Can a place to stand be defined as a seat? The Town of Bridgewater Planning Board (Planning Board) thinks so, using just such a definition in granting a special permit and site plan approval to defendant, Chapman Cousins, LLC (Chapman), to construct an additional parking lot to serve Chapmans nonconforming funeral home business. In order to justify granting a special permit for additional parking, it was necessary to show that the current nonconforming use does not meet the existing minimum parking space requirement. In a conspicuously result-oriented demonstration of interpretation of the Bridgewater Zoning Bylaw (Bylaw), the Planning Board utilized a provision of the Bylaw basing the parking space requirement on the number of seats, and then interpreted the number of seats to include dynamic seating, a term not found in the Bylaw, but which the Planning Board adopted and defined to include standing room as seating. After including 173 so-called dynamic seats in the calculation along with 67 actual seats, the minimum number of required parking spaces for the funeral home greatly increased from 19 to 62 spaces. The Planning Board adopted this interpretation of the word seat and granted Chapman a special permit for the additional parking spots that it needed to meet this artificially inflated requirement.
Plaintiffs Ryan Prophett (Prophett) and Jennifer Allen (Allen), brother and sister, are co-owners of property abutting the funeral home and directly across the street from the proposed additional parking lot. The plaintiffs appealed the grant of the special permit and site plan approval pursuant to G. L. c. 40A, § 17, arguing that the Planning Board erred in classifying the principal use of the funeral home as an other place of assembly (so as to be able to base the number of required parking spaces on the number of seats in the facility) and in supporting the use of dynamic seats in conjunction with a calculation of necessary parking spaces. [Note 1] Plaintiffs also assert that the decision should be annulled because the Planning Board failed to consider the impact the project would have on the quality of life of neighboring residential properties, such as their own. The plaintiffs each filed motions for summary judgment, and Chapman filed a cross- motion for summary judgment.
For the reasons stated below, summary judgment will enter for the plaintiffs, and against the defendants, annulling the decision of the Planning Board.
The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the motions and cross-motion for summary judgment:
1. Prophett and Allen are siblings and are the co-owners of property located at 86 Maple Avenue in Bridgewater (the Plaintiffs Property). [Note 2]
2. The Plaintiffs Property is improved by a single family dwelling, where Allen lives with her husband, who is not a record owner. [Note 3]
3. Chapman owns adjacent property at 98 Bedford Street in Bridgewater that is improved with the Prophett-Chapman, Cole & Gleason Funeral Home and a residential apartment (the Funeral Home Property). The Funeral Home Property abuts the northwestern boundary line of the Plaintiffs Property. In total, the Funeral Home Property includes 3,255 square feet of land, according to the Assessors Field Card.
4. The Funeral Home Property is located in a Residential D zoning district under the Bylaw, in which funeral homes, classified as a retail, business, and consumer service establishment under §6.30 of the Bylaw, are not a permitted use. The Funeral Home Property, however, is grandfathered as a preexisting nonconforming use. [Note 4]
5. In 2008, when Chapman purchased the Funeral Home Property, it also purchased property at 94 Maple Avenue (the 94 Maple Property), which abuts the Funeral Home Property as well as the rear and southeastern boundary line of the Plaintiffs Property. [Note 5]
6. Chapman also owns property at 79 Maple Avenue (the Subject Property) located directly across the street from the Plaintiffs Property and the Funeral Home Property. The Subject Property is also located in the Residential D district. It is improved with a single family dwelling, which is a use allowed as of right. [Note 6]
7. In 1990, a prior owner of the Funeral Home Property and the 94 Maple Property, Raymond Zeoli (Zeoli) applied for a building permit for a proposed 1,100 square-foot addition to the funeral home business. [Note 7]
8. In responding to Zeolis application for a building permit, the building inspector informed Zeoli that a special permit was needed to change, extend, or alter the non- conforming use and that enlargement of the building requires provisions for off-street parking as if the building were newly constructed. The 1990 building inspector specifically stated:
