In this case I must decide whether the admonishment NO PARKING, painted on pavement on a parcel of land containing a residence, constitutes a sign that is regulated by the zoning law of the City of Medford, and whether the paved area itself, as configured, violates the zoning ordinance by containing space for the parking of more than four vehicles.
This case is the latest (but not the last) in a line of Land Court cases brought by plaintiff William C. Snyder (Snyder) concerning the property at 90 Warren Street in Medford, Middlesex County, Massachusetts (Property) now owned by Bettye Ann Blatman as Trustee of Warren Street Realty Trust. For a more detailed procedural history of the many related cases, see Medford v. Korovillas, 18 LCR 354 (2010) (Misc. Case No. 08 MISC 385369) (Piper, J.) (decision). I incorporate that decision into this one.
By letter to the Building Commissioner dated February 17, 2009, Snyder, pursuant to G.L. c. 40A, § 7, made twenty-one different requests for enforcement of the Citys Zoning Ordinance, for findings, or for other action to be taken by the Building Commissioner. By letter dated March 12, 2009, the Building Commissioner replied, in relevant part:
I have reviewed your letter to me dated February 17, 2009. In response to your request for enforcement action, please be advised we have once again inspected the property at 90 Warren Street, and I have determined that the no parking sign is not in violation of the City of Medford Zoning Ordinance as it pertains to signage.
On April 9, 2009, Snyder filed with Medfords Zoning Board of Appeals (Board), whose members are defendants, his adminstrative appeal from the Building Commissioners action, citing violations of the following section of the Ordinance: 94-306, 94-148(f)(1), 94-191(b)(2), 94-191(b)(3), and 94-148(d)(21). The Board conducted a public hearing on May 26, 2009, and filed a decision, A-2009-10, with the City Clerk on June 15, 2009 that denied Snyders appeal (upholding the determination of the Building Commissioner). This case was filed by plaintiff Snyder on June 29, 2009 as an appeal of Decision A-2009-10, pursuant to G.L. c. 40A, § 17.
The Second Revised Complaint was accepted for filing as of October 8, 2009. The Second Revised Complaint contains the following prayers for relief:
1. That the Court find and rule that the Sign does not abate any structural parking area violations, in particular those which the Board cited in its earlier decision, A+F-2006-5;
2. that the Court find and rule that the Sign is prohibited by Article V of the Ordinance;
3. that the Court find and rule that the portion of the Parking Area that does not lie within the required front yard contains more than four parking spaces, including the two in the two-car garage;
4. that the Court find and rule that the decision by the Board declining to order enforcement of the portion of the Ordinance pertaining to the maximum number of parking spaces in an off-street parking area, and pertaining to signs, be annulled and reversed as being in excess of the authority of the Board;
5. that the Court remand this matter to the Board to direct the Building Inspector to order the removal of the Sign and to order abatement of the parking area violation;
6. for other such relief as the interests of justice require.
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On January 11, 2010, Snyder filed a motion for partial summary judgment, limiting the scope of his motion to the question whether he was entitled to an order directing removal of the lettering painted on the ground at the Property. On February 12, 2010, the municipal defendants filed a opposition to Snyders motion for partial summary judgment. On February 17, 2010, the defendant landowner (Korovillas, whom defendant later Blatman succeeded to, after the death of Korovillas) filed her opposition to Snyders motion for partial summary judgment, and a cross motion for summary judgment, that, taken together (1) challenges Snyders standing under G.L. c. 40A, § 17; (2) argues that principles of res judicata prevent Snyder from seeking enforcement relative to the configuration of parking spaces on locus; and (3) argues the Boards decision regarding the painted lettering should be upheld. I held a hearing on these motions but did not rule on them at that time.
