This action involves an appeal by Plaintiff The Greater Boston Chinese Cultural Association, Inc. (Plaintiff) of a decision dated December 3, 2012 (the 2012 Decision) and a remand decision dated December 2, 2013 (the 2013 Decision) issued by Defendants Members of the City of Newton Board of Aldermen (the Board), which granted Defendant Young Investments, LLC (Young) site plan approval and several special permits for Youngs planned construction (the Project) of a three-story mixed-use development (the Development) on property owned by Young located at 429 Cherry Street, West Newton, Massachusetts (Locus).
On December 20, 2012, Plaintiff filed its unverified Complaint, by which it (a) appealed, pursuant to G. L. c. 40A, § 17, the 2012 Decision (Count 1"), and (b) sought, pursuant to G. L. c. 231A, §§ 1-9, a declaratory judgment finding that Plaintiff has a prescriptive easement to maintain a drain pipe (the Drain Pipe) over Locus (Count 2"). [Note 1] On January 18, 2013, Young filed its Answer to the Complaint.
On January 29, 2013, Young filed an assented-to motion to remand this case to the Board for further proceedings, which motion was allowed on January 30, 2013. [Note 2] On December 2, 2013, the Board, reviewing this dispute on remand, issued the 2013 Decision, which superseded the 2012 Decision, and granted site plan approval and ten special permits for the Project. [Note 3]
On January 2, 2014, Plaintiff filed an Amended Complaint, by which it appealed, pursuant to G. L. c. 40A, § 17, the 2013 Decision. On January 16, 2014, Young filed its Answer to the Amended Complaint. On May 9, 2014, Plaintiff filed a Second Amended Complaint, which interposed a new objection to the 2013 Decision regarding the Projects side yard setbacks and the setback of the Projects below-ground parking.
On June 16, 2014, Plaintiff filed a Motion for Summary Judgment, together with a supporting memorandum of law, a statement of material facts, and an appendix of exhibits containing affidavits of Renne Lu (Lu) (member of Plaintiffs Board of Directors) and Donald R. Pinto, Jr. (Pinto) (Plaintiffs attorney). [Note 4] On the same day, Young filed a Motion for Partial [Note 5] Summary Judgment, together with a memorandum of law, a statement of material facts, and an appendix of exhibits containing an affidavit (the Lee Affidavit) of Young Lee (Lee) (managing member of Young). [Note 6] On July 23, 2014, Plaintiff and Young each filed their opposition each others motions; Plaintiff also filed a motion to strike portions of the Lee Affidavit. On August 1, 2014, Plaintiff and Young each filed their respective reply briefs on their motions. A hearing on the parties dispositive motions was held on September 3, 2014, and, at that time, the matter was taken under advisement.
Based upon the evidence in the summary judgment record, I find that the following material facts are not in dispute:
1. Locus is owned by Young [Note 7], and is located at 429 Cherry Street, West Newton, Massachusetts in the B1 Zoning District, as established by the Ordinance and depicted on the Citys zoning map entitled "Cityof Newton, Massachusetts, Amendments to Zoning Plans, adopted July 21, 1951, as amended from time to time". See Ord. § 30-4(b). Locus has an area of 13,617 square feet, and is improved by a vacant 1.5 story office building. Locus is located in close proximity to various neighborhood amenities (including parks, shops, restaurants, offices, and a police headquarters), as well as two Massachusetts Bay Transportation Authority (MBTA) bus routes (Nos. 553 and 554) and the West Newton MBTA commuter rail stop.
2. Plaintiff owns the property located at 437 Cherry Street, West Newton, Massachusetts (the GBCCA Property), which abuts Locus to the south and is also located in the B1 Zoning District. The GBCCA Property is 7,452 square feet in area, and is improved by a 2.5 story office building (the GBCCA Building) with a peak elevation of 93.47 feet (including below-grade structures), which serves as Plaintiffs headquarters. [Note 8] At the rear of the GBCCA Building is an attached addition (the Addition) [Note 9] used by Plaintiff for classrooms and storage. The majority of the GBCCA Building is set back approximately eleven feet from The GBCCA Propertys side yard boundary with Locus, while the Addition -- which extends farther north than the rest of the GBCCA Building -- is set back only 4.7 feet from said boundary.
3. The buildings at 56-66 Webster Street, which abut Locus to the North, have three stories with a peak elevation of 99.23 feet, including below-grade structures.
4. In November 2007, the Board adopted the Newton Comprehensive Plan (the Comprehensive Plan), which makes certain recommendations in anticipation of future population growth, with a goal of stemming the decline in rental housing in the City. The Comprehensive Plan identifies village centers as having a vital potential for compact redevelopment, including construction of new housing on underutilized lots, and encourages construction of compact, multifamily housing near to village centers and public transportation in order to strengthen the nodal character of mixed-use villages, to support a variety of uses, and to promote a lively pedestrian environment that is conducive to transit use. In particular, West Newton is identified in the Comprehensive Plan as a major center capable of receiving 500,000 to 1 million square feet of new housing units. The Comprehensive Plan also recommends that the City consider complementing minimum standards for parking with carefully designed limits on allowable parking spaces at limited and appropriate locations where public transportation enables such limits.
5. In February of 2012, Young and Community applied to the Board for site plan approval and several special permits to implement the Project, which proposed to raze the existing structure on Locus and to replace said building with the Development -- as then proposed, a three-story mixed use building containing nine residential units, 904 square feet of office space, and a seventeen-stall underground parking garage (the Garage). After receiving feedback from the Citys Department of Planning and Development with respect to the Project, Young and Community withdrew their application for approval of same.
6. On July 3, 2012, Young and Community filed with the Board a revised application for site plan approval and ten special permits to implement the Project -- which, as revised, increased the number of residential units in the Development to thirteen (three of which would be affordable housing units), increased the number of parking stalls in the Garage to eighteen, and added one at-grade handicap parking stall. As proposed, the Development would have a peak elevation of 35.6 feet above grade (total elevation of 92.0 feet, including below-grade structures) and an FAR of 1.47, and would be set back 5.6 feet from The GBCCA Property. [Note 10]
7. As proposed, two of the parking stalls in the Garage (located at the end of the parking rows) would be undersized. As proposed, the Garages parking stalls would be laid out ninety degrees to the driving aisle, which would be twenty-two feet wide. As proposed, the Garage would be accessed from Cherry Street via a twelve foot wide driveway -- the minimum allowed by the Ordinance to accommodate one-way traffic -- which would have an illuminated warning sign to alert drivers and pedestrians of oncoming traffic and a right-turn only sign on Cherry Street to alleviate traffic concerns. Young also proposed to contribute $3,500.00 for a new pedestrian walk signal at the intersection of Cherry Street and Washington Street.
