ONE LEDGEMONT LLC, v. TOWN OF LEXINGTON ZONING BOARD OF APPEALS; CAROLYN C. WILSON, MARTHA C. WOOD, DAVID G. WILLIAMS, LEO P. McSWEENEY, and JEANNE K. KRIEGER, as They Are Members of THE TOWN OF LEXINGTON ZONING BOARD OF APPEALS and 95 HAYDEN LLC.

I. INTRODUCTION

The development challenged in this zoning appeal would add 162,000 square feet of new office space, and 415 new parking spots to the Ledgemont Corporate Center, a thirty-six acre campus-style corporate center in Lexington, Massachusetts, which already contains over 400,000 square feet of office and laboratory space in two buildings, and close to 1,000 parking spaces. The success of this challenge to the project’s permit depends on the availability to the developer of fifteen parking spots.

The Ledgemont Corporate Center comprises two parcels, which until 2012 were owned by affiliated entities. Working together, the two companies, One Ledgemont LLC and Two Ledgemont LLC, developed a plan to seek from the Lexington Town Meeting a rezoning that would allow development of a third building, to be known as Three Ledgemont. After the rezoning vote was secured, but before any permits or approvals were sought, ownership of the Two Ledgemont parcel, Parcel B, was transferred involuntarily to a non-affiliated owner, the defendant 95 Hayden LLC. 95 Hayden took up the permitting process for the Three Ledgemont site, and instead of finding a cooperative partner in One Ledgemont LLC, encountered its strong opposition. One Ledgemont LLC actively objected to the permitting requests made by 95 Hayden LLC. When, notwithstanding One Ledgemont’s opposition, the local zoning board of appeals granted 95 Hayden’s request for a special permit with site plan review, and related approvals required under the rezoning, this litigation ensued.

II. PROCEDURAL HISTORY

The initial complaint (“zoning case”), filed on February 12, 2013 [Note 1] under G. L. c. 40A, § 17 by One Ledgemont, LLC [Note 2] (“One Ledgemont”), seeks review of a decision of the Zoning Board of Appeals of the Town of Lexington (“Board”), whose members are defendants. The challenged decision (“Decision”) was an approval of 95 Hayden’s application for a special permit with site plan review, and approval of a “Definitive Site Development and Use Plan” (“DSDUP”). The DSDUP followed a Preliminary Site Development and Use Plan (“PSDUP”), approved by the Town Meeting on May 4, 2009, along with a rezoning of the two parcels comprising the Center.

The defendant developer, 95 Hayden LLC (“95 Hayden”), has counterclaimed, seeking a declaratory judgment (that “the work on parcel A authorized by the special permit, the PSDUP and the DSDUP is also authorized by provisions of the 1986 Agreement; is reasonably convenient to and does not materially interfere with the use of Parcels A and B; is a reasonable and permissible relocation of various easements under the 1986 Agreement [discussed and defined infra]; and has been agreed to and consented to by One Ledgemont LLC as a result of its actions and representations in designing, applying for, and seeking approval of the PSDUP and rezoning for Three Ledgemont Center from the Town of Lexington.”); for breach of contract (the 1986 Agreement); for breach of the implied covenant of good faith and fair dealing; for specific performance of One Ledgemont’s duties under the 1986 Agreement and the PSDUP; and for damages under G. L. c. 93A, § 11.

Meanwhile, 95 Hayden had sought an amended order of conditions from the Lexington Conservation Commission, which was granted on or about December 26, 2012. [Note 3] One Ledgemont filed an appeal in the Middlesex Superior Court on or about January 8, 2013, see MICV2013- 00068, and appealed to the Massachusetts Department of Environmental Protection (“DEP”) on March 29, 2013. On October 11, 2013, DEP issued a superceding order of conditions, affirming the conservation commission’s order of conditions, and denying One Ledgemont’s appeal.

Following the initial case management conference conducted by the court on March 12, 2013, all parties agreed to transfer both the Land Court zoning case, and the Superior Court wetlands case, to the Land Court’s Permit Session, see G. L. c. 185, § 3A. This was accomplished on April 9, 2013 as to the zoning case, which was assigned Permit Session Case No. 13 PS 477858, and on May 21, 2013 as to the wetlands case, which was assigned Permit Session Case No. 13 PS 477990. The court has not formally consolidated the two cases.

On April 10, 2013, following hearing, the court denied 95 Hayden’s motion to dismiss the zoning case. Denial was without prejudice to advancing the same arguments in a motion for summary judgment and supported by a Rule 56 record. 95 Hayden did just that, filing a summary judgment motion was filed May 3, 2013; One Ledgemont cross moved on May 16, 2013, and on June 3, 2013, the court conducted a hearing on the cross motions. Following argument, the court from the bench made limited rulings based on those facts not in dispute, and otherwise directed the parties to prepare for trial, concluding that material disputes of fact prevented full disposition of the case under Rule 56. [Note 4]

On a parallel track, the parties assembled an administrative record for review in the wetlands case, anticipating that the court would receive a motion under Mass. R. Civ. P. 12(c). Following a status conference on October 24, 2013, the court indicated it would defer scheduling a hearing on the motion for judgment on the pleadings in the wetlands case until after ruling on the underlying property rights issue, the principal and ultimately dispositive issue in the zoning case, mainly because if the approvals challenged in the zoning case were to be undone, then the wetlands case would become moot (see note 17).

In the presence of counsel and several representatives of the parties, on February 14, 2014, I took a view of the locus. The trial in this case opened March 3, 2014, and proceeded for four additional days. A court reporter, Janis Tracy Young, was sworn and present at all times to create a transcript of the testimony and proceedings. Over the course of five days of trial, forty- seven exhibits were admitted into evidence, some in multiple parts, and eleven witnesses testified, all as reflected in the transcripts filed.

At the end of trial day five on March 7, 2014, the court addressed a question which had arisen concerning the plaintiff’s allegation that certain emails which had not been produced by 95 Hayden, ought have been, and potentially were necessary to the plaintiff’s ability to put on its case. 95 Hayden argued that the requested emails were not discoverable and not admissible because they were within the protection of 95 Hayden’s attorney-client privilege. The court ordered the trial record kept open, but only for the limited purpose of receiving any evidence directly relating to the withheld emails (and also, by agreement, for the receipt of certain deposition extracts). The court set a briefing schedule on the question whether or not the privilege was applicable to the requested emails. After briefing, the court issued an order on June 23, 2014, ruling on the privilege question. As a result of that order, and counsels’ response to it, the record remained closed, and the case proceeded to closing argument, counsel having submitted post-trial requests for findings of fact and rulings of law and legal memoranda. Following argument, and the submission of the final transcript, the court took the case under advisement. I now decide the case.

III. FINDING OF FACTS

Based on all the evidence, and the reasonable inferences I draw therefrom, I make the following factual findings:

1. Ledgemont Corporate Center (“Center”) is a thirty-six-acre campus-style research and office park located at the intersection of Hayden Avenue and Spring Street in Lexington, Massachusetts. The Center is located in zoning district CD-14, according to the Lexington Zoning Map.