According to your permit application, the total resulting square footage of the building including the proposed addition would be 3,770 sq. ft. Funeral homes are indicated in the bylaws under Section 6.3E. Retail and Consumer Service Establishments. Therefore, to the best of my knowledge, the parking requirement would be calculated at one parking space to each 150 sq. ft. of gross floor area. This would result in a need for 26 parking spaces. If these cannot be provided, a variance from Section 10 would have to [sic] sought from the Zoning Appeals Board. [Note 8]
9. Thereafter, Zeoli also applied for a variance from the off-street parking requirements. The Planning Board granted Zeoli the special permit to enlarge the funeral home. The Planning Board agreed with the building inspectors calculations, that 26 parking spaces were required at the Funeral Home Property under §10.60 of the Bylaw, but granted Zeoli a variance to avoid having to conform to the off-street parking requirements. [Note 9]
10. About 2006, Zeoli razed a dwelling at the 94 Maple Property and unsuccessfully sought a permit to construct a parking lot to service the funeral home business. Section 6.30(K) of the Bylaw does not allow parking lots in Residential D districts by either special permit or variance. [Note 10]
11. In 2007, the Bylaw was amended to add §5.60. Section 5.60 provides as follows:
Any non-conforming commercial use in a residential district may, by special permit, use a proximate parcel of owned land to meet minimum parking requirements so long as there is no expansion of the principal, non-conforming use.
Parcels used for this shall create and preserve a visual and acoustical buffer with adjacent properties. There shall be a goal to protect the quality of life of neighboring residential properties. The buffer area may be in the form of fencing, landscaping, earthen berms or any other appropriate screening to reduce impacts of lighting, noise and aesthetics. This buffer shall occur in the side and rear setback areas whenever residential uses abut commercial development or as determined by the Planning Board. [Note 11]
12. A special permit is defined in §2.81 of the Bylaw as:
. . . a use that would not be appropriate generally, or without restriction through the zoning district but which, if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, order, comfort, convenience, appearance, prosperity or general welfare. Such uses may be permitted in such zoning districts as special permits, where specific provision for such special permits is made in this Zoning By-Law. [Note 12]
13. In 2009, after acquiring both the Funeral Home Property and the 94 Maple Property, Chapman sought a special permit to construct a fifteen (15) space parking lot for the Funeral Home Property under §5.60 of the newly amended Bylaw. At a public hearing, Chapman did not introduce evidence or request that the funeral home be considered an other place of assembly for purposes of calculating the required number of parking spaces, rather than as a retail store and service, the use category that is more closely aligned to its characterization in the Table of Use Regulations in §6.30 of the Bylaw. Nor did Chapman submit a plan including stationary and dynamic seating. The Planning Board approved the special permit for the additional 15 parking spaces. [Note 13]
14. After obtaining the special permit, Chapman constructed a parking lot on the 94 Maple Property that runs the full length of its common boundary with the Plaintiffs Property, and wraps behind the Plaintiffs Property to a point where it meets the Funeral Home Property. As a result, the Plaintiffs Property is presently surrounded on three sides by Chapmans funeral home parking. Access to this parking lot is solely by means of a driveway from Maple Avenue that is located directly next to the plaintiffs driveway. [Note 14]
15. On or about April 9, 2015, Chapman filed an application with the Planning Board seeking a special permit under §5.60 and site plan approval for the Subject Property under §9.80 of the Bylaw to expand its parking across the street onto the Subject Property. In order to construct the parking lot, Chapman proposes to raze the existing dwelling and remove much of the vegetation on the Subject Property. In its application, Chapman sought an additional 42 spaces, for a total of 64 spaces. Pursuant to the standards imposed by §5.60, it claimed the additional spaces were necessary to meet the minimum parking requirement for the Funeral Home Property. [Note 15]
16. Section 10.60 of the Bylaw sets forth the minimum parking requirements for each use category. The Bylaw states in material part that where one building is used for more than one use, parking requirement shall be computed for each use. [Note 16]