8. As proposed, the Project would include building a 8.5 foot tall retaining wall on the north side of the Development (near the entrance of the garage), which would be located more than thirty feet from the buildings to the north at 55-65 Webster Street. The Project would also include building a retaining wall on the southern side of the Development that would extend three feet above ground level and would be topped with a six foot green screen fence (the Fence) to obscure the above-ground parking stall.
9. On December 3, 2012, after a public hearing, the Board voted to approve the Project, and issued the 2012 Decision, which granted site plan approval [Note 11] for the Project, as revised, and granted all requested special permits. [Note 12] In connection with Youngs request for site plan approval, the 2012 Decision found that the minimum side yard setback requirement for the Project imposed by the Ordinance was 4.7 feet.
10. On December 20, 2012, Plaintiff appealed the 2012 Decision to this court, alleging, inter alia, that the Board issued the 2012 Decision without sufficient evidence and that the Boards approval of the Project did not follow proper procedure, since the Project was changed after the close of the public hearing. On January 28, 2013, Young filed an assented-to motion to remand the matter to the ZBA to address Plaintiffs concerns with the 2012 Decision. By Order dated January 30, 2013, this court allowed said motion and remanded the matter to the Board.
11. While the matter was on remand to the Board, Young made several additional revisions to the Project related to the proposed drainage system for the Development. [Note 13] On December 2, 2013, after a public hearing, the Board again voted to approve the Project and issued the 2013 Decision (superseding the 2012 Decision), which again granted site plan approval for the Project, as revised, and granted all ten requested special permits. [Note 14]
12. In granting site plan approval for the Project pursuant to under Ord. § 30-23(c)(2), the Board found, inter alia, that the Project, as amended, will be in harmony with the conditions, safeguards and limitations set forth in the [Ordinance], and that said action will be without substantial detriment to the public good and without substantially derogating from the intent or purpose of the [Ordinance]. The Board further found that the Project adequately addressed all concerns as to automobile and pedestrian traffic and safety [Note 15] and that the Project had made adequate arrangements for disposal of waste and regulating surface water. [Note 16]
13. With respect to the Zoning Permit [Note 17], the Board found that Locus was an appropriate location for the proposed 13 unit multi-family dwelling for the following reasons:
a) The use will provide additional housing units on an under utilized parcel that is within an existing village center, within walking distance to the West Newton commuter rail station and an MBTA Express bus to Boston and to other amenities including restaurants, shops, and retail service establishments. Locating multi-family housing of this type in a village center is in accordance with the recommendations of the 2007 Newton Comprehensive Plan.
b) The Project will include both business and residential uses and will serve as a transition from the commercial to the residential areas of West Newton.
c) The proposed dwelling units are one-bedroom and two-bedroom relatively small units in terms of square footage, which are in short supply in the Citys housing inventory.
14. With respect to the Wall Permit [Note 18], the Board found as follows:
A retaining wall greater than four feet in height within a side setback will not create a nuisance or serious hazard to vehicles, pedestrians, or abutting properties because it will be well-screened, fenced, has only a minor reveal facing the abutter, and will not create any drainage problems for the abutting properties.
[ ] The retaining wall is necessary to provide access to the underground parking garage, which permits a more efficient use of the Site by removing surface parking.
15. With respect to the Dimensional Permit, the Board found as follows:
a three story structure that is 35.6 feet in height will not adversely affect the neighborhood because the proposed elevation at the highest point of the roof will be lower than that of abutting buildings including the [GBCCA Building] at 437 Cherry Street and the condos at 56-66 Webster Street. [Note 19]
The Board further found that the proposed FAR of 1.47 is appropriate in the context of the neighborhood, which is a dense village center and the additional mass is in keeping with the scale of the surrounding commercial buildings and is also required to accommodate the objective of providing additional affordable housing.
16. With respect to the Residential Parking Permit [Note 20], the Commercial Parking Permit [Note 21], and the Exceptions Permit [Note 22], the Board found that [t]he relatively small average size of the planned apartments would likely attract tenants disposed to use public transportation or to have only one automobile per unit, making a parking waiver appropriate at this site. The Board also found that Locus was within walking distance of the West Newton commuter rail station, an MBTA Express bus route to Boston, adequate public parking and a broad spectrum of neighborhood amenities, and that the office and residential uses are complementary and will allow for coordinated usage of the garage at different times.
17. With respect to the Aisle Permit [Note 23] (and the Exceptions Permit -- see discussion, supra, at n. 22), the Board found that [a] turning template has been presented that provides evidence that maneuvering space in the [Garage] is functional, and will only service the residents of the [Development], [and] the traffic volume will be light.
18. With respect to the Driveway Permit [Note 24] (and the Exceptions Permit -- see discussion, supra, at n. 22), the Board found that residents [of the Development] will be familiar with the parking layout, will be the primary users of the parking facility.
19. With respect to the Garage Permit [Note 25] (and the Exceptions Permit -- see discussion, supra, at n. 22), the Board found that the undersized stalls in the Garage would be located at the end of a row and will not likely interfere with the safe use of the parking facility.
20. With respect to the Density Permit [Note 26], the Board found that the additional unit will contribute to the housing goals of the Comprehensive Plan and increase the diversity of the Citys housing stock.
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Plaintiffs Motion to Strike Portions of the Lee Affidavit
Before turning to the merits of the parties dispositive motions, the court must first rule on Plaintiffs motion to strike portions of the Lee Affidavit (and multiple exhibits attached thereto). Plaintiff argues that portions of the Lee Affidavit should be stricken from the summary judgment record because, Plaintiff claims, it contains inadmissible speculation and opinion, as well as multiple instances of hearsay.
Upon the courts review of the Lee Affidavit, it is clear that it contains numerous instances of opinion and speculation. Lee is a fact witness who is not competent to testify as to his opinion with respect to the suitability of the Project at Locus, or whether the Project would advance the goals of the Comprehensive Plan. As such, Paragraph 2 (second sentence), Paragraph 3 (portion discussing employment opportunities only), Paragraph 4, Paragraph 5, and Paragraph 26 of the Lee Affidavit are stricken. On the other hand, Paragraphs 9 and 10 of the Lee Affidavit are statements as to which Lee has personal knowledge, so they are not stricken.