2. The Beal Companies are a group of individual real property ownership entities affiliated with the service company, Beal and Company, Inc. At all relevant times, the Beal Companies held a minority membership interest in One Ledgemont; Beal Companies also held a minority membership interest in Two Ledgemont LLC until it was acquired by 95 Hayden.

3. Prior to 1984, the entire thirty-six acre parcel stood as one lot. In or around 1984, the thirty-six acre parcel was subdivided into Parcel A and Parcel B. Ledgemont Associates, LP, (an entity owned and controlled by principals of the Beal Companies), obtained a special permit to construct Two Ledgemont Center on Parcel B.

4. The Center is served by a common road (“Common Road”), a private way that enters and exits the northern side of Parcel B at Spring Street, winds through Parcel A and along the boundary of Parcels A and B, and then enters and exits Parcel B at Hayden Avenue. A number of other internal roadways connect the Common Road and parking areas across the Center.

5. At all material times in this case, One Ledgemont held title to Parcel A, which contains the One Ledgemont Center building and associated parking garage. On January 27, 2014, 128 Spring Street Lexington, LLC acquired 100 percent of the interest in Parcel A from One Ledgemont. For purposes of this decision, I refer to the plaintiff as “One Ledgemont” notwithstanding the transfer of interest and substitution of parties (see note 2).

6. 95 Hayden currently owns Parcel B, which contains the Two Ledgemont Center building and associated parking garage.

7. Prior to 95 Hayden’s ownership, Two Ledgemont LLC (“Two Ledgemont”) held title to Parcel B.

8. On September 23, 1986, the owners of Parcel A (then the trustees of Ledgemont Realty Trust) and the owners of Parcel B (then Ledgemont Research Park Associates II LP) entered into an agreement (“1986 Agreement”) concerning easements and related matters, which is recorded in the Middlesex County (Southern District) Registry of Deeds (“Registry”) at Book 17502, Page 18. An August 15, 1986 “Easement Plan of Land” was recorded at the Registry as Plan 1456 of Plan Book 1986. [Note 5]

9. The 1986 Agreement operated to modify earlier easement and common road agreements that had been created in 1984.

10. One Ledgemont was the successor in interest to the Ledgemont Realty Trust trustees, the Parcel A owners that executed and recorded the 1986 Agreement. 95 Hayden is, by way of Two Ledgemont, the successor in interest to Ledgemont Research Park Associates II LP, the Parcel B owner which executed and recorded the 1986 Agreement. The 1986 Agreement is binding on the current owners of Parcel A and Parcel B, and remains in force.

11. The 1986 Agreement provides, in relevant part:

The Parcel B Owner shall from time to time maintain the Common Road in a good and serviceable condition for use by persons occupying portions of Parcels A and B. The cost of maintaining, repairing and reconstructing the Common Road, including appurtenant lighting and drainage facilities, shall be shared among the Parcel A and Parcel B Owners in proportion to the net square footage of floor space of completed buildings, as reflected in the records of the Lexington Building Department, located on Parcels A or B.

12. The 1986 Easement Agreement further provides:

At the election of any owner of all or any portion of Parcels A or B and with the consent of the other owner(s), such consent not to be unreasonably withheld or delayed, such owner may cause the Common Road to be relocated to a location reasonably convenient to all users and such as not to interfere materially with the use any owner is then making of a Parcel or portion thereof.

13. The Common Road defined by the 1986 Agreement crosses both Parcels A and B, and consists of several easements detailed on the plans accompanying the 1986 Agreement. Several of the agreement’s defined easements also are utility easements for the benefit of Parcel A or Parcel B.

14. The easement identified as 14-B on Parcel B (“Easement 14-B”) begins at the left turn near the Spring Street entrance, curves to the east and then south, and continues down to the southeast over Parcel B and through the location where the Three Ledgemont building is to be constructed.

15. Easement 14-B benefits Parcel A, but “may be terminated at any time by the owner of Parcel B.”

16. The roof level of the One Ledgemont garage currently is accessed by a ramp proceeding from the roof of the garage (on Parcel A) to a location on Parcel B where it connects with to Easement 14-B. Although the ramp benefits Parcel A, but is partially situated within Parcel B, it is not an easement defined by the 1986 Agreement, nor any other written agreement.

17. The zoning regulations for a “Planned Commercial Development” (“CD District”) in the town of Lexington are set forth in a preliminary site development and use plan voted by the Town Meeting for each such district.

18. The CD District “is intended to be a district to permit considerable flexibility in the development of land for commercial or mixed-use purposes without predetermined standards. The CD District procedure is intended to permit the Town Meeting to approve development standards unique to a particular location and not applicable to other locations in the town. Where land not now zoned for commercial development is proposed for new commercial development, it is intended that the CD procedure be used rather than rezoning to one of the standard commercial zoning districts.” Lexington zoning bylaws at §135-2(C)(2)(h).

19. As the zoning bylaws provide, “[n]o use is permitted and no development may occur in a CD District except in conformity with a preliminary site development and use plan approved by the Town Meeting, the provisions of [§135-42] and a special permit with site plan review granted by the SPGA [Special Permit Granting Authority].” Lexington zoning bylaws at §135-42(B)(3).

20. In 2008 and 2009, the Beal Companies managed the properties for both One Ledgemont and Two Ledgemont. At this point in time, the Beal Companies also held minority membership interests in both One Ledgemont and Two Ledgemont, but the majority partners of One Ledgemont and Two Ledgemont comprised different entities.

21. In 2008 the Beal Companies engaged BSC Group (a civil engineering firm), Warner Larson Associates (a landscape architecture firm), TRO Jung Brannen (an architecture firm), LEC Environmental Consultants, Inc. (an environmental consulting firm), and a local attorney (collectively, “Design Team”) to create plans for a proposed third building at the Center (“Three Ledgemont”) and to prepare an application that would rezone the Center.

22. Peter Nichols, a member of the Design Team and a senior vice president at the Beal Companies at that time, testified that One Ledgemont and Two Ledgemont designed the Three Ledgemont project so that Parcel A and Parcel B would need to rely upon each other and work together to accommodate traffic.

23. The rezoning process for the Three Ledgemont project involved a significant monetary investment by the Beal Companies, but Mr. Nichols, a lead representative in the pursuit of the necessary approvals, acknowledged that the rezoning was ultimately meant to add value to the Center, which the Beal Companies could capitalize on from a management perspective and as an interest holder in the Three Ledgemont project. Mr. Nichols characterized the details of the easements as “something to worry about . . . later.”

24. Between December 2008 and the Town Meeting in May 2009, members of the Design Team and representatives from One Ledgemont, Two Ledgemont, and the Beal Companies met with town officials, boards, and abutting neighbors regarding the development plan. In total, One Ledgemont and Two Ledgemont presented their proposed development plan at five meetings with the board of selectmen; at six meetings with the planning board that included five hours of public comment; at four meetings with the conservation commission; and at multiple sessions with each of the appropriations committee, the design advisory committee, traffic mitigation group, the transportation advisory committee, as well as various town officials and staff.

