KAPLAN vs. NEWBURYPORT ZONING BOARD OF APPEALS, MISC 14-488186

Richard E. Kaplan and David E. Kaplan, as they are Trustees of Plaza Realty Development Trust (Trust), own a property in Newburyport on Route 113, a state highway. The Newburyport Planning Board approved a subdivision plan for the property in 2004. That approval provided that the property would be subject only to certain aspects of the revised site plan review provisions of the Newburyport Zoning Ordinance. After receiving site plan approval in 2007, the Trust sought approval in 2014 of some revisions to the approved site plan. The resulting site plan decision required multiple additional changes to the site plan. The Trust sought a building permit, which was denied because the Trust had not complied with the site plan decision, and then appealed the building permit denial to the Zoning Board of Appeals. The Zoning Board of Appeals affirmed the site plan decision, and the Trust appealed.

The Trust now moves for summary judgment, and its motion is allowed. The site plan decision engaged in a scope of review and imposed requirements that are barred by the 2004 subdivision approval. The Zoning Board of Appeals decision must be annulled, and the matter remanded so that the correct site plan review may be undertaken.

Procedural History

The Trust filed its complaint on November 18, 2014, naming as defendants members of the City of Newburyport Zoning Board of Appeals (ZBA) and the City of Newburyport (City). The ZBA and the City filed their Answer on December 11, 2014. The case management conference was held on December 19, 2014. The Trust filed the Plaintiffs’ Motion for Summary Judgment (Summary Judgment Motion), Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, Plaintiffs’ Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary Judgment, and the Appendix to Plaintiffs’ Motion for Summary Judgment, including the Affidavit of Richard E. Kaplan in Support of Plaintiffs’ Motion for Summary Judgment and the Affidavit of Mariana Korsunsky, Esq., in Support of Plaintiffs’ Motion for Summary Judgment, on January 20, 2015. The ZBA and the City filed Defendants’ Response to Plaintiffs’ Motion for Summary Judgment, Defendants’ Brief Pursuant to Land Court Rule 4 and in Response to Plaintiffs’ Motion for Summary Judgment, and Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts and Defendants’ Statement of Additional Undisputed Material Facts on February 20, 2015. The Trust filed Plaintiffs’ Reply to Defendants’ Response to Plaintiffs’ Motion for Summary Judgment, Plaintiffs’ Response to Defendants’ Statement of Additional Undisputed Material Facts, and the Appendix of Federal, Unreported State, and Out-of-State Cases Cited in Plaintiffs’ Reply to Defendants’ Response to Plaintiffs’ Motion for Summary Judgment on February 27, 2015. The Summary Judgment Motion was heard on March 3, 2015, and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed. [Note 1]

1. The Trust owns an approximately 1.33 acre parcel of land at 29-35 Storey Avenue (Route 113) in Newburyport, Massachusetts, by a deed dated September 17, 2002 and recorded in the Essex County South District Registry of Deeds (registry) at Book 19276, Page 446 (the Property). Affidavit of Richard E. Kaplan in Support of in Support of Plaintiffs’ Motion for Summary Judgment ถถ 1-2, Exhibit 1 (hereinafter “Kaplan Aff. ถ _, Exh. _”).

2. The Property lies in the Business One (B-1) zoning district under the Newburyport Zoning Ordinance (Ordinance). It has approximately 255 feet of frontage on Storey Avenue. This section of Storey Avenue is a state highway under control of the Massachusetts Department of Transportation (MassDOT). Complaint ถ 16 (Compl.); Answer ถ 16 (Ans.); Kaplan Aff. ถ 3; Appendix to Plaintiffs’ Motion for Summary Judgment Exhibit C.1, ง IIIA-B (hereinafter “App. Exh. _”).

3. On February 4, 2003, the Trust filed a preliminary two-lot subdivision for the Property. At or about the same time, the Trust’s affiliate, Port Plaza Realty Trust, filed a separate preliminary subdivision plan for the adjacent property, the Port Plaza Shopping Center. Kaplan Aff. ถ 5.