The Lee Affidavit also contains several instances of hearsay, insofar as Lee purports to reproduce and discuss statements contained in several documents, including a Zoning Review Memoranda, the 2013 Decision, and correspondence between members of the Board (describing a conversation with Plaintiff). Even if the courts review of the Boards action were not de novo, these statements would be inadmissible hearsay. However, because the courts review is de novo, it is all the more clear that records pertaining to the Boards deliberations have no place in the summary judgment record. As such, Paragraphs 12, 17-19, and 24 of the Lee Affidavit are stricken. Likewise, Exhibits 10, 11, and 14-25 of the Lee Affidavit are stricken. [Note 27]
With respect to Exhibits 1-5 of the Lee Affidavit, Plaintiff does not plausibly raise an issue as to their authenticity, but rather claims only that Lee is not competent to authenticate them. Nonetheless, as these exhibits all appear to be accurate, factual representations, there is no reason to strike them from the record. However, per the foregoing discussion, because Lee is not competent to interpret these documents, to the extent that the Lee Affidavit purports to do so, his testimony has been stricken.
Per the foregoing discussion, Plaintiffs motion to strike portions of the Lee Affidavit is
ALLOWED solely to the following extent: Paragraphs 2 (second sentence), 3 (portion discussing employment opportunities only), 4-5, 12, 17-19, 24, and 26; and Exhibits 10, 11, and 14-25 of the Lee Affidavit are stricken from the summary judgment record; Plaintiffs motion to strike is DENIED in all other respects.
The Parties Dispositive Motions
Summary judgment is appropriate where there are no genuine issues of material fact in dispute, and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g., Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
A person aggrieved by a zoning board's decision may appeal to the Land Court department. G.L. c. 40A, § 17. A party is presumed to be aggrieved if it is a party in interest -- a term defined as the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . . G. L. c. 40A, § 11; see also Marotta v. Bd. of App. of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of App. of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). Conversely, if a party does not fall into this category of presumed parties in interest, he or she has the burden to demonstrate some harm; if the party cannot do so, the developer need only show that the party has no reasonable expectation of proving a legally cognizable injury. E.g., Standerwick v. Zoning Bd. of App. of Andover, 447 Mass. 20 , 35 (2006) (citing Kourouvacilis v. Gen. Mot. Corp., 410 Mass. 706 , 716 (1991).
In its Answer, Young raised the issue of Plaintiffs standing to challenge the 2013 Decision. However, in their motion papers, Young opted not to argue this claim. Standing is a jurisdictional matter that must be resolved before proceeding to the merits, and which may be raised by the court sua sponte. Plaintiff is a direct abutter to Locus, and therefore has presumptive standing pursuant to G. L. c. 40A, § 11. Moreover, Plaintiff has raised concerns as to density and overcrowding, which have routinely been found by the courts to be valid concerns. E.g., Sheppard v. Zoning Bd. of App. of Boston, 74 Mass. App. Ct. 8 , 12, rev. denied, 454 Mass. 1103 (2009). Thus, I find, sua sponte, that Plaintiff has standing to challenge the 2013 Decision.
The court reviews the Boards finding of fact in the 2013 Decision de novo. E.g., Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). Thus, the 2013 Decision will be upheld unless the court determines, on the basis of the facts found, supra, that the 2013 Decision was based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary. Britton v. Zoning Bd. of App. of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003).
Pursuant to the 2013 Decision, Young and Community were granted site plan approval under Ordinance § 30-23(c)(2) and the following ten special permits for the Project:
(a) the Zoning Permit (allowing a multi-family residence in the B1 Zoning District pursuant to Ord. § 30-11(d)(8));
(b) the Wall Permit (permitting a retaining wall more than four feet tall within a setback pursuant to Ord. § 30-5(b)(4));
(c) the Dimensional Permit (allowing the Development to be 35.6 feet high with an FAR of 1.47 under Ord. § 30-15, Tbl. 3);
(d) the Residential Parking Permit (allowing two parking stalls per dwelling unit pursuant to Ord. § 30-19(d)(1));
(e) the Commercial Parking Permit (allowing one parking stall for each 250 square feet of office space under Ord. § 30- 19(d)(11));
(f) the Aisle Permit (permitting a twenty-two foot wide maneuvering aisle in the Garage under Ord. § 30-19(h)(3));
(g) the Driveway Permit (requiring the entrance and exit driveway to the Garage to accommodate two-way traffic and to be to be twenty feet wide under Ord. § 30-19(h)(4)(a));
(h) the Garage Permit (permitting two undersized parking stalls in the Garage pursuant to Ord. § 30-19(g)(2));
(i) the Exceptions Permit (allowing exceptions to the provisions of Ord. § 30-19 and Ord. § 30-24 (which outline the general criteria under the Ordinance for granting special permits) pursuant to Ord. § 30-19(m)) [Note 28]; and,
(j) the Density Permit (allowing a density bonus pursuant to Ord. § 30-24(f) and Ord. § 30-24(f)(16) based upon the inclusion in the Development of more affordable units than would be required by the Ordinance).
Plaintiff argues that the Board failed to make sufficient findings of fact with respect to the Special Permits and Site Plan Approval, and that the evidence before this Board was insufficient to support the Boards approval of the Project. It should be noted that Plaintiff does not dispute the findings of fact made by the Board, but rather argues only that the findings of fact made by the Board were insufficient to justify the 2013 Decision.
A. Site Plan Approval Pursuant to Ord. § 30-23(c)(2)
Ord. § 30-23(c)(2) states that the Board shall consider the application in light of the criteria listed in Ord. §§ 30-23(c)(2)(a-h). [Note 29] Plaintiff only challenges the Boards findings with respect to Ord. §§ 30-23(c)(2)(a-b). [Note 30] Plaintiff also specifically objects to the Boards grant of site plan approval for the Project based upon its claim that the Board improperly calculated the requisite side yard setbacks for Locus.