25. In April 2009, One Ledgemont and Two Ledgemont—with the help of the Design Team—jointly submitted a final application to the Town of Lexington to rezone the Center and to have Town Meeting approve a Preliminary Site Development and Use Plan (“PSDUP”) application for the development of Three Ledgemont.

26. The proposed Three Ledgemont building would contain 162,000 gross square feet and include an enclosed underground parking garage. The building is zoned for both office and laboratory use. The proposed Three Ledgemont building itself would sit entirely on Parcel B.

27. The PSDUP provided that 415 new parking spaces would be created for the Three Ledgemont project. They comprise fifteen on-grade spaces and 400 spaces within the Three Ledgemont garage. The fifteen on-grade spaces are to be located on Parcel A. Five of them will be near the entrance to the Three Ledgemont building (but still on Parcel A), and ten near the northwestern side of the One Ledgemont garage (also on Parcel A).

28. According to the PSDUP, the Three Ledgemont project also contemplated a new access driveway, a sidewalk, and a portion of the passenger “drop-off” area to be located on Parcel A.

29. Portions of the Common Road (as defined in the 1986 Easement Agreement) on Parcel A were to be relocated for access to the Three Ledgemont garage and access to the surface parking spaces on Parcel A, according to the submitted plans. In particular, they contemplate that:

a. The 14-B Easement will be eliminated, and the ramp to the roof level of the One Ledgemont garage (which currently connects to 14-B) will be relocated.

b. The portion of the 10-A-3 easement that runs from Spring Street to the One Ledgemont garage will be widened from twenty feet to twenty-two feet, and will be opened to two-way traffic.

c. The current portion of the Common Road (a portion of easement 10-A-3) that runs through the One Ledgemont garage will be moved to a location outside the garage but parallel to the existing road. The portion of the roadway outside of the garage will accommodate ten parking spaces and new trees and shrubs planted along the roadway.

d. The Common Road would then continue to the Three Ledgemont entrance, which will include a turn-around circle and five on-grade parking spaces, largely on Parcel A.

e. The proposed ten parking spaces along the outside of the One Ledgemont garage, and the five parking spaces off the turn-around, together comprise the fifteen disputed parking spaces at the center of this litigation.

f. On the eastern side of the One Ledgemont garage, portions of the Common Road (within the 10-A-3 and 10-B-1 easements) will be modified, presumably to accommodate the removal of the One Ledgemont garage ramp.

g. The Common Road along the eastern side and at the southeast corner of the One Ledgemont garage will be relocated slightly closer to the garage.

30. The PSDUP expressly required that the parties record a new easement if parking spaces required for the Three Ledgemont Project needed to be located on Parcel A:

Parking spaces required for one lot may be located on a separate lot, which may be in separate ownership, without a special permit . . . so long as an easement guaranteeing long-term use of such spaces is executed and recorded in the Registry of Deeds of Middlesex County.

31. The PSDUP also provided that a “driveway on one lot may lead to a parking space or loading bay or other improvements on another lot . . . so long as a binding agreement is executed and recorded in the Registry of Deeds of Middlesex County.”

32. On May 4, 2009, the Lexington Town Meeting approved the PSDUP, rezoning the Center, including all of Parcel A and Parcel B, in a new zoning district designated CD-14.

33. At this time, One Ledgemont and Two Ledgemont had not negotiated or recorded any new easements since the 1986 Agreement.

34. Following the successful rezoning of the Center, the Beal Companies began looking for a tenant for the Three Ledgemont Project. At some point in 2012, unable to secure a tenant, and without an imminent need to expand into a third building, the Beal Companies, One Ledgemont, and Two Ledgemont all suspended work on the Three Ledgemont Project.

35. At that time in 2012, Two Ledgemont had an outstanding mortgage (then held by JPMorgan Chase Bank N. A. by assignment) encumbering Two Ledgemont’s property, securing a loan in the amount of approximately $30 million, and a mezzanine loan in the amount of approximately $14 million made by AG Ledgemont Lender, LLC (“Angelo Gordon”).

36. In 2012, Angelo Gordon, the holder of the mezzanine loan, accelerated its maturity. At this point, the members of Two Ledgemont needed either to invest the money needed to pay off the mezzanine loan, or allow the lender to exercise its remedies. The members decided to default. After the default, the Beal Companies continued to manage the Two Ledgemont property but no longer had any interest in the ownership of Two Ledgemont as a result of the lender’s exercise of its rights.

37. Having obtained ownership of Two Ledgemont upon default of the loan, Angelo Gordon commenced an auction process intended to lead to the sale of Parcel B. In the marketing process, Angelo Gordon represented to potential buyers, including 95 Hayden, that Two Ledgemont LLC was the “Project Owner” of “an approximately 202,492 square foot office building and development site known as 2 and 3 Ledgemont Center,” and that a “portion of the 2 Ledgemont Center site has been successfully rezoned to allow for a new four-story, 150,000 to 160,000 square foot office and/or research building, to be known as 3 Ledgemont Center.”

38. Prior to the auction, in May or June of 2012, the president of Hobbs Brook Management, LLC, an affiliate of 95 Hayden, asked Kevin Gammons, its chief legal officer, to perform due diligence to evaluate any legal issues relating to the potential acquisition of Parcel B following the Two Ledgemont lender’s exercise of its remedies.

39. In response, Mr. Gammons contacted outside counsel, DLA Piper, and asked them to start the due diligence for Parcel B related to its potential acquisition as a result of the auction process the lender was pursuing in exercise of its remedies.

40. Attorneys from DLA Piper, as well as Mr. Gammons, reviewed all the publicly available documents gathered for due diligence, including the 1986 Easement Agreement, recorded deeds relating to Parcel B, the PSDUP approved by town meeting, and the accompanying documents filed with the Town of Lexington.

41. Mr. Gammons testified that he read and understood the provision in the PSDUP that required an easement in the event parking spaces for Parcel B were located on Parcel A, and that he understood 95 Hayden needed to obtain and record the necessary easements before moving forward with construction. Mr. Gammons referred to this process as a “formality.”

42. 95 Hayden acquired title to Parcel B by deed dated July 27, 2012 and recorded with the Registry at Book 59615, Page 289.

43. Despite understanding from the PSDUP that the Three Ledgemont Project would involve–indeed, require--cooperation with One Ledgemont, no one at 95 Hayden or its affiliate, Hobbs Brook, made any contact with anyone from One Ledgemont or the Beal Companies prior to acquiring Parcel B.

44. In or around August of 2012, Mr. Gammons met with Mr. Peter A. Spellios, general counsel and senior vice president at the Beal Companies at that time, for an initial meeting. Although Mr. Gammons informed Mr. Spellios of 95 Hayden’s intent to move forward with the Three Ledgemont Project, neither party pressed for discussion of the easements required for parking on Parcel A.

45. Mr. Gammons and Mr. Spellios met several more times in the Fall of 2012 regarding management of the Two Ledgemont building, but both men testified that there was no further discussion of the Three Ledgemont Project or the easements required to proceed with the Three Ledgemont Project.

46. Instead of first pressing One Ledgemont to engage in easement negotiations, Mr. Gammons, or other representatives of 95 Hayden, contacted the members of the Design Team that worked on the PSDUP, and engaged them to prepare a Definitive Site Development and Use Plan (“DSDUP”) and special permit application to file with the Board.