4. In April 2003, after the Trust filed its preliminary subdivision plan, the City adopted a substantially new site plan ordinance, which is codified at Section XV of the Ordinance. Compl. ถ 21; Ans. ถ 21; App. Exh. C.1.

5. On September 9, 2003, the Trust and Port Plaza Realty Trust each filed definitive subdivision plans. These two definitive plans were reviewed together by the Newburyport Planning Board. Kaplan Aff. ถ 5.

6. On May 7, 2004, the Newburyport Planning Board issued a single decision approving with conditions both the definitive subdivision plan for the Property and the separate definitive subdivision plan for the Port Plaza Shopping Center (2004 Subdivision Approval). The 2004 Subdivision Approval was recorded in the registry at Book 22977, Page 68, on June 10, 2004. Kaplan Aff. ถ 6 & Exh. 2.

7. In section A, the 2004 Subdivision Approval sets forth three conditions for the Port Plaza Realty Trust definitive subdivision plan. Condition 2 provides:

Prior to the construction of any buildings or structures at the Port Plaza Shopping Center which would require review under the April 2003 Site Plan Review applicability thresholds in Section XV of the Newburyport Zoning Ordinance, the applicant and its successors in interest shall obtain site plan review approval from the Planning Director, using the procedures under the old site plan review ordinance, i.e., pre-April 2003, as opposed to Section XV-D of the current Ordinance. The Planning Director and the applicant shall confer to reduce the materials to be filed for review to those strictly necessary to perform site plan review in the particular circumstances and the Planning Director shall waive all other materials. The Planning Director may apply the substantive review guidelines of the new site plan ordinance, provided however, that these guidelines shall only apply to the proposed new building or structure, as opposed to those buildings and structures which predate April 2003, and further provided that no dimensional or use requirement not otherwise required in another Section of the Zoning Ordinance (other than Section XV) may be required as part of site plan approval. The applicant agrees that the Planning Director may review the proposal with the Planning Board at a public meeting, but that site plan review approval will be granted by the Planning Director as an administrative approval.

Kaplan Aff. Exh. 2.

8. Condition 3 provides:

The landowners understand that the Planning Director may consult and confer with the Massachusetts Highway Department (MHD) with respect to MHD’s approval of a curb cut permit. However, because Storey Avenue is a state highway layout, the MHD’s curb cut approval shall be incorporated into the Planning Director’s site plan approval such that the site plan approval shall be conforming in all respects with the MHD curb cut approval.

Kaplan Aff. Exh. 2.

9. In Section B, the 2004 Subdivision Approval sets forth one condition for the Trust’s subdivision plan, namely, that the conditions for the Port Plaza Realty Trust definitive subdivision plan also apply to the Trust’s subdivision plan:

With respect to the definitive subdivision plan for [the Property], the provisions set out at paragraphs 1-3 above shall also apply, subject to the condition that the data gathering and site plan review for the land shown on the definitive subdivision plan shall treat the premises as under separate ownership and control from the Port Plaza Shopping Center which abuts it, except to the extent that a traffic circulation plan for the property may show a driveway connection to the shopping center, and acknowledging that the alternative subdivision plan filed for this property shows only a subdivision road and no cul-de-sac.

Kaplan Aff. Exh. 2.

10. On May 18, 2007, the Trust filed an application for site plan approval to construct a new building on the Property. At that time, the Trust was proposing to construct a new building containing 13,440 square feet of retail space that would be occupied by a restaurant, a bank with a drive through teller, and another retail user. This site plan proposed to locate the new building in the center of the Property. It depicted a parking area in the front of the building as well as on the sides and rear of the building and a drive-through window for the proposed bank. After the Trust submitted a revised site plan, the City’s Planning Director issued her findings and decision approving the revised site plan on July 18, 2007 (the 2007 Site Plan Approval). Kaplan Aff. ถถ 8- 12 & Exhs. 3, 5, 6.

11. On May 3, 2012, the Trust submitted an application to the City’s Building Inspector, Gary Calderwood, for a building permit to construct the foundation of the building at the Property that was approved in the 2007 Site Plan Approval. The Building Inspector approved the application on May 5, 2012 and issued a building permit to the Trust. Kaplan Aff. ถ 13 & Exh. 7.