17. A site plan was submitted along with Chapmans application for approval of the parking lot project (the Site Plan). The Site Plan shows that the Funeral Home Property presently has twenty-two (22) parking spaces. I accept the Site Plan as an accurate representation of the properties and find that there are 22 existing parking spaces. [Note 17]
18. The Site Plan shows that the new parking lot would occupy the majority of the Subject Property across the street from the Plaintiffs Property and the Funeral Home Property and would include 42 parking spaces (including 2 parking spaces for the dwelling on the Funeral Home Property), travel aisles, and driveways entering from two different points on Maple Avenue. [Note 18]
19. Although the term retail, business, and consumer service establishment as used in §6.30 does not appear in §10.60, the term retail stores and services does appear and is a principal use category for which the minimum parking requirement is set as one (1) space for each 200 square feet of gross floor area (GFA). [Note 19]
20. In reaching its determination that 64 parking spots were required, Chapman treated the principal use of the funeral home as an other place of assembly, and not as retail stores and services as it had previously been treated. [Note 20]
21. Unlike retail store and services, under which the number of required parking spaces is based on gross floor area, for uses classified as other places of assembly, the parking space calculation is based on the number of seats, specifically, one (1) parking space required for every four (4) seats in the facility. [Note 21]
22. In its special permit application, Chapman represented that the funeral home establishment contains 67 stationary seats (i.e. chairs), and 173 dynamic seats. Dynamic seats, as defined by Chapman, are not actual seats, but instead are a measurement of floor area large enough for one person to stand (e.g., in a waiting area). Classifying the funeral home use under other places of assembly, and counting both actual chairs and dynamic seats, for a total of 240 seats, Chapman determined that the Funeral Home Property would need at least 62 parking spaces. When only the 67 chairs are included in the calculation, and not dynamic seats, the Bylaw only requires a total of nineteen (19) parking spaces, which the Funeral Home Property already has, as shown on the Site Plan. [Note 22]
23. The term seat appears in §10.60 of the Bylaw, but it is not expressly defined. The terms dynamic seating and static seating do not appear anywhere in the Bylaw. Nothing in the Bylaw explicitly authorizes the inclusion of dynamic seating or standing capacity in the calculation of the total number of required parking spaces. [Note 23]
24. Using the designation of retail stores and services, where the number of spaces depends on square footage, not seats, §10.60 requires the Funeral Home Property to have nineteen (19) parking spaces (using the GFA from Assessors Field Card of 3,255sq ft) or twenty- one (21) parking spaces (using the GFA from the 1990 determination by the building inspector, of 3770 sq. ft.) (both calculations include the two spaces necessary for the dwelling on the Funeral Home Property) to satisfy the minimum parking requirement of the Bylaw. Under the retail stores and services classification, and under either calculation of GFA, the Funeral Home Property already satisfies the Bylaws minimum parking requirements with its current 22 parking spaces as shown on the Site Plan. [Note 24]
25. On April 8, 2015, the building inspector sent a letter to Chapman indicating that his department had reviewed the Site Plan and agreed with Chapmans categorization of the funeral home as an other place of assembly and with using chairs and so-called dynamic seats to conclude that a minimum of 62 parking spaces were required under the Bylaw. [Note 25]
26. On May 4, 2015, the Planning Board held a public hearing on Chapmans special permit application. Following the public hearing, the Planning Board issued a decision granting the special permit and site plan approval. The Planning Boards decision was filed with the Town Clerk on May 6, 2015. [Note 26]
27. Thereafter, plaintiffs appealed the Planning Boards decision. Prophett filed his complaint in case no. 15 MISC 000184 on May 22, 2015 and Allen filed her complaint in case no. 15 MISC 000188 on May 26, 2015. At a case management conference held on June 30, 2015, the two cases were consolidated by this court.
28. In February 2016, Prophett and Allen filed separate motions for summary judgment. On March 4, 2016, Chapman filed a cross-motion for summary judgment and opposition to the plaintiffs motions for summary judgment. A hearing on the motions and cross-motion for summary judgment was held on May 3, 2016, following which the motions were taken under advisement.
Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. Id. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and an adverse party may not manufacture disputes by conclusory factual assertions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr., supra, 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
The parties have moved for summary judgment on three discrete issues: (1) whether the Planning Board erred in characterizing the funeral home business as an other place of assembly instead of a retail store and service in determining the required parking under §10.60; (2) whether it was legally tenable for the Planning Board to interpret the term seat to include dynamic seats; and (3) whether the decision failed to satisfy the requirements of §5.60 that the project shall create and preserve a visual and acoustical buffer with adjacent properties and that it protect the quality of life of neighboring residential properties.
I. The Planning Board Improperly Characterized the Funeral Home Use When Calculating the Parking Space Requirement.
The plaintiffs first argue that the Planning Board applied the incorrect principal use category under §10.60 of the Bylaw by treating the Chapman funeral home as an other place of assembly instead of as a retail store and service. Plaintiffs assert that because the table of use regulations in §6.30 designates [m]ortuary, undertaking or funeral establishments as included under the broader category of retail, business and consumer service establishments, the funeral home should also be categorized as retail stores and services when determining parking requirements. Conversely, Chapman contends that just because a funeral is considered a retail, business and consumer service establishment, for purposes of characterizing the use, the Planning Board is not precluded from considering the funeral home business to be an other place of assembly for the purpose of determining parking space requirements.
The interpretation of a bylaw is a question of law for the court, to be determined by ordinary principles of statutory construction. Framingham Clinic Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Bldg. Comm'r of Franklin v. Dispatch Communications of New England, 48 Mass. App. Ct. 709 , 713 (2000). The court first looks to the statutory language as the principal source of insight into legislative intent. Shirley Wayside Ltd. Pship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012). When the meaning of the language is plain and unambiguous, the court enforces the statute according to its plain wording unless a literal construction would yield an absurd or unworkable result. Commonwealth v. DeBella, 442 Mass, 683, 687 (2004) (stating that the court will not resort to extrinsic aids in interpreting the statute when the ordinary meaning of words yield a workable and logical result).
Where ambiguities exist in the language of the bylaw, the court owes some deference to a local boards reasonable construction of its own bylaw. Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 456 (2006); Shirley Wayside Ltd. Pship, supra, 461 Mass. at 475. Ambiguities exist when multiple interpretations lie within the band of a reasonable reading, as to the meanings of terms included in, and the intentions lying behind, the ordinance's words. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997). Deference is owed to a local zoning boards interpretation, because the local board is deemed to have special knowledge about the history and purpose of its zoning bylaw. Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 545 (2014). Such deference, however, is given only when that interpretation is reasonable. Pelullo v. Croft, 86 Mass. App. Ct. 908 , 909 (2014). An incorrect interpretation of a bylaw is not entitled to deference. Shirley Wayside Ltd. Pship, supra, 461 Mass. at 475 (a judge should overturn a local boards decision when the boards conclusion is not supported by any rational view, or when the reasons given by the board lacked substantial basis in fact and were in reality mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law).
In initially looking at §10.60 and the term other places of assembly, there is some appeal to Chapmans argument that the funeral home was intended to fall into this category. Sections of a bylaw, however, should not be read in isolation. Were it not for §6.30s inclusion of funeral homes under the broader category of retail, business and consumer service establishments, Chapmans assertion may have held water. While it is true that §6.30s use designation of retail, business and consumer service establishment is not identical to the category as described in §10.60, the parking requirement section of the Bylaw, the category of retail stores and services is explicitly listed. Since funeral homes are plainly identified in §6.30 as a retail, business (or) consumer service establishment, it follows that the intent of the drafters of the Bylaw was to have funeral homes fall under the most similar categorical description in §10.60. The resemblance of the uses as described in each section indicates the drafters of Bylaw intended for these uses to be considered one and the same for the purpose of calculating parking space requirements, and this is in fact how the use was previously treated by the prior building inspector. Moreover, the formula for calculating parking under the retail store classification, one space for each 200 square feet of GFA, is the same formula used in the 1990 request for building permit, when the building inspector noted the parking requirement was one space for each 150 square feet, and the Planning Board issued a decision consistent with that formula. It is further in line with the 2009 decision approving Chapmans application for a special permit to construct 15 parking spaces, in which the Planning Board did not seem to consider the funeral home as an other place of assembly. Accordingly, the Planning Board should have used the most analogous category to the §6.30 characterization to determine the funeral homes parking needs.