47. In September 2012, Mr. Gammons asked Mr. Rinaldi (a member of the Design Team who worked on the PSDUP) about what needed to be done to proceed with the Three Ledgemont Project. Mr. Rinaldi sent Mr. Gammons an e-mail acknowledging that the PSDUP’s required easements had been left for future negotiations with the Beal Companies.

48. Mr. Gammons also requested from the Design Team a summary of remaining items to be completed with respect to the Three Ledgemont Project. In response to his request, Mr. Rinaldi sent an e-mail detailing that the Three Ledgemont Project would require a new easement, or a modification of existing access/utility easements, for construction of a new access driveway, sidewalk, fifteen parking spaces, and a portion of the drop-off area for Three Ledgemont.

49. At this point, it was clear to Mr. Gammons and the principals at Hobbs Brook and 95 Hayden that the Three Ledgemont Project required securing easements and other cooperation and approvals from One Ledgemont. Nonetheless, on October 12, 2012, 95 Hayden submitted an application to the Board for a special permit, site plan review, and approval of the DSDUP for the Center. The principals at Beal Companies and One Ledgemont only learned of 95 Hayden’s intent to proceed with the Three Ledgemont Project because, as abutters to the proposed Three Ledgemont project, they received notice by mail from the Board as required by statute, see G.L. c. 40A, §11.

50. Following receipt of the abutter’s notice, Mr. Spellios contacted Mr. Gammons on behalf of One Ledgemont. Mr. Spellios suggested postponing the hearing so that the parties could resolve any issues associated with the Three Ledgemont Project, including negotiating the required easements.

51. Mr. Gammons subsequently met with Mr. Spellios and broached the subject of resolving the easement issues. Mr. Spellios said he needed more time to familiarize himself with the Three Ledgemont Project and to discuss the easements with One Ledgemont’s investors. Without the possibility of quickly negotiating the required easements prior to the hearing, Mr. Gammons declined to postpone.

52. After their meeting, Mr. Gammons sent Mr. Spellios an e-mail containing a list of items for the Three Ledgemont Project that affected One Ledgemont, including the requirement of new easements. After this exchange, Mr. Spellios engaged in one or two more discussions with representatives from 95 Hayden about the Three Ledgemont Project, but no substantive decisions were made and no easements were negotiated, granted, or recorded.

53. One Ledgemont (through counsel) sent a letter to the Board asking that the hearing be postponed, explaining that it did not consent to or authorize any access to or development of its property. Counsel for One Ledgemont also attended the hearing to reiterate this request.

54. The Board declined to postpone the hearing, and on November 8, 2012, voted to approve the DSDUP and to grant the special permit with site plan review for the Three Ledgemont project.

55. As permitted by the Board, the Three Ledgemont building itself is sited on Parcel B, but requires changes on Parcel A including: relocation of portions of the Common Road, relocation of the ramp to the upper level of the existing parking garage, fifteen or more surface parking spaces, a semi-circular parking area to be constructed near the One Ledgemont building, landscaping, sidewalks, and other associated improvements.

56. As part of the Three Ledgemont project, 95 Hayden proposes to relocate the Common Road that provides access to the One and Two Ledgemont properties by eliminating the northerly leg of the Common Road (which currently provides the most direct access to the Two Ledgemont garage), relocating the Common Road on One Ledgemont’s property adjacent to the parking garage, and adding a circular drive in front of the entrance to the Three Ledgemont building.

57. The 415 required parking spaces are not needed for compliance with other zoning bylaws of general applicability in Lexington, but were adopted as a requirement for the Three Ledgemont project by the Town Meeting, and are therefore required for compliance with the terms of the DSDUP.

58. Patrick T. Dunford is a transportation engineer with Vannasse Hangen Brustlin, Inc. Mr. Dunford testified as an expert witness for One Ledgemont. Mr. Dunford conducted a supply and demand study for the Three Ledgemont project based on data from the Institute of Transportation Engineers’ manual Parking Generation (4th ed.), and estimated that there will be an average expected demand of 433 parked vehicles, eighteen fewer spaces than the current plans require. I find this testimony credible and persuasive and accept it.

59. Two Ledgemont’s garage cannot accommodate overflow parking on Parcel B because it already is at capacity on a daily basis, using a valet service to stack cars in the aisles of the garage when there are not enough striped parking stalls available.

60. There was no plan submitted by 95 Hayden with its application for a DSDUP that depicted the dimensions and locations of the proposed 400 garage parking spaces for the Three Ledgemont Project. Joseph Gloski (an architect and a member of the Design Team who worked on both the PSDUP and the DSDUP) created the parking calculations for the Three Ledgemont Project. Mr. Gloski admitted that his garage parking plans for the Three Ledgemont garage did not meet the requirements of the zoning bylaw, which requires that the width of the parking space must be twelve-feet when at least one of the long sides of a parking space abuts a wall or similar obstruction. I accept this testimony.

61. By January 2013, Mr. Gloski was unable to determine whether even 400 parking spaces (fifteen short of the DSDUP’s required 415 spaces) could fit in the Three Ledgemont parking garage and still comply with the zoning bylaw.

62. The Three Ledgemont Project must provide a total of 415 parking spaces, either entirely on Parcel B, or partially on Parcel A by grant of easement, to comply with the zoning requirements imposed by the DSDUP.

63. In February of 2013, 95 Hayden commissioned a construction proposal for the Three Ledgemont Project without recording any new easements or modifications of any existing access or utility easements with One Ledgemont, but halted development at the filing of this action.

64. The DSDUP proposes to eliminate the northerly leg of the Common Road so that any vehicle entering the Center from Spring Street must continue past the One Ledgemont garage before entering the proposed Three Ledgemont garage.

65. Lexington zoning bylaw §135-73(A) requires the Board to determine that the streets and intersections likely to be affected by a project operate at a level-of-service D or better. [Note 6]

66. The BSC Group analyzed morning and afternoon peak-hour levels of service at eight nearby intersections selected by the Town. BSC determined that five of the eight intersections currently were operating at a level-of-service F.

67. Pursuant to § 135-73(C) of the Lexington zoning bylaws, developers can adopt mitigation measures to improve traffic carrying capacity. The DSDUP incorporates a Traffic Demand Management Plan and a Traffic Mitigation Plan, which include mitigation measures such as: alternative transportation options; traffic management funding; naming a transportation coordinator; describing commitments made by other development projects in the area; providing bus service to and from Alewife Station; and providing financial support for the Lexpress bus service.

68. Charles Kalauskas, a traffic engineer with the BSC Group, testified that implementation of these mitigation measures will allow the area around the Center, including Spring Street and Hayden Avenue, to accommodate additional traffic and operate at a level-of-service D or better. Although BSC’s 2012 findings relied on data collected for the 2008 PSDUP, I generally credit Mr. Kalauskas’s opinions. In particular, he testified that the traffic volumes around the Center did not materially increase from 2008 to 2012. Moreover, Patrick Dunford (One Ledgemont’s traffic witness) did not seriously challenge BSC’s 2012 study, and there is scant evidence (if any) refuting Mr. Kalauskas’s opinions about the levels of service.