The private defendant trustee owner (now Blatman) later moved to dismiss on the grounds of mootness, arguing that changed conditions on the ground, namely what she contended was the elimination of the painted No Parking words, took away the need for the court to decide this case. On November 16, 2010, I heard argument on the motion to dismiss, and directed that the following be entered on the courts docket for this case:
After Hearing, Court DENIED the Motion to Dismiss without Prejudice to Renewal Following Further Submissions, and Requested Further Briefing, Ruling that (1) Issue of Whether Painting on Pavement Is Regulated Under City Zoning Ordinance as a "Sign" Is Not Moot Because, Based on Record as Assembled, It Appears Painted Lettering Still Visible Despite Attempt to Cover Lettering with Paint; (2) Were Lettering Fully Removed, Court Would Agree With Defendant that Dismissal as to This Issue Would be Warranted Based on Mootness; (3) Denial Is to Be Without Prejudice to Renewing Motion Should Further Efforts Result in Full and Effective Removal of Painted Lettering; (4) Private Defendant to File and Serve by December 14, 2010, Supplemental Memorandum of Law on Preclusive Effect of Judgment in Medford v. Korovillas, 08 MISC 385369 [GHP], Which Issued During Pendency of this Case. If Municipal Parties Wish to File Their Own Supplemental Memorandum, They Are to Do So Within Same Time. Plaintiff to File and Serve Opposition, If Any, Within Thirty Days of Receipt of Supplemental Brief of Private Defendant. Court to Schedule Hearing Upon Receipt of First Filed Brief.
Blatman did not file a supplemental memorandum on the preclusive effect of the Enforcement Action. On February 9, 2011, Snyder filed a second motion for partial summary judgment, this time arguing that the off-street parking area at the Property provides a total of more than four parking spaces whereas the Ordinance limits the total to four spaces, covered or uncovered[.] Blatman filed an opposition and a cross motion for summary judgment on March 4, 2011. The municipal defendants did not file any briefs. On April 7, 2011, I heard argument on the cross motions, and made the following entry on the courts docket for this case:
By April 22, 2011, Parties May File Supplemental Legal Memoranda Addressing Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011), No Expansion of Summary Judgment Record Allowed. Based on Representation of Counsel for Private Defendant that he Expects to be Able to Commit, In Some Fashion, that Parking of Automobiles Will Not Take Place Inside Garage Structure, by April 15, 2011, Defendant to File and Serve a Proposed Form of a Stipulation to that Effect, Accompanied by Proposed Method to Put Such a Limitation on Parking in Effect. Plaintiff to Respond to Defendant's Filing by April 22, 2011. Based on Both Sets of Filings of Parties, Court to Rule as Still Necessary on Summary Judgment Motions, and May Proceed to Enter Judgment, or to Dismiss Case as Moot, or to Order Further Proceedings.
On April 21, 2011, Snyder filed his supplemental memorandum. On April 22, 2011, Snyder filed Snyders Response to Stipulation Proposed by Blatman. Blatman elected not to file a supplemental memorandum. No party has filed with the court a written stipulation regarding the parking area that is executed by all parties. I now decide the case.
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The following facts are supported by the record and appear without material dispute.
7. In her capacity as Trustee of Warren Street Realty Trust, Blatman is the owner of property located at and known as 90 Warren Street, Medford, Middlesex County, Massachusetts (Property).
8. The Property, which is a corner lot, is improved by a three-story residential structure and detached two-car garage. That portion of the Property which is a paved surface covers the southeast quadrant of the Property, 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.
9. On October 31, 2008, the Parking Area was striped to show four parking spaces, and the words No Parking were painted on the pavement outside the four demarcated parking spaces.
10. Snyder claims the painted words are visible from a public way.
11. Section 94-2 of the Medford Zoning Ordinance provides the following definition:
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[.]
12. Section 94-148 (f)(1) requires a detached single-family dwelling to maintain two off-street parking spaces per dwelling unit.
13. 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 spaces Blatman is permitted to have on 90 Warren Street is four spaces.
14. 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.
15. 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).
16. The required front yard at the locus is fifteen feet.
17. 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.
18. 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.
19. Section 94-304 of the Medford Zoning Ordinance defines a sign as any structure, display, logo, letter, character, icon, or device, visible from a public or private way, whose essential purpose and design is to convey either commercial or noncommercial messages by means of graphic presentation or alphabetic or pictorial symbols or representations. A flag, pennant, or insignia of any nation, state, or town is not considered a sign.
20. Section 94-304 of the Medford Zoning Ordinance defines a directional sign as any sign, containing no advertising, that is designed and erected for the purpose of providing direction and/or orientation for pedestrian or vehicular traffic.
21. There is no definition in Section 94-304 of the Medford Zoning Ordinance of an Official traffic sign, an official directional sign, official sign, official traffic and directional sign, nor any express provision detailing what makes a sign official.
22. There is, however, a definition of Traffic Signs Official found in the Traffic Rules and Regulations adopted by the City of Medford Traffic Commission:
Traffic Signs Official: All signs, marking, and devices, other than signals, consistent with these Rules and Regulations and which conform to the standards prescribed by the Department of Public Works, Commonwealth of Massachusetts, and placed and erected by authority of a public body or official having jurisdiction for the purposes of guiding, directing, warning or regulating traffic.