12. On January 23, 2013, the Trust sent Mr. Calderwood a letter, which stated in relevant part:

As you know, the approval of the Plaza Realty Subdivision Plan [for the Property] effected a so-called “zoning freeze” pursuant to [G.L. c. 40A, ง 6], which provides, in part, that the land shown on an approved subdivision plan is governed by the applicable provisions of the zoning ordinance in effect at the time the plan is submitted for a period of eight years. Absent any other activity, the “zoning freeze” resulting from the approval of the Port Plaza Subdivision Plan would have expired in 2012. However, in 2010, the Massachusetts legislature adopted Chapter 240 of the Acts of 2010. Section 173 of that statute (as recently amended by Sections 74 and 75 of Chapter 238 of the Acts of 2012, all hereinafter for convenience referred to as The “Permit Extension Act”) provides that an “approval in effect or existence” between August 15, 2008 through August 15, 2012, is “extended for a period of 4 years, in addition to the lawful term of the approval.” “Approval” is broadly defined by that statute to include any “permit, certificate, order . . . , license, certification, determination, exemption, variance, waiver, building permit or other approval or determination of rights from any municipal, regional or state governmental agency . . . .”

Based on the Permit Extension Act, it is our understanding that the “zoning freeze,” “waiver” or “exemption” resulting from the approval of the Port Plaza Subdivision Plan is extended for at least four (4) years, or until 2016.

Would you kindly acknowledge below and return one copy for our records?

Thanks, Gary.

Mr. Calderwood executed the acknowledgement and returned a copy of the letter with his signature to the Trust. Kaplan Aff. ถ 14 & Exh. 8.

13. On June 9, 2014, the Trust submitted an application to the new Planning Director for the City, Andrew Port, seeking approval of certain modifications to the site plan approved in the 2007 Site Plan Approval. The Trust sought approval for (1) the enlargement of the building from 13,440 square feet to 13,580 square feet, (2) the conversion of the building from three tenants to a single pharmacy tenant, (3) shifting the location of the building on the site to the east by approximately 20 feet, (4) moving the drive-through window from the side of the building to the rear, (5) changing the access and egress drives from Storey Avenue to accommodate changes requested by MassDOT, and (6) changing the architectural design of the building, with the intent of bringing the building more in character with the City. Kaplan Aff. ถ 15 & Exh. 9.

14. In a June 17, 2014 email to counsel for the Trust, Kathryn Newhall-Smith, Planner for the City, communicated the comments of the Planning Department. These comments included (1) concerns about parking on the Property, and the application of งง XV-H.a.9 and a.10 of the Ordinance to the site plan; (2) concern about sidewalks; and (3) the desire of the Planning Department that the building be shifted to the front of the Property. Kaplan Aff. ถ19 & Exh. 12.

15. On July 9, 2014, the Planning Director issued his decision on the Trust’s request for modifications to the site plan (the 2014 Site Plan Decision). Among his findings, the Planning Director stated:

(a) He found that the Permit Extension Act extended the term of the 2004 Subdivision Approval, but did not extend the period of the zoning freeze associated with that approval under G.L. c. 40A, ง 6.

(b) He did “not concur with the applicant’s assertion that the proposed changes to the development of the subject property are minor in nature,” and found “that the proposed project includes changes from the original project which are materially different and that these differences require review of the proposed project as a major change to the original project or as a new project in itself.”

(c) He found that the curve of the access drives “should be adjusted to ensure a more sharp turn onto and off of Storey Ave in order to prevent vehicles from making unsafe turns across Storey Ave lanes due to the configuration of these drives which would physically allow these turning movements, despite the proposed safety signage indicating otherwise.”

(d) He found that the “site configuration (building and parking locations) is so automobile-centric as to create an awkward and unsafe ‘strip mall’ site layout in which the parking areas and drive isles completely surround the building at the center of the property, thereby placing pedestrians and vehicular traffic in direct conflict across the entire site. This condition should be corrected in a revised site plan prior to construction.”

(e) He found that the “applicant has made no reasonable effort to comply with [งง XV- H.a.9 and a.10] of site plan review” provisions of the Ordinance.