With respect to Ord. § 30-23(c)(2)(a), the Board specifically found that pedestrian and traffic safety and convenience would be adequately protected, since the Project, as proposed, would include numerous safety features, including signage and a new traffic signal; further, the Board found that the Project would promote convenience based upon its close proximity to local amenities and public transportation. With respect to Ord. § 30-23(c)(2)(b), the Board found that the Project had made adequate arrangements for disposal of waste and regulating surface water drainage, based upon specific findings of fact as to removal of waste and the adequacy of the proposed drainage system. [Note 31]
In sum, based upon the evidence before it, the Board made specific, reasonable findings of fact with respect to Ord. §§ 30-23(c)(2)(a-b). Plaintiff has produced nothing suggesting that these findings were improper or based upon insufficient evidence. As such, I find that the Board reasonably considered the criteria set forth in Ord. § 30-23(c)(2)(a-b) when approving the Project, and, therefore, that the Boards issuance of such site plan approval for the Project was proper.
Turning to Plaintiffs more specific objection to the Boards grant of site plan approval for the Project, Plaintiff argues that the Project would not meet the Ordinances minimum side yard setback requirements based upon the location of the above-ground aspects of the Development. [Note 32] Defendants argue that the Project, as proposed, satisfies all requirements of the Ordinance with respect to setbacks, and that the Boards findings were based upon sufficient evidence to grant approval of the Project.
The Board, in the 2012 Decision, determined that the proper side yard setback for Locus imposed by the Ordinance is 4.7 feet that is, the distance equal to the side yard setback of the GBCCA Property. Minimum setbacks in the B1 Zoning District are prescribed by Ord. § 30-15, Tbl. 3, which provides that the minimum side yard setback in a Business 1 Zoning District is the distance equal to one-half the building height or a distance equal to the side yard setback of the abutting property at any given side yard except, when abutting a residential zone, the setback shall be one-half the building height or fifteen feet, whichever is greater. Locus does not abut a residential zone, so at issue here is whether the minimum side yard setback of the Development should be half its elevation or the distance of the GBCCA Building from Locus.
The Development, as proposed, would have a maximum elevation of 35.6 feet, half of which would be 17.8 feet. The GBCCA Building, at its point closest to the lot line between the GBCCA Property and Locus (i.e., at the portion of the Addition that extends farther north than the rest of the GBCCA Building) is only 4.7 feet away from Locus. As such, the Board determined that the proper setback for the Development was the lesser of these two figures (4.7 feet). Plaintiff contends that the Boards determination to require the lesser of these two figures was arbitrary and unreasonable. Further, Plaintiff claims, that even if the proper setback were to be based upon the distance of the GBCCA Building to Locus, Footnote 2 does not specify that any given side yard is intended to refer to the closest point of a buildings encroachment on its side yard. As such, Plaintiff argues, this section should be interpreted as permitting measurement of side yard setbacks from the point where the GBCCA Property is farthest from its side yard.
Ord. § 30-1 defines a lots setback line as a point equidistant from the lot line which establishes the nearest point to the lot line at which the nearest point of a structure may be erected. Further, Ord. § 30-15 (e) states that a lots setback line shall be measured from the lot lines to the nearest portion of the structure, including outside vestibule or porch. Thus, Plaintiff is incorrect that Footnote 2 can be read to permit measurement of the GBCCAs side yard setback from any point of the GBCCA Building other than its closest point to Locus. Rather, the Ordinance specifically requires that a setback be measured based upon the GBCCA Buildings closest point of encroachment on Locus that is, where the Addition comes to within 4.7 feet of Locus. [Note 33] Thus, I find that the Boards calculation of the GBCCA Propertys side yard setback of 4.7 feet was correct.
Turning next to Plaintiffs argument as to which measurement (i.e., one-half the Developments height or the GBCCA Propertys side yard setback) should be used to determine the minimum side lot setbacks for Locus, Plaintiff argues that the lack of guidance in the Footnote 2 as to which of these two distances should be used to determine the minimum side yard setback for B1 Zoning District buildings renders this provision of the Ordinance per se arbitrary and unreasonable. By including the disjunctive or language between the two options as to how to measure a side yard setback for a proposed B1 Zoning District building, Footnote 2 implies that deciding which calculation to apply would be left to the discretion of the Board, and that the Board would be permitted to weigh the facts and circumstances of any particular case in determining which to apply. Thus, the mere fact that the Board, after considering the facts at bar, chose the lesser of two standard to apply here does not somehow render that decision legally untenable, unreasonable, whimsical, capricious, or arbitrary.
Plaintiff argues that Footnote 2, when read in the context of the full text of the Ordinance, should be interpreted as implying that the greater of two possible measurements should be used. As support for this position, Plaintiff cites the second clause of Footnote 2, which states that: when abutting a residential zone, the setback shall be one-half the building height or fifteen feet, whichever is greater. Plaintiff argues the phrase whichever is greater was intended by the drafters of the Ordinance to apply to both clauses of Footnote 2, and that the absence of this phrase from the first clause of Footnote 2 was merelysloppydraftsmanship. Plaintiff cites five additional instances in Table 3 where the Ordinance directs the Board to apply the greater of two setback distance measurements, and only one instance where the Ordinance directs application of the lesser of two setback measurements. [Note 34]
The second clause of Footnote 2, which directs the Board to choose the greater of two options, applies only where a proposed development abuts a residential zone, and is clearly separated from the first clause of Footnote 2. Thus, Plaintiffs argument that the greater language in the second clause of Footnote 2 was intended also to apply to the first clause thereof is without merit. Moreover, the fact that the drafters of the Ordinance gave specific guidance as to which of two competing standards should be applied in at least six specific instances, yet did not specify whether to use the greater or the lesser of the two options in Footnote 2 (first clause), is powerful evidence that the drafters left this determination to the discretion of the Board.
Whenever language in a local zoning bylaw is ambiguous, the court gives deference to the local zoning authority in its interpretation of its own bylaw. E.g., Petrillo v. Zoning Bd. of App. of Cohasset, 65 Mass. App. Ct. 453 , 460 (2006). Here, the Board gave a reasonable, plain language interpretation of Footnote 2, upon which it determined that it would be appropriate to require the Development to have minimum setbacks of 4.7 feet. E.g., Bldg. Com'r of Franklin v. Dispatch Comm'ns of New Eng., Inc., 48 Mass. App. Ct. 709 , 717 (2000) (zoning boards common sense interpretation was not arbitrary); Livoli v. Zoning Bd. of App. of Southborough, 42 Mass. App. Ct. 921 , 922 (1997) (zoning boards reasonable interpretation of a bylaw is entitled to deference).