23. Section 94-310, titled Exempt signs specifically exempts from the permit requirements Official traffic and directional signs and Signs not visible from a public or private way.
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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.
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 moving and opposing papers, and the arguments presented at the hearings, I conclude that the uncontested facts and the governing law call for allowance of Blatmans cross motions for summary judgment.
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Under G. L. c. 40A, § 17, only persons aggrieved have standing to appeal a decision of a zoning board of appeals. If a plaintiffs legal or property rights will (or likely will) be infringed by a boards action, then he qualifies as a person aggrieved. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). Aggrievement requires a showing of more than minimal or slightly appreciable harm. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , (2011). While the term person aggrieved is not to be narrowly construed, the plaintiffs injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be special and different from the concerns of the rest of the community); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest). In addition, the injury claimed by the plaintiff also must be legitimately within the scope of the zoning laws. Marashlian, 421 Mass. at 722.
There is an initial presumption that an individual who, like Snyder, is entitled to notice of board hearings, is a person aggrieved, [Note 1] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-04 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of credible evidence, the evidence offered must provide specific factual support for each of the claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. Conjecture, personal opinion, and hypothesis are insufficient. Butler, supra, at 441.
Snyder claims he is aggrieved by the visual clutter and blight caused by the No Parking letterings, and by the increase in density caused by the Parking Areas allegedly excessive parking spaces. As a statutory party-in-interest, Snyder enjoys a presumption of aggrievement. The Defendants may challenge Snyders presumed standing by producing evidence that shows Snyder is not injured, or by persuading the Court that the claimed injury is de minimis or to an interest not protected by the zoning ordinance, so that Snyder presents no cognizable case. See Kenner, 459 Mass. at 121 (the plaintiff, claiming obstruction of his ocean view, had no standing because the claimed injury was only a de minimis impact, and the ordinance language does not suggest that the zoning bylaw was designed simply to protect individual homeowners' views of the ocean from their own property).
Snyder claims as injury that he can see Korovillas lettering from his property, causing visual clutter and blight and diminishing his property value, and asserts further that the provision of more than four parking spaces in the Korovillas parking area is in violation of parking provisions of Medfords zoning ordinance. He supports this claim by offering photographs taken from his property, showing Korovillas parking area with NO PARKING painted on the asphalt in one corner of what appears to be a small parking lot, with four spaces delineated by painted white lines on the asphalt. The photographs also show that on many occasions over a five year period, more than four vehicles, at times seven or more, were parked in Korovallis parking area, sometimes obstructing the sidewalk or parking on the front lawn.
Snyder presents the Medford zoning ordinance in relevant parts: § 94-301 - 314, controlling signs; § 94-191, controlling parking; and § 94-148, a table of use regulations and parking requirements. He correctly argues that, at least as a threshold matter, the challenged no parking lettering may constitute a sign under the definition in § 94-304, that § 94-306 limits signs allowed on residential properties to a list of sign types, and that lettering painted on a surface regulating parking on private residential property may not fall into any allowable category of sign. The Purpose section prefacing the signage regulations makes it clear that a principal purpose of them is aesthetic, using language such as preserve  natural, scenic, historic, cultural, and aesthetic qualities of life and neighborhoods, protect the visual quality of the city, [i]mprove the physical appearance of the city, and [r]educe visual clutter and blight. § 94-301(a). The inclusion of [p]rotect property values in the Purpose section suggests that, in the view of the Ordinance, the aesthetic impacts of signage can affect property values. § 94-301(a)(5). This language creates a protected interest in the aesthetic impact of the locus signage on Snyders property. [Note 2] Snyder has advanced sufficient facts to show that he has a plausible claim that the no parking lettering appears to be signage appropriate to a parking lot in another district, rather than something permitted in conjunction with a single family house. Snyders argument that this represents visual clutter and blight and diminishes his property value, is cognizable, as the injury he alleges is within the scope of the Medford zoning law and of a type that the law is designed to prevent.