69. Construction of the Three Ledgemont project will require blasting ledge. Both One Ledgemont and Two Ledgemont were aware of this fact during their joint promotion of the project prior to the May 2009 Town Meeting.

IV. DISCUSSION

At issue in this case is 95 Hayden’s right to reconfigure the common roadway, and to construct fifteen parking spaces on One Ledgemont’s property. The court first confronted these issues on cross motions for summary judgment, and, while unable then to resolve the entire litigation as matter of law, made several rulings of law on undisputed facts that govern the decision in this case. Nothing in the subsequent proceedings in this case, including at trial, have caused me to depart from the rulings made on summary judgment.

A. The Summary Judgment Rulings.

First, the court ruled that the only source of record rights that potentially could allow 95 Hayden to use One Ledgemont’s property for the challenged development is the 1986 Agreement. [Note 7] Second, the court ruled that, under the 1986 Agreement, relocation of the common road is permitted with the consent of the owners of both Parcel A and B, provided the relocation is “reasonably convenient to all users” and does not “interfere materially with the use any owner is then making of a Parcel or portion thereof.” (The questions whether a relocation is reasonably convenient, and whether it will cause a material interference, given their factual intensity, were to be determined following trial.) Third, the court ruled there is nothing in the 1986 Agreement that expressly permits 95 Hayden to construct or maintain parking spaces on the land of One Ledgemont. This ruling was without prejudice to 95 Hayden’s opportunity to demonstrate at trial the existence of a non-record right with an origin in the transactional history of the parties and these properties. Fourth, the court concluded that, although no language in the 1986 Agreement expressly permits the proposed connection between the relocated common road and the upper level of the parking garage structure, nothing in the 1986 Agreement precludes such a connection. This is because the clear purpose of the 1986 Agreement was to provide for a common road that would connect all parcels on the campus, including the parking garage, and provide access to the public way. The question whether the specifics of such a connection are reasonable in light of the circumstances also was reserved for trial. This same principle applies to the terraced ledge alongside the proposed relocation of the common road from its current location within the garage to a route outside garage, and the proposed landscaping. [Note 8]

In light of the court’s rulings on summary judgment, the issues preserved for trial were:

(1) whether the proposed relocation of the common roadway meets the standards set out in the 1986 Agreement; (2) whether 95 Hayden has the right to construct fifteen parking spaces on Parcel A; (3) whether the garage ramp relocation, and the terraced ledge and other work in connection with the road relocation, is reasonable under the 1986 Agreement; and (4) de novo review of the special permit and related approvals in the Decision. If 95 Hayden does not have the easements or property rights necessary to construct and maintain on Parcel A all the material project features required by the PSDUP, then 95 Hayden’s counterclaims for breach of contract fail, and the approval of the DSDUP by the Board was legally untenable. For that reason, instead of starting with the familiar, if “‘peculiar’ combination of de novo and deferential analyses,” Wendy’s Old Fashioned Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), normally applied to special permit review, I start with the question of the property rights.

B. The Fifteen Parking Spaces.

The Three Ledgemont project requires 415 parking spaces. The garage will park 400 (or at least 399) vehicles. The remaining fifteen required parking spaces are to be located as surface parking on Parcel A (on the Spring Street side of the One Ledgemont garage), located outside the entrance to the proposed Three Ledgemont building. 95 Hayden has no recorded easement that allows them to construct or maintain these crucial fifteen parking spaces. To get past this, 95 Hayden argues that “One Ledgemont LLC’s conduct when it designed and promoted the PSDUP is a representation that [95 Hayden] relied upon. Plaintiff is estopped from repudiating its prior conduct and the Three Ledgemont project[,]” and [“t]he joint petition, its detailed plans defining the scope and design of the parcel uses, the provisions of the PSDUP, and the circumstances of the transaction constitute a covenant that runs with the land and binds One Ledgemont LLC to honor it.” One Ledgemont counters that 95 Hayden simply failed to obtain the easement they required, and that any reliance by 95 Hayden on the actions of One Ledgemont during the PSDUP process is not reasonable because everyone knew no easement existed (beyond the 1986 Agreement), and the PSDUP expressly requires an easement for parking be obtained. 95 Hayden uses the transactional and developmental history of the property involved, and plaintiff’s participation in it, to set up a case for estoppel. 95 Hayden urges the court to find the plaintiff estopped, relying on general principles of equitable estoppel and, more specifically, on a theory that an easement for the disputed parking has arisen by estoppel. 95 Hayden also invokes equity and estoppel in responding to One Ledgemont’s position that, because no written easement for the parking spaces ever was executed, the statute of frauds prevents judicial recognition of any such appurtenant perpetual parking easement.

1. Estoppel.

Section 1 of G. L. c. 259, the so-called “statute of frauds,” provides that “[n]o action shall be brought. . . [u]pon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them. . . [u]nless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.” Nevertheless, in appropriate cases, a party’s “detrimental reliance on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds as a defense.” Nessralla v. Peck, 403 Mass. 757 , 762 (1989). A court may order specific performance despite the absence of a written agreement to remedy “the infliction of an unjust and unconscientious injury and loss.” Id. The Appeals Court has observed that “[w]hile earlier Massachusetts decisions laid down somewhat strict requirements for an estoppel precluding assertion of the Statute of Frauds, more recent decisions indicate a trend on the part of the Supreme Judicial Court to find that the circumstances warrant specific performance.” Hurtubsie v. McPherson, 80 Mass. App. Ct. 186 , 190 (2011) (internal quotations and elisions omitted). [Note 9]

More generally, “[c]ircumstances that may give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.” Bongaards v. Millen, 440 Mass. 10 , 15 (2003); citing Cleaveland v. Malden Sav. Bank, 291 Mass. 295 , 297-98 (1935); Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119 , 123 (1992). The conduct of a party may amount to a representation. Renovator’s Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct. 419 , 426-27 (2008). Estoppel is properly applied when “in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct.” Moran v. Gala, 66 Mass. App. Ct. 135 , 141 (2006). “The doctrine of estoppel is not applied except when to refuse it would be inequitable.” Sullivan v. Chief Justice for Admin. & Mgmt., 448 Mass. 15 , 28 (2006). “All of the elements of estoppel must be present and the party asserting the estoppel theory has a heavy burden to prove that all three elements are present.” Id. (internal citations omitted). I turn now to the three elements of estoppel.

a. Representation Intended to Induce Reliance

I accept 95 Hayden’s view that the work of the Design Team, employed by Beal Companies on behalf of both One Ledgemont and Two Ledgemont, constitute representations or conduct amounting to representations intended to induce reliance. See Renovator’s Supply, Inc. v. Sovereign Bank, supra, at 426-27. The Design Team was configured and engaged by the Beal Companies. Regardless of the corporate form chosen for One and Two Ledgemont, and their distinct investors, it was the Beal Companies ultimately calling the shots. The goal of the rezoning and the Three Ledgemont project was not to benefit exclusively the Parcel B owner, but to improve and increase the value of the Center overall, and also, ultimately, to profit the Beal Companies and enhance Beal’s ongoing role in managing the Center and providing good returns to the LLCs’ investors. It always was apparent to the Design Team, to One and Two Ledgemont, and to Beal that the rezoning was a joint venture. Cumulatively, this conduct, within the context of these interrelationships, allows me to accept that there was effectively a representation that One Ledgemont, the Parcel A owner, would allow the Parcel B owner to construct and maintain the fifteen required parking spaces on Parcel A, albeit as part of overall terms conducive to the interests of all the owners within the Center, including One Ledgemont.