In addition to the foregoing general principles of statute construction, relevant case law suggests that, absent specific direction from the Ordinance, the Board is free to exercise its discretion in choosing the standard. For instance, in Van Arsdale v. Town of Provincetown, 344 Mass. 146 , 149 (1962), which interpreted a local zoning bylaw provision setting rear yard setbacks for vacant lots, the court found that the specification Rear Yards Average or 15 feet gives the owner the option of either distance. The court further justified this conclusion, stating that a zoning minimum would be determined in many instances without reference to a reasonable distance. Id. at 150. [Note 35]
In sum, based upon the facts at bar and the courts reading of the Ordinance, I find that the Boards interpretation of Footnote 2 (clause 1) as permitting either the greater or lesser of the two possible measurements set forth in said clause was not arbitrary or unreasonable. [Note 36]
Plaintiff next argues that -- even if it was not unreasonable for the Board to have interpreted Footnote 2 (clause 1) as permitting either of the two possible measurements to be used as the minimum setback for the Development based upon the facts at bar, the Boards selection of the lesser of the two possible measurements was inherently unreasonable, because it allowed a 35.6 foot building (which would normally require a setback of nearly eighteen feet) to be setback only 4.7 feet from the GBCCA Property. Specifically, Plaintiff argues that allowing a setback of 4.7 feet would be contrary to the recognized purposes of setback requirements, including to lessen congestion in the streets; . . . to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land, [and] to avoid undue concentration of population. Shirley Wayside Ltd. Partnership v. Bd. of App. of Shirley, 461 Mass. 469 , 481 (2012).
However, despite reciting this legal authority, Plaintiff offers no actual proof of any such prospective harms. And, other than pointing out that there is a significant discrepancy between the two possible setback measurements, Plaintiff offers no showing that a 4.7 foot setback would be manifestly unreasonable. Absent such proof, the Board is entitled to deference. E.g., Britton v. Zoning Bd. of App. of Gloucester, 59 Mass. App. Ct. 68 , 74 (2003). Moreover, as found, supra, the Boards determination was based upon its reasonable interpretation of Footnote 2 of the Ordinance. In sum, I find that the Boards requirement of a 4.7 foot side yard setback from the GBCCA Property was not arbitrary or unreasonable.
As a final point on the issue of setbacks, Plaintiff threatens that, if the court upholds the Boards interpretation of Footnote 2, then Plaintiff will remove part of the Addition in order to forcibly increase the setback requirement of Locus. Setting aside the appropriateness of making this threat in the context of ongoing litigation, it is clear that, even if Plaintiff were to do so, such action would have no effect on the zoning requirements applicable to Locus. E.g., Marques v. Zoning Bd. of Appeals of Weymouth, Mass. App. Ct. No. 08-P-932, at 2 (June 23, 2009) (unpublished decision) ([T]here is no requirement that changes in the status of abutting land, occurring after the date a special permit application has been filed, must be considered by the Board.); Klein v. Planning Bd.
of Wrentham, 31 Mass. App. Ct. 777 , 778 (1992) (It is a well established principle that one may not put himself in a more advantageous situation for zoning purposes by his own actions . . . .).
This principle applies equally to the case at bar. Thus, any modification to Plaintiffs building would not affect the setback requirements applicable to Locus. Otherwise, if Plaintiff could modify the setback requirements of Locus through its threatened course of action to alter its building to create a setback of eleven feet, this would enable Plaintiff to put itself in a more favorable zoning position by its own action, which, per the foregoing authority, would be an unacceptable result. The Board has already taken action with respect to the Project, approval for which was granted based upon the facts before the Board at the time of the application; Plaintiff is not now entitled to have such approvals rescinded by altering its own property. If the requirements applicable to once- conforming lots could be changed based upon later events, such a possibilitywould create uncertainty and confusion as to the actual requirements of the land. In sum, I find that the Project conformed to the proper setback requirements (as found by the Board and upheld herein) when the Board approved the Youngs applications, so changes in the GBCCA Property do not affect the setback for Locus.
In sum, I find that the Board did not err in granting site plan approval for the Project.
B. The Special Permits Granted by the Board for the Project
Ord. § 30-24(d), which provides the standard applicable to the Boards authority to grant special permits, states as follows:
The board of aldermen may grant a special permit when, in its judgment, the public convenience and welfare will be served, and subject to such conditions, safeguards and limitations as it may impose. The board of alderman shall not approve any application for a special permit unless it finds, in its judgment, that the use of the site will be in harmony with the conditions, safeguards and limitations herein set forth, and the application meets all the following criteria []: 1) The specific site is an appropriate location for such use, structure; 2) The use as developed and operated will not adversely affect the neighborhood; 3) There will be no nuisance or serious hazard to vehicles or pedestrians; 4) Access to the site over streets is appropriate for the type(s) and number(s) of vehicles involved; 5) In cases involving construction of building(s) and/or structure(s) or additions to existing building(s) and/or structure(s), if those proposed building(s) and/or structure(s) or additions contain individually or in the aggregate 20,000 or more square feet in gross floor area, the site planning, building design, construction, maintenance or long-term operation of the premises will contribute significantly to the efficient use and conservation of natural resources and energy.
Upon reviewing the undisputed facts, the 2012 and 2013 Decisions, and the Comprehensive Plan, I find that all the special permits granted by the Board for the Project will serve the public convenience and welfare, since the Project, as revised, will provide rental properties and mixed-use development near a village center, as called for by the Comprehensive Plan. Moreover, as discussed, infra, with respect to the Dimensional Permit, the Project does so in a manner that complies with all dimensional requirements of the Ordinance, as interpreted by the Board. It therefore remains to be determined whether the Project would satisfy the criteria set forth in § 30-24(d)(1-4), which will determine whether each of the ten special permits granted by the Board were validly issued. [Note 37]
1. The Zoning Permit
Pursuant to Ord. § 30-11(d)(8), relating to permitted uses in the B1 Zoning District, the Ordinance allows multi-family dwellings by special permit in accordance with the procedures of section 30-24, subject to the density and dimensional controls set forth in section 30-15 and the parking requirements set forth in section 30-19. With respect to the Zoning Permit, the Board found as follows:
a) The use will provide additional housing units on an under utilized parcel that is within an existing village center, within walking distance to the West Newton commuter rail station and an MBTA Express bus to Boston and to other amenities including restaurants, shops, and retail service establishments. Locating multi-family housing of this type in a village center is in accordance with the recommendations of the 2007 Newton Comprehensive Plan.
b) The Project will include both business and residential uses and will serve as a transition from the commercial to the residential areas of West Newton.
c) The proposed dwelling units are one-bedroom and two-bedroom relatively small units in terms of square footage, which are in short supply in the Citys housing inventory.