One of the purposes of the City of Medfords off-street parking regulations is to protect the use of adjoining property from nuisance caused by the noise, fumes, and glare of headlights[.] § 94-191(a). Snyder has presented photographic evidence of a parking facility on the locus that in the past has accommodated not less than seven cars on a paved surface, with garage space for an additional two. He has provided diagrams and dimensioned site plans. The parking area, he argues, is in violation of § 94-191(b)(2), limiting the parking capacity of a property in a residential district to 200 percent of the minimum capacity; here, the minimum is two spaces and the maximum therefore is four. Snyder, as an across-the-street neighbor, enjoys a rebuttable presumption of standing. He has identified a plausible claim of violation of an interest protected by the Ordinance.
Snyder has not shown, with specificity, how that plausible violation results in a particularized injury to him and his property, but, given his presumptive status as a plaintiff, at summary judgment it falls to the defendants to show that Snyder suffers no such particularized injury. This the defendants have failed to do, given the lack of evidence on this question put by them into the summary judgment record. It is the obligation of the parties moving for summary judgment on grounds of a lack of aggrievement to put in the evidence supporting their contention. The defendants have not proved that the contested pavement markings and view of the parking area are not, despite Snyders assertions, visible from his home. The defendants have not shown a lack of diminution in the value of Snyders property. They have not refuted, with competent evidence, his assertion that the challenged conditions relating to parking at 90 Warren Street produce a negative impact, aesthetic and otherwise, on Snyders use and enjoyment of his land. The lack of any such contradicting evidence from the defendants leaves Snyder with his presumptive standing intact for the purposes of this current case. Tested at summary judgment, [Note 3] the defendants have failed to put in contest Snyders presumptive standing in this case, and dismissal, or entry of summary judgement against Snyder, on grounds of lack of standing would not be appropriate.
THE SIGN PROVISIONS OF THE ORDINANCE
In considering whether or not the painted words on the pavement at 90 Warren Street constitute an impermissible sign as a matter of the local zoning law, it is my task to determine, as a legal matter, the meaning of the governing provisions 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.
We interpret a statute according to the intent of the Legislature, Commissioner of Correction v. Superior Court Dept 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. OSullivan 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 Dept, 455 Mass. 783 , 789 (2010), quoting Rambert v. Commonwealth, 389 Mass. 771 , 773 (1983). Norfolk & Dedham Mutl Fire Ins. Co. v. Morrison, 456 Mass. 463 , 468 (2010).
A local bylaw or ordinance is to be construed in accordance with ordinary principles of statutory construction, with some measure of deference given to the boards interpretation. APT Asset Mgt. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 139 (2000) further appellate review denied 432 Mass. 1111 (2000). (in circumstances of ambiguity in bylaw, reviewing court will give deference to local board's interpretation). See also Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997). (A reasonable interpretation of its own zoning by-law by a local board, such as a board of appeals, is entitled to deference.).
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 courts] 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 statutes 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.
Here the language of the ordinance is not a model of clarity. There are plausible interpretations supportive of both sides readings. When coupled with the rest of the Ordinance and the Traffic Rules and Regulations, however, the Boards interpretation is the better reading, leading me to sustain the result the Board reached, that the painted admonishment No Parking on the pavement is not the type of sign that the City of Medford regulates as a zoning matter.
The Ordinance contains an exception for Official traffic and directional signs. Snyder reads this exception to apply to official traffic signs, and official directional signs, while the Board reads this language as two separate types of signs, official traffic signs and a class of nonofficial directional signs. The existence of a separate class of directional signs is supported by the Traffic Rules and Regulations that define Traffic Signs Official as including signs intended for directing traffic. Viewed in context of the overall regulatory scheme, the Ordinances signage provisions are better read as drawing the distinction adopted by the Board, a view more consonant with the plain language and the level of regulation the City evidently feels is warranted. The Boards construction of its Ordinance, something to which a court must afford a reasonable margin of deference, is not overly strained. The Boards interpretation is certainly a product of a fair reading of the relevant provisions, leading to a reasonable construction: nonofficial directional signs are exempt from the permitting requirement.
The Board says that private real estate owners may employ directional signs on their property without the requirement of a permit from the City, and that there has been a history of allowing such directional signs without required permitting. The Board considers this history to fall squarely within the limits of the Ordinance. The Board takes the position that the no parking legend painted on the asphalt qualifies as a directional sign. In adopting this view, the Board considers those two painted words a sign, but one falling within the ambit of direction, and thus exempt. That, too, is a fair conclusion, based on the words used in the Ordinance. The words used here, No Parking, can fit comfortably within the ordinary and accepted meaning of direction. The dictionary definition of the verb to direct includes: To manage or conduct the affairs of; regulate. ... To have or take charge of; control. ... To give commands or directions.... The American Heritage College Dictionary, fourth ed.