b. Act or Omission In Reasonable Reliance

Notwithstanding that representations of a general nature were in effect made by One Ledgemont to Two Ledgemont that the parking spaces would be allowed on One Ledgemont’s Parcel A, to the extent that 95 Hayden relied on those representations, such reliance was entirely unreasonable. Well before purchasing Parcel B, 95 Hayden and its principals were fully aware that Parcel B lacked the property rights required to develop the Three Ledgemont project. But instead of reaching out to One Ledgment, 95 Hayden chose instead a strategy of avoidance and willful ignorance, rashly banking on later forgiveness and aid from the courts, instead of timely permission from One Ledgemont. I find that 95 Hayden and Hobbs Brook deliberately elected, when making their initial investment in Parcel B, to avoid, studiously, going to the Beal Companies and One Ledgemont. The Hobbs Brook parties deliberately decided not to ask the hard questions about the missing easement rights. This strategy is not one which moves the court--or even allows it--to reward 95 Hayden with the equitable remedy it seeks.

95 Hayden was on notice that it lacked the property rights it needed to develop the Three Ledgemont project. 95 Hayden knew that before it purchased. Kevin Gammons was given the task of performing due diligence concerning the potential acquisition of Parcel B, and he quickly uncovered the PSDUP and the 1986 Agreement, both of which easily were available to the public. The plans accompanying the PSDUP clearly depict the fifteen parking spaces on Parcel A. The PSDUP expressly requires recorded easements. And the 1986 Agreement shows that, notwithstanding the united appearance of the Center, mutual easements were required because the Center comprised separate and severable parcels in distinct ownership. The court will not allow invocation of estoppel in a situation where the party claiming reliance was aware of facts that belie the representation upon which it relies. In Bongaards v. Millen, supra, in the context of determining whether trust assets should be considered part of the defendant’s estate, the SJC declined to apply estoppel in a way that would have treated trust property as owned individually. 440 Mass. at 15-16. Even taking as true the “plaintiff’s assertions that [defendant] conducted the management of the property as an individual, filed income taxes on the property as an individual, and obtained insurance on the property as an individual,” the SJC reasoned, the fact that “the plaintiff has conceded that he fully understood that [defendant] held the property in trust for the children and grandchildren” prevented the plaintiff from establishing a claim based on equitable estoppel. Id. The same principle applies here. 95 Hayden’s claimed reasonable reliance is undone by its actual knowledge.

This is not, I find, a case where One Ledgemont and Two Ledgemont had a specific and carefully considered deal struck, but where all that remained was to sign the papers and complete the formalities of execution. That would constitute a very different circumstance, and the court would find it inequitable not to enforce the settled but imperfectly memorialized agreement. Although Mr. Gammons testified that his understanding was that the parties had “agreed” to the easements required by the PSDUP, and that all that remained was to memorialize and record the easements, I take a different view of the facts.

Cases like McCarthy v. Tobin, 429 Mass. 84 (1999) are different. They deal with situations where the written agreement, although by its terms requiring further action and documentation, in fact existed in its essentials, the parties having exchanged mutual promises covering all or substantially all material terms. In McCarthy v. Tobin, the SJC observed: “Although the provisions of the purchase and sale agreement can be the subject of negotiation, ‘norms exist for their customary resolution.’” 429 Mass. at 88 (quoting Goren v. Royal Invs. Inc., 25 Mass. App. Ct. 137 , 141 (1987)). The McCarthy court went on to say, “[i]f parties specify formulae and procedures that, although contingent on future events, provide mechanisms to narrow present uncertainties to rights and obligations, their agreement is binding.” Id. (quoting Lafayette Place Assocs. v. Boston Redevelopment Auth., 427 Mass. 509 , 518 (1998)). Here, while One Ledgemont had pursued permitting of future development that contemplated fifteen parking spaces to be located on its property, and the location and dimensions of the parking spaces were laid out in some detail, many questions of a material nature remained unresolved. There was no amount of consideration agreed to be given to One Ledgemont for the burden it would shoulder in having these spaces, benefiting the other parcel, exist in perpetuity on Parcel A. Nor was there any deal struck concerning the maintenance, insurance, liability, and upkeep costs and obligations these spaces would generate. Agreements as to these important issues were not the subject of any discussion, much less any firm agreement, between the lot owners; the resolution of them is not prescribed in any manner by the PSDUP. Unlike in McCarthy v. Tobin, here the actual execution and recording of easement agreements was, I find as a factual matter, much more than a mere formality. And unlike a single family residential real estate conveyance, there are not necessarily “customary norms” the parties fairly could assume would apply to prescribe the details of the required parking easements.

The problem of the outstanding and unaddressed details still to be negotiated presents itself again when considering the issue of remedy. Unlike McCarthy v. Tobin, supra, where the offer to purchase contained sufficient terms to allow specific performance, here, assuming estoppel were to be applied against One Ledgemont, it is not at all demonstrated on what terms One Ledgemont would be required to convey an easement. This is more than a small problem. Cf. Goulding v. Cook, 422 Mass. 276 , 278 (1996) (reversing Land Court judgment to grant a permanent easement “at a price to be negotiated by the parties and with provisions for maintenance, repair and replacement as counsel so agree.”). It is also worth noting that, instead of ironing out the details of the necessary easements, it was 95 Hayden that pushed forward with the DSDUP determination and permitting beofre the Board over One Ledgemont’s objection and request to postpone. 95 Hayden cannot now claim unfairness that they lack the easements they need.

One Ledgemont argues that no representations were made to 95 Hayden, that any representations were between One and Two Ledgemont. I am not troubled by 95 Hayden stepping into the shoes of Two Ledgemont for purposes of asserting reliance. [Note 10] The other side of this, however, is that 95 Hayden is also bound by the reasonableness (or not) of its predecessor. It was (or should have been) apparent that One and Two Ledgemont were being somewhat indefinite and imprecise in their dealings as adjoining property owners, deferring many important matters to later negotiation, resolution, and documentation—no doubt because of their mutual interests and relationships to and with the Beal Companies—and that their “deal” would not have passed muster if anyone had been scrutinizing it. I have no doubt that if the involuntary transfer of interest had not taken place when the lender stepped in, and the Three Ledgemont project instead went forward with a Beal entity in control, there would have been meaningful substantive negotiations among the interested parties to produce final definitive easement agreements. Certainly, lenders, investors, and influential tenants would have insisted on that before putting their funds at risk. Peter Nichols, a member of the Design Team, characterized the easements as “something to worry about later,” and I believe that is the view he took. While the One and Two Ledgemont entities and properties remained under the Beal umbrella, the Design Team, and One and Two Ledgemont simply were not worried about hammering out the many important facets of mandated easement agreements.