These findings amply reflect the Boards consideration of Ord. §§ 30-15 and 30-19, which are more fully discussed, infra, with respect to the Dimensional Permit, the Residential Parking Permit, the Commercial Parking Permit, the Aisle Permit, the Driveway Permit, the Garage Permit, and the Exceptions Permit.
Further, as required under Ord. § 30-24(d)(1), the Board found that it was appropriate to grant the Zoning Permit, and that Locus was an appropriate location for the Project, since it would serve as a transition from the commercial to the residential areas of West Newton. The surrounding neighborhood is a populated area consisting of parks, shops, restaurants, offices, and police headquarters. Thus, the Project would advance the goals of the Comprehensive Plan by providing rental housing through mixed-development within an existing village center.
Additionally, as required by Ord. §§ 30-24(d)(2-4), the Board determined that the Project would not adversely affect the neighborhood, that there would be no nuisance or serious hazard to vehicles or pedestrians, and that access to the streets would be appropriate for the limited number of vehicles involved. The Project contains only thirteen small dwelling units, and it includes numerous safetymeasures to mitigate traffic problems; moreover, it was reasonable to conclude that the Project, based on expected tenants and its close proximityto public transportation, would be unlikely to create significant traffic.
In sum, I find that the Board did not err in granting the Zoning Permit.
2. The Wall Permit
Pursuant to the Wall Permit, the Board allowed [t]he placement of a retaining wall of four feet or more, as measured from the foot of the wall to hits highest point within a setback . . . . The Wall, as proposed, will be located on the north side of the building as a structural wall for the underground parking facility, and has a height of 8.5 feet near the entrance to the Project. [Note 38] The Board granted Wall Permit, finding as follows:
2. A retaining wall greater than four feet in height within a side setback will not create a nuisance or serious hazard to vehicles, pedestrians, or abutting properties because it will be well-screened, fenced, has only a minor reveal facing the abutter, and will not create any drainage problems for the abutting properties.
3. The retaining wall is necessary to provide access to the underground parking garage, which permits a more efficient use of the Site by removing surface parking.
In granting the Wall Permit, the Board was required to consider Ord. §§ 30-24(d), 30-15, and 30-19. As noted, supra, and discussed more fully, infra, Board adequately considered the requirements of Ord.§§ 30-15 and 30-19; thus, we need consider only Ord. § 30-24(d) here.
Under Ord. § 30-24(d)(1), the Board reasonably determined that Wall would be in a appropriate location, since it would be over thirty feet from the northern facing building of the abutting property. Under Ord. § 30-24(d)(2), it was also reasonable for the Board to find that the Wall would not adversely affect the neighborhood or create a nuisance or serious hazard to cars or pedestrians, since the Wall will be topped by the Fence -- a six foot, green screen fence. Under § 30- 24(d)(3), the Board reasonably found that the Fence was an adequate measure to address any hazard that the Wall might create. Notably, the plans for the Project indicate that only 2.5 feet of the Wall will be above ground, so a hazard created by such wall is highly unlikely. Further, under § 30- 24(d)(4), the Board reasonably found that the number of vehicles coming and going from Locus would be minimal.
In sum, I find that the Board did not err in granting the Wall Permit.
3. The Dimensional Permit
Plaintiff argues that the Dimensional Permit was invalidly granted because the Project, as proposed, would not meet all dimensional requirements of the Ordinance. Pursuant to Ord. § 30-15, Table 3, a building in the B1 Zoning District may be two stories and twenty-four feet high by right, or three stories and thirty-six feet high by special permit. The Board allowed the proposed Development height of 35.6 feet, finding that, a three story structure that is 35.6 feet in height will not adversely affect the neighborhood because the proposed elevation at the highest point of the roof will be lower than that of abutting buildings including the GBCCA at 437 Cherry Street and the condos at 56-66 Webster Street. The height of the Development is within the limits permitted by the Ordinance with a special permit.
With respect to FAR, Ord. § 30-15, Table 3 permits B1 Zoning District buildings to have an FAR of 1.00 as of right, and an FAR of 1.50 by special permit. Here, the Board allowed an FAR of 1.47, stating that an FAR of 1.47 is appropriate in the context of the neighborhood, which is a dense village center and the additional mass is in keeping with the scale of the surrounding commercial buildings and is also required to accommodate the objective of providing additional affordable housing. The Board further stated that the Project would be in keeping with the scale of the surrounding commercial buildings, noting that Locus is an underutilized parcel within an existing village center, and that mixed developments near village centers are recommended in the Comprehensive Plan -- which describes West Newton is a Major Center capable of receiving additional floor area of development of 500,000 to 1 million square feet.
Here, the heights of the surrounding buildings near Locus are comparable. In addition, the neighborhood surrounding Locus is a populated area consisting of parks, shops, restaurants, offices, and police headquarters. As such, the Project would advance the Comprehensive Plans recommendation that mixed-use developments be placed within village centers that promote a pedestrian environment conducive to urban amenities and public transport. In support of the Comprehensive Plans goal of promoting walking and public transportation, the Project is located near MBTA bus routes 553 and 554, the West Newton MBTA commuter rail stop, and numerous amenities. Additionally, the Project only creates (a) 1,000 square feet of office space and (b) thirteen small (one to two bedroom) dwelling units. The additional traffic that would be generated by this influx of additional occupants is accommodated by the planned safety measures, which would minimize the adverse affects, nuisances, and hazards to vehicles or pedestrians.
Based upon the foregoing, I find that the Board did not err in granting the Dimensional Permit.
4. The Ord. § 30-19 Permits (i.e., the Residential Parking Permit, the Commercial Parking Permit, the Aisle Permit, the Driveway Permit, and the Garage Permit)
Ord. § 30-19(m) states that the Board may grant special permits for exceptions to Ord. § 30- 19 if it is determined that literal compliance is impracticable due to the nature of the use, . . . or that such exceptions would be in the public interest, or in the interest of safety, and provided the proposed use complies with Ord. §§ 30-24(d)(1-4). Ingranting the Exceptions Permit (see discussion, supra, at n. 22), the Board found that exceptions to Ord. § 30-19 were warranted here, and therefore granted the Residential Parking Permit, the Commercial Parking Permit, the Aisle Permit, the Driveway Permit, and the Garage Permit.