It would be an awkward construction of the Ordinances language that would permit, for example, a sign that pointed vehicles in a particular route or towards a particular destination--surely a directional sign-- but would outlaw a second sign, identical in appearance, based only on the signs content, for example permitting or prohibiting parking in a given location on the lot. Thus, the Board rationally refused to say that the Ordinance would allow painted words on the pavement directing vehicles to maneuver into parking locations elsewhere on the lot, but would outlaw, in the very same location, painted words like Park Only in Designated Parking Spaces. The Boards rejection of such a nuanced--even unworkable--distinction is entirely reasonable.
The Boards construction of the local ordinance also minimizes the risk that conventional, commonplace signage often found at residential properties would run afoul of the Ordinance. Residential properties exhibit signs announcing the street number and name of a houses occupants, forbidding or welcoming the leaving of packages, identifying the correct entryway to use when visiting, warning of dangerous pets, and so many other variations of ordinary residential signs, all providing direction to tenants, guests, and other visitors. The Boards logic is that these, though signs, cannot fairly be considered to have been subjected by the City to regulation as a matter of zoning, given the language of the Ordinance. The Boards view, that these conventional types of signs used on residential property to order and control what happens there appropriately may fall into the Ordinances category of unregulated directional signs, is a more than fair reading of the local law the Board is authorized to interpret. The Boards interpretation, that the painted No Parking words constitute a proper directional sign, even though placed on residential property by its private owner, is entitled to deference from the court, and will be sustained.
In the related case Medford v. Korovillas, an enforcement action brought by the municipality against the then owner of 90 Warren Street, the court made a ruling as to the meaning of the parking requirements now under consideration in the pending case. Snyder was not a party to the enforcement case. [Note 4] The court need not answer the question whether its rulings of law regarding the meaning of the Ordinance in Korovillas are, in the pending case, binding on the court as matter of law, based on the prior adjudication, because (1) the court would reach the same conclusion in this case, and (2) all parties appear to be willing to stipulate to the same result.
In Korovillas, I issued a permanent injunction against the parking of more than four cars in the Locus parking area, and against parking of any vehicles in the required front yard. There is an area of overlap in which part of that front yard falls within the pavement of the parking area. Defendant Blatmans predecessor in interest, Victoria Korovillas, as Defendant in that case, was admonished that further remedies might be required if a need arose. I noted that the bylaw regulates only legal parking spaces, not parts of the property that are not legal parking areas but in which a vehicle might be placed, and partly for that reason did not order that any buffer strip be installed on the Locus. [Note 5] I noted that a buffer strip is required in certain circumstances to shield a parking area from view of surrounding residential properties, when the parking area contains more than four spaces or is in a front yard. The Locus is located in a zone in which neither of those conditions are allowed, and therefore measures that mitigate those conditions are not required. The presence on the site of areas in which one might be able to park a car, but which are not legal parking spaces, neither helps a property owner meet zoning requirements nor counts against an owner whose parking is limited by zoning.
However, it is implicit in this analysis that the only parking on the site will be legal parking. Put another way, a buffer strip is not required because a buffer strip mitigates parking close to a public way or in excess of four cars, and parking close to a public way or in excess of four cars must not occur on the Locus. [Note 6] It remains the responsibility of the property owner to keep the property in compliance with the local zoning law, and if the owner fails to do so it is the responsibility of the city to take appropriate actions to enforce its ordinances.
At the summary judgment hearing, the parties appeared closer than their initial pleaded positions would have suggested. There was no material disagreement that the focus of the zoning law provisions raised by Snyder in his appeal are on the layout of the parking area, rather than on the parking that takes place on the property. Snyders principal argument is that it is unlawful to maintain on this land in this district a parking area for more than four vehicles, twice the required minimum number of vehicle parking spaces to be provided under applicable zoning. Because the paved area accessible to vehicles for parking, added to the possible parking within the detached garage on the Locus, exceed this maximum, and could hold more than four vehicles, Snyder says the parcel at 90 Warren Street violates the parking area regulations of the Ordinance.
Counsel for the private landowner, however, represented that there is not now any parking taking place within the garage, and no current intention to do so. Counsel signaled his clients willingness to limit parking on the Locus to just the four designated outdoor spaces, and to commit not to park within the garage. With such a concession in place, and assuming it is followed, there would be, as matter of law, no basis on which to disturb the Boards decision declining any further action concerning the parking area.