Properly determined under the retail stores and services category of §10.60 of the Bylaw, the minimum number of parking spaces required is calculated as one space per 200 square feet of GFA, plus two spaces for the dwelling unit on the Funeral Home Property. The Assessors Field Card states that the GFA of the Funeral Home Property is 3,255 square feet, but the figure used by the building inspector in 1990 is 3,770 square feet. Using the building inspectors more conservative GFA, the minimum number of parking spaces required is 21 spaces. Under either GFA, the Funeral Home Property presently satisfies the parking requirement with its existing 22 parking spaces.
II. The Planning Boards Adoption of the Concept of Dynamic Seating was Legally Untenable.
Even if the Planning Board had been correct in classifying the funeral home as an other place of assembly for purposes of determining parking requirements, the Planning Board improperly calculated the number of required spaces by including and relying on Chapmans calculation of dynamic seating. Other places of assembly require at least one parking space per four seats. Once the Planning Board established that other place of assembly was the correct categorization, its task largely involved the counting of seats. Chapman argues that the term seat is essentially a computational mechanism to determine the number of people that will be exercising a use at any given time who will require transportation and parking. In the absence of a definition of seat in the Bylaw, Chapman argues that the meaning of seat connotes available standing space for a person attending a service whose needs for parking should be taken into account, i.e. dynamic seating. Plaintiffs disagree, reasoning that the plain language of the word seat pertains to sitting, not space for standing.
Because the Bylaw includes no express definition of a seat, as that term is used in §10.60, the court is ultimately left with the task of providing the legal interpretation of local legislation. Absent express definition, the term seat is to be read in the context of the Bylaw as a whole and to the extent consistent with common sense and practicality, the term should be given its ordinary meaning. Kurz v. Bd. of Appeals of North Reading, 341 Mass. 110 , 112-113 (1960); Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990). Words usual and accepted meanings are derived from sources presumably known to the [bylaws] enactors, such as their use in other legal contexts and dictionary definitions. See Commonwealth v. Zone Brook, Inc., 372 Mass. 366 , 369 (1977). A special permit granting authority is entitled to all rational presumptions in favor of its interpretation of its own bylaw, provided there is a rational relation between its decision and the purpose of the regulations it is charged with enforcing. See Livoli, supra, 42 Mass. App. Ct. at 923; Bldg. Commr of Franklin, supra, 48 Mass. App. Ct. at 715-718; Advanced Dev. Concepts, Inc. v. Town of Blackstone, 33 Mass. App. Ct. 228 , 231 (1992); Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 28-29 (2002).
Applying these principles, the word seat is a commonly used term generally referencing or involving the act of sitting. In Merriam-Webster's Collegiate Dictionary, the word seat is defined as a chair, stool, or bench intended to be sat in or on, or the particular part of something on which one rests in sitting. Merriam-Webster's Eleventh New Collegiate Dictionary (2003). Similarly, the American Heritage Dictionary defines seat as something, such as a chair or bench, that may be sat on, a place in which one may sit, or the part on which one rests in sitting. American Heritage College Dictionary 1252 (4th ed. 2002). The Oxford English Dictionary describes a seat as a place or thing to sit upon, the place on which a person is sitting, or is accustomed to sit, and something adapted or used for sitting upon, as a chair, stool, sofa, etc. Oxford English Dictionary 1824 (1937). These sources unambiguously suggest that the term seat pertains only to sitting and its meaning should not be broadened to transform an area of standing into a seat.