(f) He found that the “rear (south) and Wendy’s side (east) of the building facades do not provide adequate building articulation and should be revised with greater detail to comply with Section XV-H.b.3 of the Development and performance standards of the” Ordinance.

Kaplan Aff. ถ 22 & Exh. 15.

16. Based on these findings and others, the Planning Director approved the request for modifications to the site plan, subject to certain conditions. The relevant condition is Condition No. 1, reading as follows:

Prior to the issuance of any Building Permit for the proposed project the applicant shall submit a revised site plan for review and approval by the Planning Director. Said plan shall address the issues identified and described in greater detail in the findings and determinations above.

Id.

17. On July 11, 2014, the Trust requested the Building Inspector to issue an amended building permit for the Property. On July 16, 2014, the Building Inspector denied the request for “failure to comply with new site plan approval requests by Planning Office (7/9/14)” (Building Permit Denial). Kaplan Aff. ถ 23 & Exh. 16.

18. On July 17, 2014, the Trust filed an appeal with the ZBA from the 2014 Site Plan Decision and the Building Permit Denial. The Trust requested that the ZBA annul Condition No. 1 of the 2014 Site Plan Approval, vacate the Building Permit Denial, and order the Building Inspector to grant the Trust a building permit. Compl. ถ 52; Ans. ถ 52; Kaplan Aff. ถ 24.

19. On September 3, 2014, the Trust provided additional information to the ZBA, including a revised site plan. The revised site plan eliminated the proposed ATM machine on the site. Kaplan Aff. ถ 25 & Exh. 17.

20. The ZBA held a public hearing on the appeal on September 16, 2014, and continued the public hearing to October 28, 2014. Kaplan Aff. ถ26 & Exh. 18.

21. On October 9, 2014, MassDOT issued a curb cut permit to construct the access and egress drives to the Property. The Trust provided a copy of the curb cut permit to the ZBA. Kaplan Aff. ถ 27 & Exhs. 19, 20 & 22 at 17:14-23.

22. At the conclusion of the public hearing on October 28, 2104, the ZBA voted to deny the Trust’s appeal. The ZBA filed its decision denying the appeal with the City Clerk on November 5, 2014 (ZBA Decision). Kaplan Aff. ถถ 29-30 & Exhs. 22 & 23.

Discussion

The Trust’s complaint has two counts. Count I is an appeal pursuant to G.L. c. 40A, ง 17 of the ZBA Decision. Count II seeks a declaration pursuant to G.L. c. 240, ง 14A. As relief, the Trust asks the court to annul the ZBA Decision, strike Condition 1 from the 2014 Site Plan Decision, order the Building Inspector to grant the Trust a building permit, and declare that (a) none of the use and dimensional restrictions that only appear in ง XV of the Ordinance apply to the Property, and (b) the 2007 Site Plan Approval remains in full force and effect and, consequently, the Planning Director is not entitled under ง XV of the Ordinance to condition his approval to any further modifications of the 2007 Site Plan Approval upon relocation of the proposed building.

The Trust properly challenged the 2014 Site Plan Decision by applying for a building permit, appealing the denial of their building permit application to the ZBA, and then appealing the ZBA’s affirming of the building permit denial to this court pursuant to G.L. c. 40A, ง 17. A “site plan approval [is] not an appealable order or decision under ง 8.” Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 142 (2000). The 2014 Site Plan Decision was a prerequisite to the issuance of a building permit, not a final decision. See St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 429 Mass. 1 , 9 (1999); Dufault, 49 Mass. App. Ct. at 141- 142. This means that the “right of an aggrieved person to appeal a . . . site plan review decision arises only when the building permit for the proposed project is issued or denied by the building inspector.” Dufault, 49 Mass. App. Ct. at 141, quoting St. Botolph Citizens Comm., 429 Mass. at 9.