As subsequent events reveal, they should have been worried. At the time, Parcel B was subject to a $30 million mortgage and the $14 million mezzanine loan, a default on either of which could have resulted in ending the commonality of interest under which Parcel A and Parcel B were held, and doing so without the property rights necessary to develop Three Ledgemont on Parcel B. The 1986 Agreement, in fact, is evidence of the fact that, notwithstanding the mutuality of interest in the parcel owners, at one point they recognized the need to memorialize and formalize the mutual easements--precisely because the Center comprised separate and severable parcels. Such a severance is, in fact, exactly what happened, and the situation that 95 Hayden now finds itself in was entirely foreseeable. Standing in the shoes of Two Ledgemont, 95 Hayden shares in the responsibility of not securing its easements. Applying estoppel against One Ledgemont indulges and rewards this “worry about it later” attitude. [Note 11]

To be clear, One Ledgemont has—as 95 Hayden characterizes it in its briefing—“flip-flopped” on the fifteen parking spaces. The problem with this argument is that a “flip-flop” is simply a change of mind, something One Ledgemont is free to do, and something 95 Hayden could have prevented by timely insisting upon a meaningful written easement agreement. 95 Hayden tries to characterize One Ledgemont’s change in position as being like that in Moran v. Gala, 66 Mass. App. Ct. 135 (2006). In that case, the Appeals Court estopped the plaintiffs from pursuing an adverse possession claim where Mr. Moran, one of plaintiffs, was the attorney who represented the seller of the land to the Galas, the defendants--land the Morans then claimed by adverse possession. 66 Mass. App. Ct. at 137-38. In finding that Mr. Moran was estopped to pursue later this adverse possession claim against the Galas, who had purchased from Moran’s clients, the Appeals Court relied on the natural inferences to be drawn from the plaintiffs’ conduct, coupled with the Morans’ silence. Id. at 140. Specifically, the Appeals Court looked to Moran’s conduct of preparing a deed that contained a specific property description--the very property description he prepared contained land to which he later laid claim by adverse possession. Id. At first glance, these facts sounds much like the case at bar. There are, however, important differences that distinguish Moran v. Gala.

In Moran, the plaintiff claimed title to the property held of record by another, and he was estopped from taking a position contrary to what the record title showed, and to what was contained in his own writings—the deed he drafted and the title insurance affidavit he tendered. Here, it is 95 Hayden, and not One Ledgemont, that asserts such a right in the property of another. The problem for 95 Hayden is that there is no written easement. [Note 12] 95 Hayden presses estoppel not so much as to prevent One Ledgemont from walking away from a position it took in writing (like in Moran), but more to compel One Ledgemont unwillingly to be a party bound by an unwritten easement never worked out and never executed.

Further, in Moran, it was proper to invoke the doctrine of equitable estoppel to protect the Galas, faced with the adverse possession claim brought by the Morans only after the Galas purchased, based on Mr. Moran’s prior representations that there was no basis on which adverse possession was warranted. In that case, the Galas had no reason to know, when they took their record title, of any facts supporting the adverse possession claim later advanced by the Morans. There was nothing public (or otherwise) that would have given the Galas any reason to think the Morans had accrued by adverse possession title to the land the Galas bought. Moran was fully aware of facts supporting the adverse possession claim he and his spouse later pushed forward after the Galas purchased, and it was only equitable that the Morans be estopped from unfairly springing on the Galas a claim the Morans had kept from the Galas at the time they took their title. In the case now before me, the serious omission of any easement rights for the critical parking spaces was open and apparent to any potential purchaser, and fully known by Hobbs Brook and 95 Hayden. That One Ledgemont was resistant to granting the required easements was something the buyers would have learned had they but asked, something they deliberately chose not to do.

Estoppel is an equitable doctrine, and it will only be applied when not to do so is inequitable. See Sullivan v. Chief Justice for Admin. & Mgmt., supra, at 28. Here, there is nothing inequitable about leaving the parties to their record rights.

C. The Relocation of the Common Roadway and Other Easements.

To the extent that 95 Hayden lacks the easement it needs to construct additional parking on Parcel A, the question of relocating the Common Road and the utility easements and appurtenances appears moot. But the issue was tried to the court and is fully briefed and otherwise ripe for decision. I conclude that nothing about any of the proposed relocations violate the 1986 Agreement, and will direct that One Ledgemont consent to the proposal. [Note 13]

The right to this relocation originates in the record title. The 1986 Agreement affords the parties an opportunity to move the roadway locations assigned at the time: “At the election of any owner of all or any portion of Parcels A or B and with the consent of the other owner(s), such consent not to be unreasonably withheld or delayed, such owner may cause the Common Road to be relocated to a location reasonably convenient to all users and such as not to interfere materially with the use any owner is then making of a Parcel or portion thereof.” As the court ruled on summary judgment, this agreed recorded right stands in direct contrast to any right to move parking spaces onto the land of the other owner, something the record title does not contemplate. It is to the record right to relocate the Common Road, as set out in the 1986 Agreement, that the court turns in evaluating whether the standards for relocation have been proved.

1. Reasonably Convenient and Without Material Interference.

Having considered the evidence concerning One Ledgemont’s reasonableness objections to the relocation of the internal easements, nothing in the testimony convinces me the relocated easements would fail to be “reasonably convenient” or would cause a material interference with One Ledgemont’s use of Parcel A. The evidence I credit shows that 95 Hayden has carried its burden on this issue.

A large source of concern for One Ledgemont appears to be the elimination of the 14-B Easement, and that without direct access to Two Ledgemont (by making a left onto the 14-B Easement from the Spring Street entrance to the Center), more traffic will be directed over the portions of the Common Road on Parcel A and in proximity to One Ledgemont. These concerns are not well taken. The express language of the 1986 Agreement allows for a unilateral termination of this particular easement by the owner of Parcel B, the burdened land, without any consent needed from the benefited land’s owner. The most likely reason is that the owners of Parcel A and Parcel B, at the time they negotiated the 1986 Agreement, identified the route of 14- B as the location of a potential third building at the Center.

Moreover, many of the proposed roadway relocations are direct consequences of the termination of Easement 14-B. For example, without Easement 14-B, the ramp to the roof level of the One Ledgemont garage must be relocated, because traffic using that ramp now travels over 14-B. Because the unilateral termination of Easement 14-B is allowed, it is difficult to conclude that relocating the ramp is unreasonable, and in fact, I reach the opposite conclusion.

Relocating the Common Road from the inside of One Ledgemont’s garage structure to the outside is surely a net benefit to One Ledgemont, and is not unreasonable or inconvenient. The current route of the Common Road through the garage produces inconvenience at least, with cars passing through forced to negotiate with vehicles maneuvering in and out of the parking stalls alongside the road, all within the constrained interior of the garage structure. Similarly, the modification of the Common Road at the southeast corner is minimal; the road will maintain essentially the same path, but move a few feet (if that) closer to the garage. There was no showing that I accept as a factual matter that this change is unreasonable or any less convenient than as now configured. Finally, I do not find that there will be any material interference with the One Ledgemont garage caused by the location of the road leading to the entrance proposed for the Three Ledgemont garage.