This is so because what the Ordinance regulates here is not the activity of parking, but rather having a parking area with more than the maximum number of spaces. Commitment by the landowner to designate as the parking area no more than four outdoor spaces and to forego parking in the garage, takes away the occasion for the City to act, and for the Board to direct the zoning enforcement officers of the City to do so.
To the extent that Snyder argues that the mere presence on the Locus of some paved area in which a fifth vehicle might possibly be able to stand or park constitutes a violation of the Ordinances parking area layout requirements, that is, as matter of law, not the case. As Snyder himself recognized at the hearing, it is commonplace to have long driveways, and other paved areas, on residential lots, some leading to rear garages or other designated parking areas. Those driveways may well, in the aggregate with garage and designated outdoor spaces, accommodate the parking, stacked or otherwise, of more cars than the maximum allowed by the Ordinance to be in a parking area. The Ordinance does not contemplate, and certainly does not require, that every flat surface on a residential lot which might be used to park a vehicle be rendered physically unavailable for parking should that flat surface make possible the parking of a vehicle beyond the maximum number the parking area is required to provide. The Ordinance does not say that must be done, and logic and common sense lead to the same result. The Ordinance, in dealing with the rules for parking areas, does not restrict a lots hard-surfaced area to just that which will handle the maximum number of vehicle spaces allowed. No such dimensional limit is in the Ordinances text. The words that are there in the Ordinance do not require that interpretation. To the extent the Boards decision rejected this extremist view of the parking area zoning rules, the Board acted in keeping with the Ordinance, and not in violation of it.
More practically, the goal the Ordinance set out to achieve, the limitation on the number of parking spaces actually to be present on a lot, is in this case capable of being achieved by direction to the landowner that she may not park, or suffer others to park, more than four vehicles in any of the paved areas on her land, and none in the garage. It appears that that limitation is sufficiently well acknowledged by the current owner of 90 Warren Street, so that the Boards declination to take any additional action is legally proper. [Note 7]
For the reasons given, the Defendants motions for summary judgment are GRANTED. Plaintiffs motions for summary judgment are DENIED. Judgment is to enter upholding the challenged decision of the Board.
Gordon H. Piper
Dated: October 17, 2011.
[Note 1] The rebuttable presumption of standing is provided to parties in interest, which include the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list. See G. L. c. 40A, § 11.
[Note 2] See E.g. Marhefka v. Zoning Bd. of Appeals, 79 Mass. App. Ct. 515 , 519 (2011) (Such a protected interest can arise from the by-law's express language.); Monks v. Zoning Bd. of Appeals, 37 Mass. App. Ct. 685 , 688 (1994) (holding that a plaintiff had standing to appeal granting of a permit on grounds that a cellular tower would damage the visual character of the neighborhood and reduce their property value, when the by-law protected the visual character or quality of the neighborhood).
[Note 3] In setting out the facts from the documents, affidavits and depositions in the record, we resolve any conflicts in the summary judgment materials, and we make all logically permissible inferences, in the plaintiff's favor. Willitts v. Roman Catholic Archbishop, 411 Mass. 202 , 203 (Mass. 1991); citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16 , 17 (1983).
[Note 4] The enforcement action was commenced, however, in response to separate litigation Snyder earlier brought to compel enforcement of the Ordinance, as to his concerns about the parking and parking area at 90 Warren Street.
[Note 5] This issue is discussed in more depth in Korovillas, 18 LCR at 357. The analysis in Korovillas is incorporated by reference.
[Note 6] See Medford ordinances:
Table 94-148(f)(1) (minimum parking requirements)
Section 94-191(b)(2) (parking spaces not to exceed 200% of minimum)
Section 94-191(b)(3) (no parking permitted in front yard)
Section 94-142 and 94-191(b)(3) (buffer zone requirements)
[Note 7] Snyder has submitted photographs showing that vehicles have at times been parked within the front yard area after I issued the injunction, despite the courts order and the presence of the no parking lettering. Indeed, the photographs show vehicles parked directly over the lettering. However, the evidence in the record of violations after my August 10, 2010 decision is limited to only three photographs. Without more, three isolated parking violations do not require the court to disturb the considered decision of the local board hearing an administrative appeal. The injunction framed in the enforcement action remains in effect, and, while it does, provides assurance to the City and the Board of the future limited parking to take place on the Locus.