In an action brought pursuant to G.L. c. 40A, ง 17, challenging the decision of a zoning board of appeals, the “court shall hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of the board . . . or make such other decree as justice and equity may require.” Id. This review is described as “a ‘peculiar’ combination of de novo and deferential analyses.” Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), quoting Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court is obligated to hear and find facts in the action de novo; that is, without giving weight to the facts found by the board but rather assessing evidence presented by the parties. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474 (2012); see Wendy’s Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381 (no evidentiary weight given to board’s actual findings). Applying those facts, the court must give deference to the board’s legal conclusions and interpretation of its own zoning ordinance, and determine whether it has applied the ordinance in an unreasonable, whimsical, capricious, or arbitrary manner. Shirley Wayside Ltd. Partnership, 461 Mass. at 474-475; Wendy’s Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381-382; Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999).

Section 14A provides that the “owner of a freehold estate in possession in land may bring a petition in the land court against a . . . town wherein such land is situated . . . for determination of the extent to which any . . . by-law . . . affects a proposed use, enjoyment, improvement or development of such land.” G.L. c. 240, ง 14A. The Trust has standing to bring a claim under G.L. c. 240, ง 14A, as it is the “owner of a freehold estate in possession in” the Property. Id. The interpretation of the site plan review provisions of the Ordinance and their application to the Property in light of the 2004 Subdivision Approval and the 2007 Site Plan Approval are proper subjects of a claim under ง 14A.

The Trust’s ง 17 appeal therefore necessitates an examination of the ZBA Decision, which in turn requires a determination of whether the Building Inspector property denied the application for building permit, which in turn requires an examination of the 2014 Site Plan Decision which formed the basis for the Building Inspector’s denial that was affirmed by the ZBA. The Trust’s ง 14A claim requires a determination of whether the Planning Director properly applied the site plan review provisions of the Ordinance to the Property. In other words, the Trust’s claims require that the court examine the 2014 Site Plan Decision to determine if the Planning Director applied the correct legal standards under the Ordinance, the 2004 Subdivision Approval, and the 2007 Site Plan Approval, giving proper deference to the ZBA’s ultimate affirmance of that decision.

The parties agree that the 2004 Subdivision Approval is still in effect, and that Conditions 2 and 3 of that approval apply to the site plan review leading to the 2014 Site Plan Decision. The Permit Extension Act, St. 2010, c. 240, ง 173, as amended by St. 2012, c. 238, ง 74, applies to the 2004 Subdivision Approval. The Permit Extension Act also operates to extend the 2007 Site Plan Approval. The Permit Extension Act defines the kind of “approval” to which it applies very broadly, and the 2007 Site Plan Approval is an “approval or determination of rights from . . . [a] department . . . of . . . [a] municipal . . . governmental entity, concerning the use or development of real property.” St. 2010, c. 240, ง 173(a). Because the 2007 Site Plan Approval was issued under the Ordinance, which was adopted pursuant to G.L. c. 40A, ง 5, it was “issued or made under chapter . . . 40A . . . of the General Laws.” St. 2010, c. 240, ง 173(a).

The ZBA and the City argue that by seeking the 2014 Site Plan Decision, the Trust waived or abandoned the 2007 Site Plan Approval. This contention is not supported by the undisputed facts. The Trust’s June 9, 2014 request for approval explicitly states that it is submitting “proposed engineering plans for minor modifications to the existing approved site plan.” Kaplan Aff. Exh. 9. The Trust did not abandon the 2007 Site Plan Approval; it merely sought to modify some of the terms of that approval by enlarging and shifting the location of the building on the Property, making it a single tenant pharmacy, moving the drive-through window, changing the access and egress drives, and changing the architectural design. The scope of these proposed changes does not amount to the equivalent of a new site plan. The 2014 Site Plan Decision is a modification of the 2007 Site Plan Approval, not a new decision on a new site plan.

The Planning Director’s review of the proposed changes to the 2007 Site Plan Approval was subject to ง XV-C, as modified by Condition 2 of the 2004 Subdivision Approval. As discussed, Condition 2 provides:

Kaplan Aff. Exh. 2. Section XV-D contains the review procedures for major projects and minor projects. Condition 2 explicitly states that those review procedures are not to be applied to any site plan review for the Property. Instead, the Planning Director was to conduct the site plan review himself, conferring with the Trust to reduce the materials used in the review to the minimum necessary in order to streamline review.