Turning first to Ord. §§ 30-24(d)(1-4), the Board found that the special permits for the Garage and Driveway all met the required criteria. Under Ord. § 30-24(d)(1), the Board found that Locus would be an appropriate location for an exception to the requirements of Ord. § 30-19 based upon the recommendations of the Comprehensive Plan and the presence of amenities and public
transportation. Under Ord. § 30-24(d)(2), the Board found that the reduction in available parking would not adversely affect the neighborhood because Locus will be used primarily by residents and occupants of the building, and that vehicular traffic would be limited by the Developments proximity to public transportation. Under Ord. § 30-24(d)(3), the Board found that the nuisance or hazard to vehicles and pedestrians would be mitigated by the limited traffic, as well as the proposed safety measures. Under Ord. § 30-24(d)(4), the Board found that access to Locus over public streets would be appropriate because of the limited number of vehicles, due to the nature of the proposed use of the Development, and the proximity of public transportation. These findings appear to be reasonable in light of the evidence before this court.
The Residential Parking Permit seeks permission to vary from the Ordinances requirement of [t]wo parking stalls for each dwelling in a one- or two-family dwelling. Such parking stalls may be stacked one behind the other and may be located within the side yard setback. The Commercial Parking Permit seeks permission to vary from the Ordinances requirement of one stall for each 250 square feet thereof of gross floor area, up to 20,000 square feet, ... in any office or professional building. Together, these provisions would require the Development to have at least thirty parking stalls -- twenty-six pursuant to Ord. § 30-19(d)(1) and four pursuant to Ord. § 30-19(d)(11). The Project provides for nineteen parking stalls -- eighteen in the underground parking facility and one handicapped stall at grade.
Here, the Board found that the relatively smallaverage size of the planned apartments would likely attract tenants disposed to use public transportation or to have only one automobile per unit, making a parking waiver appropriate at this site. The Board also found that the office and residential uses are complimentary and will allow for coordinated usage of the garage at different times. It was reasonable for the Board to make these conclusions, based on the relatively small size of the proposed apartments. Moreover, the Comprehensive Plan recommends carefully designed limits at appropriate locations for parking. In sum, the waiver of thirty parking stalls would be in the public interest, or in the interest of safety, as required by Ord. § 30-19(m). As such, I find that the Board did not err in granting the Residential Parking Permit and the Commercial Parking Permit.
With respect to the Aisle Permit, Ord. § 30-19(h)(3) requires a minimumwidth of twenty-four feet maneuvering aisle when the Garage has ninety degree parking. The Project proposes ninety degree parking and an aisle width of twenty-two feet. This more narrow maneuvering aisle was allowed by the Board because a turning template has been presented that provides evidence that maneuvering space in the garage is functional. The Board also found that the structure will only service the residents of the building, [and] the traffic volume will be light. This finding appears to be reasonable in light of the evidence before this court. As such, I find that the Board did not err in granting the Aisle Permit.
With respect to the Driveway Permit, Ord. § 30-19(h)(4)(a) requires that access driveways be a minimum of twenty feet wide when accommodating two-way traffic, or twelve feet for one-way traffic. The Project proposes a one-way access driveway with a width of twelve feet -- the minimum to accommodate one-way use under Ord. § 30-19(h)(4)(a). The Board found such width to be appropriate because residents, will be familiar with the parking layout, will be the primary users of the parking facility. In addition, the Project proposes signage alerting those entering and exiting the Driveway in order to mitigate any potential hazard or nuisance created by the width of the driveway. These findings appear to be reasonable in light of the evidence before this court. As such, I find that the Board did not err in granting the Driveway Permit.
With respect to the Garage Permit, Ord. § 30-19(g)(2), parking stalls [s]hall be at least (9) feet; stall depth shall be at least nine (9) feet; stall depth shall be at least (19) feet for all angle parking and twenty-one (21) feet for parallel parking. As proposed, the Project includes two undersized parking stalls. The Board found waiver of this requirement to be appropriate, since the undersized stalls are located at the end of a row and will not likely interfere with the safe use of the parking facility. This finding appears to be reasonable in light of the evidence before this court. As such, I find that the Board did not err in granting the Garage Permit.
Based upon the foregoing discussion, the court has found that, in granting the Residential Parking Permit, the Commercial Parking Permit, the Aisle Permit, the Driveway Permit, and the Garage Permit, the Board adequately considered of Ord. § 30-19(m) and Ord. §§ 30-24(d)(1-4). See discussion, supra, at n. 22. By implication, therefore, the Board was warranted to find that allowing exceptions to Ord. § 30-19 for the project pursuant to said special permits would be proper. Accordingly, I find that the Board did not err in granting the Exceptions Permit.
5. The Density Permit
Ord. § 30-24(f) requires certain new developments (including the Project) to include at least fifteen percent inclusionary (i.e., affordable) housing units, subject to certain criteria specified in that section. Further, Ord. § 30-24(f)(16) provides as follows:
[a] density bonus may be granted equal to one unit for each additional inclusionary unit provided above the number required by section 30- 24(f)(3), Inclusionary Units, up to a limit where lot area per dwelling unit is decreased by up to 25% as set forth in section 30-15 table 1.
Because the Project includes thirteen dwelling units, Ord. § 30-24(f) requires the Project to have at least two inclusionary units.
As proposed, the Project would include three inclusionary units, so there is clearly no issue as to whether the Project provides adequate affordable housing. Moreover, it should be noted that the Projects proposed FAR of 1.47 was already within the limits of Ord. § 30-15, Table 3, as approved by the Board pursuant to the Dimensional Permit. To the extent that there is any dispute as to the Project exceeding the minimum requirements as to affordable housing, it would appear that the one additional inclusionary unit is in line with the Comprehensive Plans goal to provide affordable housing in the City. Therefore, even though the Density Permit was not required, I find that the Board did not err in granting the Density Permit.
Conclusion and Holding
Based upon the foregoing discussion, the court has found that the Board did not err in issuing the 2013 Decision, granting site plan approval and ten special permits for the Project. Accordingly, Plaintiffs Motion for Summary Judgment is DENIED in all respects, with prejudice. Defendants Motion for Partial Summary Judgment is ALLOWED in all respects.
Judgment to enter accordingly.