The court is well aware that people typically assemble in funeral homes, often in large numbers, to pay their respects to the deceased, family, and friends at wakes and funeral services. In such circumstances, they are not always seated. The language in the Bylaw, however, makes clear that seating or standing capacity, i.e. dynamic seats, are not a part of the calculation of the number of seats in the funeral home. If that was the intention, the Bylaw could have been amended to address the parking space needs of funeral homes and other uses that have similar waiting areas where large groups assemble, but where the people are not necessarily seated. Municipalities have addressed this issue in a number of ways, such as including seating capacity in the calculation, differentiating between fixed seats and seating area, or using the floor area in public waiting and meeting areas to calculate parking. See, Y. D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 28 (1970) (noting that the Town of Canton Zoning Bylaw requires 1 parking space for each 4 seats, but where there are no fixed seats, as in a terminal or dance hall, each 20 square feet of public floor area shall equal 1 seat).
Other state courts have interpreted seat consistently with this courts decision. See Marion Road Assn, Inc. v. Westport Planning and Zoning Comn, No. CV 93 0304365-S, 1994 WL 592221, at *4 (Conn. Super. Oct. 24, 1994) (rejecting plaintiffs argument that seats in a synagogue should also include capacity figures for purposes of adequate off-street parking when the dictionary definition of the word seat included only objects intended to be sat on and not overall capacity); Jirtle v. Bd. of Adjustment for the Town of Biscoe, 175 N.C. App. 178, 182 (2005) (stating that [t]he plain language of the ordinance makes clear that parking requirements for churches are determined solely by the number of seats and not by the capacity of the number of people that may come to the church).
Accordingly, it is apparent, and I so find and rule, that the use of the word seat means only actual seats that people sit on, not areas for standing. While the Planning Board does have discretion to interpret its own Bylaw, and deference is owed to a local boards interpretation, such deference is not given when that interpretation is arbitrary. Pelullo, supra, 86 Mass. App. Ct. at 909. The definition proposed by Chapman and accepted by the Planning Board is not a reasonable or a correct interpretation of the Bylaw, and would lead to an absurd result if followed. Shirley Wayside Ltd. Pship, supra, 461 Mass. at 475. The Planning Boards plainly result-oriented interpretation essentially turned the minimum parking space calculation from one based on number of seats, into one based on capacity. Because the Bylaw did not explicitly authorize the use of dynamic seating, and the plain meaning of seat is otherwise apparent, the Planning Board did not have the authority to effectively legislate a material change in the Bylaw to reach its desired result.
As such, the Planning Board should have found that the funeral home only had 67 seats, not 240. Under the other places of assembly category (not in any event the correct category for calculating the number of parking spaces required for a funeral home), disregarding the dynamic seating and dividing the remaining 67 seats by 4, yields a minimum parking requirement of 19 spaces (including the 2 reserved for the dwelling). This means that whether treated as retail stores and services or other place of assembly, the minimum parking requirements are no more than 21 parking spaces. Since the Funeral Home Property has at least 22 parking spaces already, it meets the minimum parking requirements under the Bylaw. The Planning Board failed to apply the appropriate calculation to determine the number of off-street parking spaces required by §10.60. If calculated correctly, there would have been no basis for the Planning Board to approve Chapmans application, as the funeral home already complied with the off-street parking requirements of the Bylaw. Therefore, I find the Planning Board exceeded its authority and the decision granting the special permit and site plan approval must be annulled.
Because I find that the Planning Board acted arbitrarily and capriciously in calculating the number of required parking spaces, I need not reach the issue whether the Planning Boards decision included necessary findings under §5.60 that the plans for the project would create and preserve a visual and acoustical buffer with adjacent properties and whether the project meets the goal of protecting the quality of life of neighboring residential properties.
For the reasons set forth above, plaintiffs motions for summary judgment are ALLOWED, and Chapmans cross-motion for summary judgment is DENIED. Summary judgment will enter in favor of Prophett and Allen, annulling the decision of the Planning Board.
Judgment will enter in accordance with this decision.
[Note 1] The plaintiffs, although co-owners of the same property, filed separate appeals. The two cases have been consolidated.