The Planning Director did conduct the site plan review himself, but improperly expanded the scope of the review beyond what was called for in ง XV as modified and limited by Condition 2. First, in the 2014 Site Plan Decision, the Planning Director makes a finding that the Trust’s revisions to the 2007 Site Plan Approval are not a “minor modification” but “are materially different and . . . require review of the proposed project as a major change to the original project or as a new project in itself.” Kaplan Aff. Exh. 15, at 6. As discussed, the 2014 Site Plan Decision is incorrect that the site plan revisions constituted a new project; they were modifications to the site plan approved in 2007. The Planning Director also erred in characterizing the Trust’s proposed changes as a major change as opposed to a minor change. This distinction between “major” and “minor” changes does not appear in ง XV, the site plan review provisions of the Ordinance. Section XV does draw a distinction between major and minor projects, but says nothing about modifications. Ordinance ง XV-C. The Planning Director was obligated to confine the scope of his review to the specific changes to the 2007 Site Plan Approval sought by the Trust.

The next question concerns the 2014 Site Plan Decision’s requirement that the site plan changes be modified to comply with two performance standards in ง XV-H of the Ordinance: ง XV-H.a.9’s requirement that “[w]here feasible, parking areas shall be located to the side or behind buildings” and ง XV-H.a.10’s requirement that “[e]xcept where physical constraints, site configuration, or safety considerations preclude strict compliance, no parking or loading shall be permitted within the required front yard setback.” Ordinance งง XV-H.a.9, XV-H.a.10; Kaplan Aff. Exh. 15, at 8. The issue is whether requiring the site plan changes to comply with these two provisions of ง XV-H is consistent with the portion of Condition 2 that provides that, when reviewing site plan changes, the “Planning Director may apply the substantive review guidelines of the new site plan ordinance, provided however, that these guidelines shall only apply to the proposed new building or structure, as opposed to those buildings and structures which predate April 2003, and further provided that no dimensional or use requirement not otherwise required in another Section of the Zoning Ordinance (other than Section XV) may be required as part of site plan approval.” Kaplan Aff. Exh. 2. The issue, therefore, is whether the ZBA Decision affirming the 2014 Site Plan Decision properly interpreted the Ordinance and Condition 2 as applied in the 2014 Site Plan Decision.

Zoning ordinances are interpreted using “the ordinary principles of statutory construction.” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012), quoting Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Condition 2, as part of a decision of the Newburyport Planning Board that modifies the application of the Ordinance to the Property, should be interpreted using the same principles. In interpreting the Ordinance and Condition 2 the place to begin is always with the plain language of the provisions. If that language is unambiguous, these provisions are enforced according to their plain wording. Libertarian Ass’n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538 , 550 (2012); Shirley Wayside Ltd. Partnership, 461 Mass. at 477. The Ordinance and Condition 2 should be construed to give effect to all their provisions, in harmony with common sense, to carry out their intent. Wolfe v. Gormally, 440 Mass. 699 , 704 (2004). The ZBA’s interpretation of the Ordinance and Condition 2 is entitled to a measure of deference, but only to the extent that, after the court has determined the content and meaning of the Ordinance and Condition 2, the ZBA “has chosen from those sources the proper criteria and standards to use in deciding to grant or deny” the Trust’s appeal. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003); see Fafard v. Conservation Comm’n of Reading, 41 Mass. App. Ct. 565 , 572 (1996).

The parties agree, as does the court, that งง XV-H.a.9 and a.10 are “substantive review guidelines of the new site plan ordinance” and are subject to Condition 2. Kaplan Aff. Exh. 2. Further, both of these sections constitute a “dimensional or use requirement” to which Condition 2 applies. Section XV-H.a.9 regulates the location of “parking areas” on a site and provides for requiring “alternative parking lot layouts.” Ordinance ง XV-H.a.9. Section XV-H.a.10 bars parking within the front yard setback. Ordinance ง XV-H.a.10. The Ordinance defines “Use” as the “specific purposes for which land or a building is designed, arranged, intended, or for which it is or may be occupied or maintained.” Ordinance ง II-B.46. It defines “Parking space” as a “delineated area intended for occupancy by a motor vehicle.” Ordinance ง II-B.35. Based on these definitions, parking is a use. Sections XV-H.a.9 and a.10 regulate that use by limiting or directing where on the Property it may be undertaken. Thus, งง XV-H.a.9 and a.10 are “use requirements” as that term is used in Condition 2, and Condition 2 applies to งง XV-H.a.9 and a.10.