Ord. § 30-1 defines a lots setback line as a point equidistant from the lot line which establishes the nearest point to the lot line at which the nearest point of a structure may be erected. Further, Ord. § 30-15 (e) states that a lots setback line shall be measured from the lot lines to the nearest portion of the structure, including outside vestibule or porch. In addition, pursuant to Ord. § 30-15(n), [u]nderground structures including, but not limited to, basements and parking facilities, may be located within the applicable setback distance, provided that any portion of the underground structure which is visible above ground must conform to the applicable setback distance.
a) Convenience and safety of vehicular and pedestrian movement within the site and in relation to adjacent streets, properties or improvements, including regulation of the number, design and location of access driveways and the location and design of handicapped parking. The sharing of access driveways by adjoining sites is to be encouraged wherever feasible;
b) Adequacy of the methods for disposal of sewage, refuse and other wastes and of the methods of regulating surface water drainage . . . .
It should be noted that the 2013 Decision contains a typographical error pertaining to the Boardss grant of site plan approval for the Project, erroneously referring to [Ord.] § 30-23(2)(a)-(h), which is not a valid section of the Ordinance. Clearly, Ord. § 30-23(c)(2)(a)-(h) was the intended reference.
The board of aldermen maygrant a special permit when, in its judgment, the public convenience and welfare will be served, and subject to such conditions, safeguards and limitations as it may impose. The board of alderman shall not approve any application for a special permit unless it finds, in its judgment, that the use of the site will be in harmony with the conditions, safeguards and limitations herein set forth, and the application meets all the following criteria []: 1) The specific site is an appropriate location for such use, structure; 2) The use as developed and operated will not adversely affect the neighborhood; 3) There will be no nuisance or serious hazard to vehicles or pedestrians; 4) Access to the site over streets is appropriate for the type(s) and number(s) of vehicles involved; 5) In cases involving construction of building(s) and/or structure(s) or additions to existing building(s) and/or structure(s), if those proposed building(s) and/or structure(s) or additions contain individually or in the aggregate 20,000 or more square feet in gross floor area, the site planning, building design, construction, maintenance or long-term operation of the premises will contribute significantly to the efficient use and conservation of natural resources and energy.
a) The Project includes certain safety features including i) a flashing light warning system when vehicles are entering or exiting the garage alerting drivers that the driveway accommodates two-way traffic, ii) signage for right turns only to avoid conflicting vehicular movements on Cherry Street and ... the existence of a traffic signal at the intersection of Cherry and Webster Streets permit[ting] breaks in the traffic flow to create a safe environment for access to egress from the site.
b) The petitioner will provide a contribution of $3,500 towards the installation of a pedestrian- activated signal at the intersection of Cherry Street and Washington Street to provide safe access to the commuter rail and bus stop on the south side of Washington Street.
The Board further found that [b]ecause of the nature and use of the [Development], the Board does not anticipate the heavy presence of service vehicles. . . . The plans allow for access to the [Garage] with direct access to all floors by elevator.
a) To avoid negative impact on adjacent properties, waste generated from the Site will be stored in a properly-vented subterranean vault adjacent to the garage for collection . . . .
b) The City Engineering Division has reviewed the most recently revised engineering plans and details presented at public hearing and referenced in condition #1 herein; its Review Memorandum raises no major concerns with respect to this project. The elevation of the garage floor has been raised 3 ½ feet above the water table in response to concerns raised by the GBCCA. The Associate City Engineer notes that the drainage design needs an overflow connection to the Citys drainage system since the proposed on-Site system can only store and infiltrate 80% of the runoff from the Site for a 100-year storm event. He notes that an overflow connection is not unique as there are several dozen throughout the city that have been approved over the years due to Site constraints.
It is unclear why the Board, in the 2013 Decision, classified the Exceptions Permit (under Ord. § 30-19(m)) as a separate and distinct special permit, since Ord. § 30-19(m) merelyprescribes the general standard for issuing specific special permits under Ord. § 30-19 -- which, here, were the Residential Parking Permit, the Commercial Parking Permit, the Aisle Permit, the Driveway Permit, and the Garage Permit. Thus, because the Board found each of these five specific Ord. § 30-19 permits to satisfy the requirements of Ord. § 30-19(m), the Boards issuance of a separate special permit under Ord. § 30-19(m) would appear to have been redundant. In any event, having found each of the specific Ord. § 30-19 permits proper, a finding of propriety as to the Exceptions Permit necessarily follows.
[a] density bonus may be granted equal to one unit for each additional inclusionary unit provided above the number required by section 30-24(f)(3), Inclusionary Units, up to a limit where lot area per dwelling unit is decreased by up to 25% as set forth in section 30-15 table 1.
a) Convenience and safety of vehicular and pedestrian movement within the site and in relation to adjacent streets, properties or improvements, including regulation of the number, design and location of access driveways and the location and design of handicapped parking. The sharing of access driveways by adjoining sites is to be encouraged wherever feasible;
b) Adequacy of the methods for disposal of sewage, refuse and other wastes and of the methods of regulating surface water drainage . . . .
a) To avoid negative impact on adjacent properties, waste generated from the Site will be stored in a properly-vented subterranean vault adjacent to the garage for collection . . . .
b) The City Engineering Division has reviewed the most recently revised engineering plans and details presented at public hearing and referenced in condition #1 herein; its Review Memorandum raises no major concerns with respect to this project. The elevation of the garage floor has been raised 3 ½ feet above the water table in response to concerns raised by the GBCCA. The Associate City Engineer notes that the drainage design needs an overflow connection to the Citys drainage system since the proposed on-Site system can onlystore and infiltrate 80% of the runoff from the Site for a 100-year storm event. He notes that an overflow connection is not unique as there are several dozen throughout the city that have been approved over the years due to Site constraints.
THE GREATER BOSTON CHINESE CULTURAL ASSOCIATION, INC. vs. SCOTT F. LENNON, CARLETON P. MERRILL, ALLAN CICCONE, JR., STEPHEN M. LINSKY, MARCIA T. JOHNSON, SUSAN ALBRIGHT, ANTHONY SALVUCCI, TED HESS-MAHAN, GREER TAN SWISTON, JAY HARNEY, LEONARD J. GENTILE, AMY MAH SANGIOLO, JOHN RICE, BRIAN E. YATES, DEBORAH CROSSLEY, RICHARD BLAZAR, GREGORY R. SCHWARTZ, VICTORIA L. DANBERG, R. LISLE BAKER, MARC C. LAREDO, RUTHANNE FULLER, CHERYL LAPPIN, MITCHELL L. FISCHMAN and DAVID A. KALIS, Members of the City of Newton Board of Aldermen, YOUNG INVESTMENTS, LLC, and NEWTON COMMUNITY SERVICE CENTERS, INC.