Home 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.

MISC 12-475002

June 30, 2015

SANDS, J.

JUDGMENT

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 Young’s planned construction (the “Project”) of a three-storymixed-use development (the “Development”) onpropertyowned 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 [Note 2] On December 2, 2013, the Board, reviewing this dispute on remand, issued the 2013 Decision, which superseded the 2012 Decision, and granted site plan approval and ten special permits [Note 3] for the Project.

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 Project’s side yard setbacks and the setback of the Project’s 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 Plaintiff’s Board of Directors) and Donald R. Pinto, Jr. (“Pinto”) (Plaintiff’s attorney). On the same day, Young filed a Motion for Partial [Note 4] 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 5] On July 23, 2014, Plaintiff and Young each filed their opposition each other’s 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.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that Plaintiff’s Motion to Dismiss Count 2, with prejudice, filed on June 29, 2015, is hereby ALLOWED; and,

ORDERED and ADJUDGED Plaintiff’s 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; Plaintiff’s motion to strike is DENIED in all other respects; and,

ORDERED and ADJUDGED, sua sponte, that Plaintiff has standing to challenge the 2013 Decision; and,

ORDERED and ADJUDGED 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 Board’s issuance of such site plan approval for the Project was proper; and,

ORDERED and ADJUDGED that the Board’s calculation of the GBCCA Property’s side yard setback of 4.7 feet was correct; and,

ORDERED and ADJUDGED that the Board’s interpretation of Footnote 2 [Note 6] (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 7]; and,

ORDERED and ADJUDGED that the Board’s requirement of a 4.7 foot side yard setback from the GBCCA Property was not arbitrary or unreasonable; and,

ORDERED and ADJUDGED that the Board did not err in granting site plan approval for the Project; and,

ORDERED and ADJUDGED that the Project conformed to the proper setback requirements (as found by the Board and upheld herein) when the Board approved the Young’s applications, so changes in the GBCCA Property do not affect the setback for Locus; and,

ORDERED and ADJUDGED 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 bythe Comprehensive Plan [Note 8]; and,

ORDERED and ADJUDGED that the Board did not err in granting the Zoning Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Wall Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Dimensional Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Residential Parking Permit and the Commercial Parking Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Aisle Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Driveway Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Garage Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Exceptions Permit; and,

ORDERED and ADJUDGED that the Board did not err in granting the Density Permit; and,

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is DENIED in all respects, with prejudice; and,

ORDERED and ADJUDGED that Defendants’ Motion for Partial Summary Judgment is ALLOWED in all respects.

By the court.

FOOTNOTES

[Note 1] The Drain Pipe runs across Locus to property owned by Plaintiff that is adjacent to Locus located at 437 Cherry Street, West Newton, Massachusetts (the “GBCCA Property”). It is connected to two catch basins. Plaintiff desires to maintain the Drain Pipe in its present location and to use same to drain water onto Locus.

[Note 2] A joint motion to amend the remand order was allowed on March 12, 2013, which granted the Board an additional sixty days to hold a new public hearing with respect to the Project.

[Note 3] Specifically, the 2013 Decision granted Young special permits under the City of Newton (the “City”) Zoning Ordinance (the “Ordinance”) (a) allowing the Development to contain a multi-family residence in a zoning district designated bythe Ordinance as a “Business 1" zoning district (the “B1 Zoning District") pursuant to Ord. § 30-11(d)(8) (the “Zoning Permit”); (b) permitting a retaining wall (the “Wall”) more than four feet tall within a setback pursuant to Ord. § 30-5(b)(4) (the “Wall Permit”); (c) allowing the Development to be 35.6 feet high with a floor area ratio (“FAR”) of 1.47 pursuant to Ord. § 30-15, Tbl. 3 (the “Dimensional Permit”); (d) permitting fewer than two parking stalls per dwelling unit in the Development pursuant to Ord. § 30-19(d)(1) (the “Residential Parking Permit”); (e) permitting fewer than one parking stall for each 250 square feet of office space in the Development pursuant to Ord. § 30-19(d)(11) (the “Commercial Parking Permit”); (f) permitting a twenty-two foot wide maneuvering aisle in the garage of the Development pursuant to Ord. § 30-19(h)(3) (the “Aisle Permit”); (g) permitting the entrance and exit driveway to an underground parking garage (the “Garage”) in the Development to accommodate one-way traffic and to be to be twelve feet wide pursuant to Ord. § 30-19(h)(4)(a) (the “Driveway Permit”); (h) permitting two undersized parking stalls in the Garage pursuant to Ord. § 30-19(g)(2) (the “Garage Permit”); (i) allowing general exceptions to the provisions of Ord. § 30-19 pursuant to Ord. § 30-19(m) (the “Exceptions Permit”); and (j) 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 (the “Density Permit”).

[Note 4] Young’s motion did not seek summary judgment on Count 2 (pertaining to the Drain Pipe), and noted that the parties were hopeful that this issue could be resolved through settlement. On June 29, 2015, Plaintiff filed a Motion to Dismiss Count 2, with prejudice.

[Note 5] On June 19, 2014, the Board filed its own Motion for Partial Summary Judgment, which joined in Young’s arguments in its memorandum of law and its statements of material facts.

[Note 6] Footnote 2 is defined in the Decision as Ord. § 30-15, Tbl. 3, n. 2, which states that buildings in the B-1 Zoning District under the Ordinance must have side yard setbacks 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.”

[Note 7] The court strongly encourages the drafters of the Ordinance to clarify this provision to avoid future confusion and/or litigation on this issue.

[Note 8] The Comprehensive Plan is defined in the Decision as the November 2007 comprehensive plan adopted by the Board, which provided guidance and recommendations as to future development in the City.