The ZBA and the City argue that the 2014 Site Plan Decision was correct to subject the site plan changes because Condition 2 should be interpreted to provide that the substantive review guidelines of ง XV are applicable to the Property, but other provisions of the Ordinance are not. They argue that while Condition 2 “provides that ‘no dimensional or use requirement’ in another section of the Ordinance may be imposed on a new building or structure on the Property, the condition further expressly provides that such requirements under ง XV are applicable.” Defs.’ Brief at 13-14. Finally, they argue that this interpretation is reasonable, and that the court should defer to it.

This is not a reasonable interpretation. Rather, it is directly contrary to the plain language of Condition 2, and is not entitled to deference. See Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 , 342 (2013) (“Incorrect interpretations . . .are not entitled to deference.”). Condition 2 states that “the Planning Director may apply the substantive review guidelines of the new site plan ordinance, provided however, that these guidelines shall only apply to the proposed new building or structure, . . . and further provided that no dimensional or use requirement not otherwise required in another Section of the Zoning Ordinance (other than Section XV) may be required.” Kaplan Aff. Exh. 2 (emphasis supplied). The phrases “provided however” and “further provided” are a qualification, limitation or exception, and in Condition 2 operate to create an exception to the authority of the Planning Director to apply the substantive review guidelines. Bailey v. Astra Tech, Inc., 84 Mass. App. Ct. 590 , 595 (2013). Condition 2’s exception means that no dimensional or use requirement not otherwise required in another provision of the Ordinance other than ง XV may be required as part of site plan approval for the Property. In other words, the dimensional or use requirements of ง XV, including งง XV-H.a.9 and a.10, cannot be applied to a site plan for the Property unless they are also required in another section of the Ordinance.

This interpretation is further supported by Condition 2’s parenthetical use of the phrase “(other than Section XV).” Under the canon of statutory interpretation known as the “rule of the last antecedent,” this phrase should be interpreted as modifying the language that immediately precedes it, namely, a “dimensional or use requirement not otherwise required in another Section of the Zoning Ordinance.” Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118 , 123 (1986); Mauri, 83 Mass. App. Ct. at 342. The phrase “(other than Section XV)” is intended to emphasize that when Condition 2 provides that no dimensional or use requirement not otherwise provided for in another section of the Ordinance cannot be applied, it means sections of the Ordinance other than ง XV.

Thus, unless the requirements of งง XV-H.a.9 and a.10 appear elsewhere in the Ordinance, they should not have been applied to the site plan changes proposed by the Trust. As discussed, ง XV-H.a.9 requires parking areas to be located to the side or behind buildings, and allows for mandating alternative parking lot layouts. Ordinance ง XV-H.a.9. This limitation of the location of parking areas does not appear in the Ordinance’s off-street parking regulations. Ordinance ง VII-A. Nor does any such limitation appear in the parking requirements for various uses. Ordinance ง VII-B. Section ง XV-H.a10 bars parking within the front yard setback. No such limitation appears in the parking regulations or parking requirements. Ordinance งง VII-A, VII-B. Nor does any such limitation appear in the provisions concerning lot setbacks. Ordinance งง VI-F, VI-G. In short, งง XV-H.a.9 and a.10 are both “use requirement[s] not otherwise required in another Section of the Zoning Ordinance.” Kaplan Aff. Exh. 2. Under Condition 2, they could not “be required as part of site plan approval.” Id. The 2014 Site Plan Decision erred in requiring the Trust to comply with the requirements of งง XV-H.a.9 and a.10.