D. The Board’s Decision – Conformity With the PSDUP.

The challenged Decision rests, essentially, on a determination by the Board that the DSDUP substantially conformed to the PSDUP. This is a function, as discussed, of the rezoning that took place, which leaves the applicant for this permit closely constrained by the many detailed features of the rezoning plans incorporated, as part of the PSDUP, into the Town’s zoning laws. The project which is put in front of the Board must match up closely with the particulars approved during the rezoning, and it is the Board’s responsibility to make that side-by-side comparison.

The Decision also embodies, a special permit (with associated site plan approval) and that is what the court has under review in this zoning appeal. The standards for this de novo proceeding are well established. The court must review the factual record without deference to the board’s findings. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953); Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). This review is, however, circumscribed by the requirement to defer to the judgment of the local authority. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Gervk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co.. Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing an appeal under section 17 of G.L. c. 40A is not authorized to make administrative decisions. See Pendergast, 331 Mass. at 557-58; Gervk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).

It follows from these foundational principles that the court may overturn a decision of a local board only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt.. Inc., 40 Mass. App. Ct. at 246. It follows that where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

The Board’s decision approving the DSDUP cannot stand. This is because, first, 95 Hayden lacks essential and material property rights it requires to go forward with the project. What 95 Hayden must provide to comply with the PSDUP, it cannot. The DSDUP unequivocally requires 415 parking spaces, and 95 Hayden can build out, at most, 400. [Note 14] This makes the Board’s Decision legally untenable, and requires the court to direct that the Decision be annulled and that the permit the Board issued be overturned.

Given this determination, there appears to be little need to address at length other aspects of the appeal the plaintiff has lodged against the Decision. Without the needed parking spaces, the planned project cannot align, as it must, with this material requirement of the Town Meeting’s rezoning. Any new project, with different plans, will have to be considered afresh. But, given that the case was tried on the question whether the Board’s Decision was a legal and proper one–a question that, but for the unavailable parking spaces, the court would otherwise need to decide–it is appropriate to address at least briefly the main remaining grounds on which One Ledgemont attacks in this case the Board’s Decision.

One of One Ledgemont’s additional challenges does have merit. Apart from arguing that 95 Hayden could not lawfully receive its permits because it lacks the title rights to place 15 spaces on One Ledgemont’s land, the plaintiff also complains about the general lack of parking sufficient to serve the new building. The plaintiff contends that the provision of only 400 spaces on Parcel B for users of the new Three Ledgemont facility will underserve it, because more than 400 cars using the new building will need to park. One Ledgemont contends that this will force Three Ledgemont parkers onto One Ledgemont’s land, where they will use, without permission, the One Ledgemont spaces, including in the One Ledgemont garage.

This contention does find support in the facts as I find them. I do credit Mr. Dunford’s conclusion that the new building will, on average, bring around 433 parkers to it. Even were the 15 disputed spaces to be legally available to 95 Hayden, this would still leave a shortfall, on average, of approximately 18 spaces. Without the 15 Parcel A spots, Three Ledgemont is shy about 33 spaces. This, of course, is a problem when an average or above-average number of vehicles needing parking come to visit the new building; at other times, the need will be less.

One Ledgemont has shown sufficiently that there will an inadequate supply of parking available to serve the average and above-average needs of the new building, and for that independent reason, the Board ought not have given its approval. One Ledgemont, as a direct abutter in close proximity, certainly has the standing to raise this issue. The plaintiff contends-- with good reason given the nearness of the One Ledgemont garage and its attractiveness to drivers traveling to the new Three Ledgemont building--that those drivers well may make unauthorized use of the One Ledgemont garage, particularly if the spaces on Parcel B all are taken. One Ledgemont ought not be obligated to institute a system of gates and parking passes to control access to its own garage just to keep out Three Ledgemont drivers. Given this shortfall of parking, the Decision approving the Three Ledgemont project ought not have issued. This concern, in addition to larger one dealing with 95 Hayden’s lack of legal right to park on Parcel A, justifies a judgment annulling the Board’s Decision.

Aside from the fatal problem of the missing required parking [Note 15], and the further general insufficiency of the parking the project will supply, nothing in the evidence convinces me that the Board abused its discretion, or acted in an arbitrary or capricious manner in issuing its approval.

To address a few of the major challenges in particular, I conclude that, on the facts as I have found them, the Board reasonably could have concluded that the intersections in the area surrounding the Center, including Spring Street and Hayden Avenue, will be able to accommodate the additional traffic generated by the Three Ledgemont project, and operate at level-of-service D or better, as required by §135-73 of the Lexington zoning bylaw. Even as to the five intersections identified in the BSC analysis as currently operating at level-of-service F, I credit generally the testimony of Mr. Kalauskas that the Traffic Demand Management Plan and the Traffic Mitigation Plan appear adequate to bring traffic surrounding the Center into compliance with the bylaw.

Also, I conclude that, in the context of the court’s review of the Board’s zoning Decision, One Ledgemont’s objection to the inconvenience that will result, temporarily, during construction of the project is for the most part not well taken. I accept that while construction is underway, there will be a host of inconveniences and disruptions to One Ledgemont’s land and to its tenants. There will be noise and vibration from the use of explosives needed to clear ledge from the site. There will be limitations on the use of the road scheme serving the parcels to accommodate the movement of construction vehicles and equipment, the delivery of construction materials, and the work necessary to relocate the ways within the campus. All of this will be disruptive, certainly, but it will be temporary and not materially intolerable. All projects, at least of this magnitude, involve some measure of unwelcome impact on adjoining landowners. Without some reasonably tolerable disruption, projects could not be built. Nothing in the evidence I credit convinces me that the Decision by the Board was arbitrary or capricious in deciding that the building of this project, with the attendant impacts on the lands nearby, was worthy of approval. Except for the lack of 95 Hayden’s right to use the disputed parking spaces, and the lack of sufficient parking given the number of vehicles which will visit the new building, the facts as I find them do not show that the Board could not reasonably have approved this permit. [Note 16]

V. CONCLUSION

The challenged Decision of the defendant Board cannot stand as issued because it proceeds on a legally untenable ground. This is because 95 Hayden, as owner of Parcel B, does not have the necessary easements to comply with the requirements of their definitive plan as to parking. Independently, the new building on average will generate a greater need for parking spaces than the site will supply, with or without the 15 spaces as to which 95 Hayden lacks easement rights. For these reasons, the Decision must be annulled. The remaining aspects of the Board’s Decision, however, are not legally untenable, arbitrary or capricious.

95 Hayden is entitled to declaration that the proposed roadway relocations under the 1986 Agreement are reasonably convenient to, and do not materially interfere with, the use of Parcels A and B, and the court will in its judgment provide that One Ledgemont would be unreasonable to withhold its consent to the relocation. 95 Hayden is not entitled to recover on its claims for breach of contract, breach of the implied covenant of good faith and fair dealing, or damages under G. L. c. 93A, § 11.

Judgment accordingly. [Note 17]