, 2006, the Board held a public hearing at which both of Snyder’s appeals were addressed. On March 21, 2006, the Board filed with the City Clerk its Decision Of the Board No. A&F-2006-5 (“A&F-2006-5”), which addressed, among other things not here relevant, the Building Commissioner’s treatment of the parking, and the deck. As to the deck, the Board declined to direct the Building Commissioner to do anything further, and Snyder brought an appeal in the Land Court, pursuant to G. L. c. 40A, § 17, docketed as Land Court Miscellaneous Case No. 06 MISC 321411 (“First Deck Action”). As to the parking, Decision A&F-2006-5 states:

In the opinion of the Board, the remaining matters requiring additional enforcement action on the part of the building department at these premises are:

More than four off-street parking spaces.
Ordinance Table 94-148(f)(1)
Ordinance Sections 94-191(b)(2)

Parking in required front yard.
Ordinance Section 94-191(b)(3)

Requirement for parking lot buffer zone.
Ordinance Section 94-142 and 94-191(b)(3).

The Board refers these matter to the building department for such remedial action as may be necessary to enforce compliance with the provisions of the Ordinance cited herein above.

On March 26, 2006, Snyder requested action by the Building Commissioner pursuant to the Board’s decision A&F-2006-5. Again finding the action of the Building Commissioner unsatisfactory, Snyder filed in this court Land Court Miscellaneous Case No. 06 MISC 330102, Snyder v. Mochi (“Mandamus Action”), seeking a writ of mandamus pursuant to G. L. c. 249, § 5.

On January 16, 2007, following the initial case management conference in the Mandamus Action, the court ordered the case consolidated with the prior-filed First Deck Action. Notice of the consolidation order was sent to Stephen Hrones, Esq., the attorney appearing for Korovillas in the First Deck Action. On March 29, 2007, Snyder’s motion for summary judgment in the First Deck Action came on for hearing; Snyder and the Medford City Solicitor appeared. Counsel for Korovillas filed no objection or response to Snyder’s motion for summary judgment, and did not appear for the hearing. The court (Piper, J.), from the bench following argument allowed Snyder’s motion and vacated the Order of Consolidation dated January 16, 2007, so that the First Deck Action could proceed to judgment.

No longer consolidated, the two cases proceeded on divergent paths, and the subsequent history of the First Deck Action is not relevant here. Snyder’s Amended Motion for Summary Judgment in the Mandamus Action came on for hearing on April 10, 2008. Snyder and the City Solicitor appeared and argued. Attorney John Connolly, now representing Korovillas, was present, and indicated he did not intend to intervene, and withdrew his appearance, filed January 14, 2008, as being filed in error.

Following hearing, the court (Piper, J.) granted Snyder’s motion in part. [Note 1] On May 2, 2008, judgment entered in the Mandamus Action, which ordered, in relevant part, that:

not later than twenty-one days after the entry of this Judgment, the defendant Building Commissioner issue, and thereafter enforce as necessary, a written order to the owner of the Property to construct promptly (and in no event later than forty-five days after issuance of the defendant’s order), and thereafter maintain in place, a buffer strip along the boundary between the off-street parking area on the Property (including the access driveway) and the entire required front yard (excluding that portion of it which is currently included within the limits of the access driveway), as those terms are defined in the Ordinance. The buffer strip, as ordered by the defendant to be constructed and maintained by the owner of the Property, shall be constructed in a manner and dimensions, and of materials, which are compliant with the Ordinance and sufficient to prevent the use of the front yard for off-street parking in violation of the Ordinance, and to shield the view of the remaining parking area on the Property, to the extent required by the Ordinance.

Soon after, on July 9, 2008, Snyder filed a complaint for civil contempt in the Mandamus Action, alleging that Building Commissioner had failed to comply with the judgment of May 2, 2008 within the time set forth therein. At the initial hearing on the complaint for contempt, held September 4, 2008, the defendant Building Commissioner was ordered to file, in the Land Court, a separate complaint for civil enforcement of the Ordinance against Korovillas; the court would take no action on the contempt complaint pending the filing of the enforcement action.

On October 2, 2008, the City of Medford commenced the case at bar, Land Court Miscellaneous Case No. 08 MISC 385369 (“Enforcement Action”) against Korovillas, and applied for a preliminary injunction that would require Korovillas to erect a “buffer strip” in accordance with the May 2, 2008 judgment. After hearing on October 21, 2008, the application was denied without prejudice, the court instead instructing the parties to collaborate on the location, design, and installation of a temporary fence or other interim buffer strip, and allowing that plaintiff to renew its application for injunction if there were to be recurring parking on the Locus by more vehicles that allowed by the Ordinance.