[Note 2] Plaintiffs Statement of Material Facts Pursuant to Land Court Rule 4 (Pl. Facts) ¶¶ 1, 4; Defendants Response to Plaintiffs Statement of Material Facts and Statement of Additional Material Facts (with Appendix of Exhibits) (Def. Facts) ¶¶1, 4.
[Note 3] Pl. Facts ¶ 4; Def. Facts ¶ 4.
[Note 4] Pl. Facts ¶¶ 3, 5, 43-44, 62; Exhs. 4, 15; Def. Facts ¶¶ 3, 5, 43-44, 62. Under the Table of Use Regulations in §6.30 of the Bylaw, [m]ortuary, undertaking or funeral establishments are designated as retail, business and consumer service establishments.
[Note 5] Pl. Facts ¶ 6; Def. Facts ¶ 6.
[Note 6] Pl. Facts ¶ 7; Def. Facts ¶ 7.
[Note 7] Pl. Facts ¶ 8; Def. Facts ¶ 8.
[Note 8] Pl. Facts ¶¶ 9-10; Def. Facts ¶¶ 9-10.
[Note 9] Pl. Facts ¶¶ 11-12; Def. Facts ¶¶ 11-12.
[Note 10] Pl. Facts ¶¶ 13-14; Exhs. 3-4; Def. Facts ¶¶ 13-14.
[Note 11] Pl. Facts ¶¶ 15-16; Exh. 4; Def. Facts ¶¶ 15-16.
[Note 12] Pl. Facts ¶ 17; Exh. 4; Def. Facts ¶ 17.
[Note 13] Pl. Facts ¶¶ 18-20, 63; Exhs. 4, 19; Def. Facts ¶¶ 18-20, 63.
[Note 14] Pl. Facts. ¶ 21; Exh. 3; Def. Facts ¶ 21.
[Note 15] Pl. Facts ¶¶ 22, 25, 30-32; Exh. 4; Def. Facts ¶¶ 22, 25, 30-32.
[Note 16] Pl. Facts ¶ 45; Exh. 4; Def. Facts ¶ 45.
[Note 17] Pl. Facts ¶¶ 22-23; Exhs. 11-12; Def. Facts ¶¶ 22-23.
[Note 18] Pl. Facts ¶¶ 24-25; Exhs. 11-12; Def. Facts ¶¶ 24-25.
[Note 19] Pl. Facts ¶¶ 46-47; Exh. 4; Def. Facts ¶¶ 46-47.
[Note 20] Pl. Facts ¶ 31; Exh. 4; Def. Facts ¶ 31.
[Note 21] Pl. Facts ¶¶ 31, 51; Exh. 4; Def. Facts ¶¶ 31, 51.
[Note 22] Pl. Facts ¶¶ 31-32, 35, 51, 53-54, 56-57; Exhs. 4, 12, 16, 18; Def. Facts ¶¶ 31-32, 35, 51, 53, 56-57. Because the meaning of the term seat is in dispute, all stationary seats will be referred to as chairs. The number of parking spaces are calculated as follows: 67 chairs + 173 dynamic seats = 240 seats/4 = 60 parking spaces + one dwelling (2 spaces per unit) 2 spaces = 62 parking spaces. When not including dynamic seating the number of spaces are calculated as follows: 67 chairs/4 = 17 parking spaces + dwelling unit 2 parking spaces = 19 parking spaces.
[Note 23] Pl. Facts ¶¶ 58-59; Exh. 4; Def. Facts ¶¶ 58-59.
[Note 24] Pl. Facts ¶¶ 48-50; Exh. 4; Def. Facts ¶¶ 48-50. Number of parking spaces calculated as follows: one dwelling 2 spaces + retail stores and services (1 space per 200sq ft) 3255sq ft/200 = 19 parking spaces or 3770sq ft/200 = 21 parking spaces.
[Note 25] Pl. Facts ¶ 36; Exh. 17; Def. Facts ¶ 36.
[Note 26] Pl. Facts ¶¶ 26-29, 37, 52; Exh. 14; Def. Facts ¶¶ 26-29, 37, 52.