The Trust also contends that the 2014 Site Plan Decision does not comply with Condition 3 of the 2004 Subdivision Approval. That condition provides that “MHD’s curb cut approval [for the Property] shall be incorporated into the Planning Director’s site plan approval such that the site plan approval shall be conforming in all respects with the MHD curb cut approval.” Kaplan Aff. Exh. 2. The 2014 Site Plan Decision requires that the curve of the access drives to the Property as shown on the site plan “should be adjusted to ensure a more sharp turn onto and off of Storey Ave in order to prevent vehicles from making unsafe turns across Storey Ave lanes due to the configuration of these drives which would physically allow these turning movements, despite the proposed safety signage indicating otherwise.” Kaplan Aff. Exh. 15. On October 9, 2014, after the 2014 Site Plan Decision was issued but before the ZBA held the final public hearing on the Trust’s appeal, MassDOT issued the curb cut permit for the Property. Kaplan Aff. ถ 27 & Exh. 19. The Trust submitted the curb cut permit to the ZBA the day of the final public hearing. Kaplan Aff. ถถ 27, 29 & Exhs. 20 & 22 at 17:14-23.

The Trust is correct that under Condition 3, the 2014 Site Plan Decision should be amended to incorporate the curb cut permit, and nothing in that Decision may require changes from the curb cut permit. Based on the record before it, the court cannot say that the 2014 Site Plan Decision does, in fact, conflict with the terms of the curb cut permit.

In short, the 2014 Site Plan Decision erred because it (a) considered other aspects of site plan review beside the specific changes to the 2007 Site Plan Approval sought by the Trust, (b) required the Trust to comply with งง XV-H.a.9 and a.10 of the Ordinance, and (c) may have imposed requirements inconsistent with and failed to incorporate the curb cut permit. These are errors of law to which no deference should be given. The ZBA erred in not annulling the 2014 Site Plan Decision.

The ZBA Decision must be annulled. The question then is what should happen next. The Trust is entitled to a declaration under Count II of the complaint that (a) none of the use and dimensional requirements that only appear in ง XV of the Ordinance, including but not limited to งง XV-H.a.9 and XV-H.a.10, can be applied in site plan review of the Property, (b) any modification to the 2007 Site Plan Approval must incorporate the MassDOT’s curb cut permit and may not modify that permit, (c) the 2007 Site Plan Approval remains in full force and effect, and (d) the Planning Director may not condition approval of the Trust’s proposed modifications to the 2007 Site Plan Approval on further modifications beyond those proposed by the Trust. With respect to Count I, the court is loath to order approval of the proposed site plan revisions without some further site plan review, a review that the Planning Director, rather than the court, should undertake in the first instance. Judgment shall enter on Count I remanding this matter to the ZBA and ordering it to annul the 2014 Site Plan Decision and remand the application for approval of the proposed changes to the Planning Director for new site plan review. As part of his review, the Planning Director is instructed not to require compliance with any dimensional or use requirement in ง XV of the Ordinance that is not otherwise required in another section of the Ordinance, including but not limited to งง XV-H.a.9 and a.10 of the Ordinance, to incorporate the curb cut permit into his decision, and not impose any requirements inconsistent with the curb cut permit and the plans approved by the curb cut permit, and to consider only the specific changes to the 2007 Site Plan Approval, and not require any other changes to the 2007 Site Plan Approval.

Conclusion

For the foregoing reasons, the Summary Judgment Motion is ALLOWED. Judgment shall enter declaring the application of Condition 2 to the site plan review of the Property as set forth above, annulling the Decision, and remanding this matter to the ZBA with an order that the ZBA annul the 2014 Site Plan Decision and order the Planning Director to undertake a new site plan review consistent with this Memorandum and Order.

SO ORDERED

[Note 1] In Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts and Defendants’ Statement of Additional Undisputed Material Facts, the ZBA and the City state that many of the facts set forth in the Plaintiffs’ Statement of Undisputed Material Facts are “[u]ndisputed for purposes of summary judgment.” Nothing in Mass. R. Civ. P. 56 or Land Court Rule 4 provides for qualifying an admission of a fact as undisputed with the proviso that the admission is only “for purposes of summary judgment.” Any facts admitted by the ZBA and the City are undisputed for all purposes in this action.