Meanwhile, on October 7, 2008, Snyder moved to intervene in this case, pursuant to Mass. R. Civ. P. 24. After hearing on November 13, 2008, that motion was denied. Snyder did not appeal the court’s denial of his motion to intervene. Following two motions to enlarge the time within which to file their motion for summary judgment, the parties did file, on September 8, 2009, cross-motions for summary judgment, which came on for argument on November 3, 2009. After argument, the record was kept open so that parties could file an agreed-upon copy of the entire Zoning Ordinance. The court received the supplementary materials on November 9, 2009, and took under advisement [Note 2] the cross-motions on which I now rule.

* * * * *

The following facts are supported by the record and appear without material dispute.

1. In her capacity as Trustee of Warren Street Realty Trust, Korovillas is the owner of property located at and known as 90 Warren Street, Medford, Middlesex County, Massachusetts.

2. The Locus, which is a corner lot, is improved by a three-story residential structure and detached two-car garage. That portion of the Locus which is a paved surface that covers the southeast quadrant of the Locus, from the southern property bound, north to the location of the porch on the south side of the house, and from the eastern property bound (along Warren Street), westerly to the entrance of the two-car garage is the “Parking Area.”

3. On October 31, 2008, the Parking Area was striped to show four parking spaces, and the words “No Parking” were painted outside the four demarcated parking spaces. [Note 3]

4. Section 94-2 of the Medford Zoning Ordinance provides the following applicable definitions:

Buffer strip means either a continuous landscaped area at least five feet in width containing a screen of plantings which are not less than three feet in width, nor more than three feet on centers and which, so as to maintain a dense yearround [sic] screen, contains plantings at least 50 percent of which are evergreens or a wall or fence of uniform appearance all modules of which are at least 50 percent opaque when viewed in elevation.

Parking garage or parking area, residential means a building, structure, lot or part of a lot designed or used for shelter or storage... of noncommercial motor vehicles... used by the occupants or users of a lot devoted to a use or uses permitted in a residential district[.]

5. Section 94-142 of the Zoning Ordinance is titled “Buffer Provisions.” The relevant portions read: “[t]here shall be placed and maintained a buffer strip to a height... [n]ot less than three and one-half feet above the surface of a parking area, in any district between the edge of any parking area and the adjacent lot or street line... [w]here the parking area contains more than four spaces; and [w]here said lot or street line is in common with or opposite a lot in a residential district.”

6. Section 94-148 (f)(1) requires a detached single-family dwelling to maintain two off-street parking spaces per dwelling unit.

7. Section 94-191 (b)(2) provides, “In residential districts, the number of off-street parking spaces shall not exceed 200 percent of the minimum requirements.” Hence, the maximum amount of off-street parking Korovillas is permitted to maintain on 90 Warren Street is four spaces.

8. Section 94-191 (3) provides: “Parking spaces not enclosed in a structure may be provided anywhere on the lot except in an inner court, except that no parking may be provided within the required front yards in SF-1, SF-2, and GR district.”

9. Section 94-191 (3) goes on to say, “When parking is provided in a front yard, buffer strips at least three feet in width and planted with dense planting material or an opaque fence of uniform appearance, should be provided on the side(s) of the parking area visible from the abutting street(s) and lot(s).”

10. The “required front yard” at the locus is fifteen feet.

11. Section 94-191 (b)(5)(a) states: “The minimum parking space will include a rectangular area not less than nine feet in width and 19 feet in length for all angle parking, or 22 feet in length for parallel parking and eight feet of clear height.”

12. The intent of the Parking and Loading Division of the Zoning Ordinance is, as spelled out in Section 94-191 (a): “to reduce congestion in the streets and contribute to traffic safety by assuring adequate places for the standing and storing off the street of motor vehicles associated with any use of land and to insure that any use of the land involving the arrival, departure, storage, or entry upon the land of motor vehicles be so designed and operated as to reduce hazards to pedestrians upon the public sidewalks and to protect the use of adjoining property from nuisance caused by the noise, fumes, and glare of headlights which may result from the operation and parking of motor vehicles off the street.”

13. The City has offered a plan titled “Plot Plan of Land, 90 Warren Street, Medford, MA, Prepared by Medford Engineering and Survey” dated September 30, 2008, which purports to show five parking spaces laid out in the Korovillas Parking Area.

* * * * *

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

I now decides the pending motions. After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, I conclude that the uncontested facts and the governing law call for allowance of Korovillas’s motion for summary judgment, and denial of the motion of the plaintiff City of Medford.

* * * * *

There are two separate instances in which the Ordinance might require a buffer strip at 90 Warren Street: (1) where a parking area contains more than four spaces, see Section 94-142, and (2) where parking is provided in the front yard, see Section 94-191 (3).

The City of Medford argues that the Parking Area is “capable of containing” more than four cars, and as a result, Korovillas is required to install a buffer strip. Korovillas argues that the Ordinance requires a buffer strip only if the Parking Area contains more than four parking spaces in fact. Both parties agree that there are only four parking spaces demarcated on the ground, and nonetheless, were one to ignore the striping, the Parking Area is physically capable of occupation by more than four vehicles, especially if vehicles were to park in the fifteen-foot front yard area. It is my task to determine, as a legal matter, the meaning of this provision of the Ordinance, legislation duly enacted by the City of Medford; I do so using the principles of law which govern the interpretation of legislation.

In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law, and is to be determined by ordinary principles of statutory construction. Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960). Decisional law guides me in this endeavor.

“‘We interpret a statute according to the intent of the Legislature,’ Commissioner of Correction v. Superior Court Dep’t of the Trial Court for the County of Worcester, 446 Mass. 123 , 124 (2006), looking first to the statutory language because it ‘is the principal source of insight into legislative purpose.’ O’Sullivan v. Secretary of Human Servs., 402 Mass. 190 , 194 (1988), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701 , 704 (1984). We will not expand or limit the meaning of a statute unless such is required by the ‘object and plain meaning’ of the statute. Canton v. Commissioner of the Mass. Highway Dep’t, 455 Mass. 783 , 789 (2010), quoting Rambert v. Commonwealth, 389 Mass. 771 .773 (1983).” Norfolk & Dedham Mut’l Fire Ins. Co. v. Morrison, slip op. April 8, 2010, SJC-10513.

Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning “without regard to . . . [the court’s] own conceptions of expediency.” Kurz, supra, at 112, quoting from Commonwealth v. S.S. Kresge Co., 267 Mass. 145 , 148 (1929). “We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.” Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). “When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.” Id.

The area we have been calling the “Parking Area” fits the definition of “parking garage or parking area, residential” in Section 94-2 of the Ordinance. The Parking Area is “ part of a lot designed or used” for “storage” of “noncommercial motor vehicles.” The Buffer Provisions of Section 94-142 operate where “the parking area contains more than four spaces[.]” The City argues that the Parking Area “contains” more than four spaces because it is capable of providing parking for more than four vehicles.

The City argues that a “parking space” is defined as “a rectangular area of not less than nine feet in width and 19 feet in length.” Pl.’s Br. Summ. J. 5 n. 3. Thus, argues the City, the number of parking spaces in a parking area should be calculated by the number of such rectangles it is possible to layout in the parking area.

When pressed, however, the City reveals that it is actually more complicated than that. For example, the two plot plans in the record depict five parking spaces, but do not include parking in the front yard area, which would clearly accommodate several “rectangular area[s] of not less than nine feet in width and 19 feet in length.” Likewise, the parking space shown as “1” on the plot plan is “right up against the property line for Lot 54.” See Pl.’s Br. Summ. J. 7 (quoting from deposition of Building Commissioner). The Ordinance requires more than three feet between a parking space and the side lot line. The City admits, as it must, that parking space number one is not a “legal space.” Pl.’s Br. Summ. J. 7. The only inference I can draw from this is that the Ordinance requires a buffer strip only when the number of legal spaces exceeds four.

The City demonstrates that parking space 1 can be brought into compliance by shifting parking spaces 1, 2, and 3, three feet away from Lot 54. See Pl.’s Br. Summ. J. 7; Koutalidis Aff. ¶ 3 (stating adequate space available to shift spaces northward three feet). This tendered solution suffers from the same logical flaw it seeks to remedy in the first place: Korovillas has no right to park five vehicles anywhere, so, without regard to where in the Parking Area the spaces are laid out, as soon as more than four vehicles are parked there, the fifth parking space is not a legal spot. There is no reason why a parking space, unlawful because it lies less than three feet away from a side lot line is included in the tally, but a parking space that is unlawful because it exceeds the maximum number of parking spaces is not. The only way to harmonize the Ordinance is a reading of “parking area” that only credits a parking space, for counting purposes, if it is lawful.

This makes sense when one looks at the purpose of the parking requirements as laid out in Section 94-191 (a). They are, first and foremost, requirements about minimum parking spaces to be provided. Construing the Ordinance to credit only legal parking spaces furthers the City’s stated goals of providing adequate parking. It would not do for a sixteen-bed hospital, for example, to attempt to comply with the parking requirements in the Table of Use Regulations, Section 94-148 (d), which requires one parking space per four beds, by offering a parking lot with four parking spaces, only three of which were legal. The buffer strip provisions also support this interpretation. In the case of a twenty-bed hospital, where more than four parking spaces are required, the buffer strip provisions come into effect as mitigation measures; the required vegetated buffer strip shields the parking area from the view of the surrounding residential properties.

I am convinced that a buffer strip is required only when there are more than four actual, lawful parking spaces – not potential spaces. Korovillas has no right to park more than four vehicles in her parking area, in fact, the Ordinance forbids her from so doing. It is only by acting unlawfully that more than four vehicles come to be parked in the parking area.

It is the same analysis with respect to parking in the front yard area. Korovillas is not permitted to park vehicles in the front yard area of her property. Only if she were so permitted would she need to install a buffer strip to shield the Parking Area from the view of the neighborhood, according to the provisions of Section 94-191 (3).

The buffer strip provisions of the Ordinance in Section 94-142, and Section 94-191 (3), are not remedial provisions designed to prevent parking in the prohibited areas, or limit the number of vehicles on a property. As described above, they are mitigation measures to shield from view lawful parking. The City of Medford has chosen, as the mechanism for enforcing the parking provisions of its Ordinance, inspections and a zoning enforcement officer empowered to issue citations and fines. The Ordinance does not require a buffer strip to shield the view of a parking area with four or fewer spaces, nor to prevent parking in the front yard area. Thus, to require Korovillas to install a buffer strip would be to order something not required by the Ordinance, something I am not convinced I have the authority to do, at least in the absence of blatant violation of the maximum vehicle parking regulations of the Ordinance, and then, only in the context of an effort by the court to aid the City in enforcing the Ordinance thus violated.

The May 2008 Judgment in the Mandamus Action ordered the construction of a buffer strip to remedy an ongoing and persistent violation of the Ordinance, which the Building Commissioner had been unable or unwilling to remedy. Now, however, the City acknowledges that its inspectors have been unable, despite regular observation, to demonstrate a level of recurring parking violation at the Locus since the judgment entered in the Mandamus Case. Moreover, I am mindful of the tortured procedural posture of the case. Korovillas was not a party to the Mandamus Action and so is not directly and personally bound by the May 2008 judgment in that litigation. Korovillas is weighing in on the meaning and proper construction of the language of the Ordinance for the first time in the case at bar, and is entitled to the court’s independent judgment in the case now before it.

For all of these reasons, the Judgment that will issue in this case will include language of injunction permanently enjoining parking of more than four vehicles in the parking area, and enjoining any vehicle parking in the required front yard area, but will not require the construction of a buffer strip. To the extent that Korovillas is a party defendant in this Enforcement Action, the terms of the judgment will be enforceable against Korovillas in a contempt proceeding brought by the City as the prevailing party. An order directing the construction of a buffer strip, which I determine goes beyond what is required in the first instance by the parking facility provisions of the Ordinance, is not to be ordered now, but may be available to the court as an equitable remedy to redress future unlawful parking, should the City so request and demonstrate a need.

Judgment accordingly.

Gordon H. Piper


Dated: July 12, 2010.


[Note 1] The remaining issues in the motion were decided against the moving party and are not relevant here.

[Note 2] On February 8, 2010, while the case was under advisement, Snyder filed a second motion to intervene, which, treating it as a motion to reconsider the court’s November 13, 2008 denial of Snyder’s first motion to intervene, the court denied.

[Note 3] The painted admonishment “No Parking,” is the subject of another lawsuit before this court, Land Court Miscellaneous Case No. 09 MISC 404400(GHP), Snyder v. Medford Zoning Bd. of Appeals.