CHI WING LEE, FENG DONG, ANYAH LEE SUDERMAN, and JOSEPH SCOTTI v. RICHARD SAMPSON, JR., DONNA PATALANO, LAWRENCE BEALS, JON GYORY, JOAN LANGSOM and NIGEL HAIG GALLAGHER, as they are members of the WINCHESTER BOARD OF APPEALS and GERSHMAN BROWN CROWLEY, INC. and G.B. NEW ENGLAND 2, LLC.

INTRODUCTION

The Plaintiffs in this case appeal under G.L. c. 40A, § 17 from a September 12, 2013 decision of the Defendant Winchester Board of Appeals (the "ZBA") granting site plan approval [Note 1] to Defendants G.B. New England 2, LLC and Gershman Brown Crowley, Inc. (now known as T.M. Crowley & Associates, Inc.) for the redevelopment of land in the General Business District 1 ("GBD-1") for a CVS pharmacy store. The Plaintiffs, who own and/or reside in residentially-zoned properties either directly abutting the project site, or directly across the street from the project site, claim that the ZBA exceeded its authority when it approved the site plan because, as designed, the development project does not conform to the applicable requirements of the Winchester Zoning Bylaw (the "Bylaw") relative to minimum yards, minimum parking ratios, minimum parking space size, and minimum landscaping. They claim to be aggrieved by the site plan approval decision because, inasmuch as the approved development project is larger than it would be if in full compliance with the Bylaw, it will result in proportionately more traffic, noise, snow melt runoff, and headlight glare impacts on their residences.

A de novo trial was held on May 5 and 6, 2015. Five witnesses testified for Plaintiffs:

1. Plaintiff Joseph Scotti;

2. Plaintiff Anyah Lee Suderman;

3. Plaintiff Chi Wing Lee;

4. Plaintiff Feng Dong; and

5. Sean Reardon P.E., of Tetra Tech. Sean Reardon was qualified and admitted as an expert.

Five witnesses testified for Defendants:

1. John Wile, the Winchester Building Commissioner and Zoning Enforcement Officer;

2. Kevin Paton of BKA Architects, Inc., the architect for the Project;

3. Brian J. Dundon P.E., of R.J. O'Connell & Associates, Inc., the Project Site civil engineer;

4. Giles Ham, Principal of R.D. Vanasse & Associates, Inc., who conducted a traffic impact and access study for the Project; and

5. Mark C. Wallace, a Sound Engineer with Tech Environmental, who conducted a sound study for the Project.

All of Defendants' witnesses were qualified and admitted as experts.

The parties stipulated to thirty-seven agreed facts, and a total of fifteen agreed trial exhibits were admitted into evidence. Following receipt of the trial transcripts and the Parties' respective proposed findings of fact and rulings of law, the court heard closing arguments on November 18, 2015. Now, as discussed below, I find and rule that the subject site plan approval decision is legally untenable and exceeded the ZBA's authority.

Findings of Fact

Based on the pleadings, the Parties' statement of agreed facts, the admitted exhibits, and the trial testimony, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues:

1. G.B. New England 2, LLC (the "Developer") is the developer of a proposed CVS retail pharmacy (the "Project") to be constructed on five contiguous parcels located on the corner of Washington and Swanton Streets in Winchester, Massachusetts. The five parcels, which total 51,653 square feet in area, are identified on a survey plan prepared by R.J. O'Connell & Assoc., dated July 20, 2012, as Parcels I, II, III, IV and V (the "Project Site").

2. Parcels I, II and III are owned by Daniel Gattineri and Paula Pacitto, as Trustees of Fashion Real Estate Trust u/d/t dated March 1, 1963. [Note 2]

3. The Trustees of Fashion Real Estate Trust also claim ownership by adverse possession of Parcel V, a narrow 3.50' by 40.06' strip of land located in the middle of the Project Site. [Note 3]

4. 12 Swanton St. LLC, a Massachusetts limited liability company, of which Daniel Gattineri is Manager, acquired Parcel IV from Bossi's Realty Trust on August 15, 2013, while the site plan approval application for the Project was still pending.

5. Plaintiff Chi Wing Lee's property at 270 Washington Street is directly adjacent to the southern boundary of the Project Site. [Note 4]

6. Plaintiff Feng Dong's property at 296 Washington Street is directly across Swanton Street from the Project Site.

7. Plaintiff Anyah Lee Suderman's property at 283 Washington Street is directly across Washington Street from the Project Site.

8. Plaintiff Joseph Scotti owns and resides at 271 Washington Street, which is diagonally across Washington Street from the Project Site. Mr. Scotti also owns a two-family house at 275-277 Washington Street, directly across the street from the Project Site.

9. All of Plaintiffs' properties are located in the General Residence zoning District (RG-6.5).

10. The Project Site is located in the GBD-1 General Business zoning District. Retail pharmacy use is allowed by-right in the GBD-1 district; however, the Project is subject to site plan approval by the ZBA, as provided in Section 9.5 of the Bylaw, due to the fact that the parcel to be developed exceeds 15,000 square feet and the proposed development would have more than twenty parking spaces. Bylaw § 9.5.1(2) & (3).

11. On October 9, 2012, the Developer applied to the ZBA for site plan approval pursuant to Section 9.5 of the Bylaw. According to the site plan approval application, the planned CVS pharmacy would be located in a stand-alone building with a total gross floor area of 14,360 square feet, including a 2,405 square foot area labelled on the Developer's plans as "mezzanine." [Note 5]

12. The ZBA conducted public hearings over a ten-month period, received testimony from the Developer, the public, and various Town boards and departments including the Winchester Design Review Committee, Winchester Planning Board, Winchester Town Planner, Winchester Town Engineer, the Winchester Fire Prevention Officer, and an independent traffic consultant retained by the Town of Winchester.

13. Following the close of the public hearings, the ZBA found that the Project constituted a by-right use and that the Project as proposed satisfied the site plan review requirements contained in Section 9.5.7 of the Bylaw.

14. In a decision filed with the Winchester Town Clerk on September 12, 2013, the ZBA approved the site plan for the Project, subject to forty-two conditions, restrictions, clarifications and limitations (the "Site Plan Decision").

15. The Bylaw, dated April 27, 2009, [Note 6] reflects the zoning provisions that were in effect at all relevant times as they concern the Site Plan Decision that is the subject of this action.

16. Pursuant to Bylaw Section 2.3.1, the Town has an Official Zoning Map which depicts "the location and boundaries of the district[s] set forth under Section 2.0."

17. The zoning district boundaries shown on the Town's Official Zoning Map [Note 7] reflect the zoning district boundaries in effect at all relevant times in this action. [Note 8] There has been no showing of any conflict between the Official Zoning Map and any records of subsequent changes or additions to the Official Zoning Map.

18. Section 2.4 of the Bylaw sets out the rules for interpreting district boundaries when uncertainty exists as to the boundaries shown on the Official Zoning Map. In particular, Sections 2.4.1 and 2.4.2 provide that "[b]oundaries indicated as following the centerlines of streets, highways, or alleys shall be construed to follow the centerlines of such streets, highways, or alleys" and "[b]oundaries indicated as approximately following plotted lot lines shall be construed as following such lot lines."

19. According to the Official Zoning Map, the GBD-1 zoned Project Site is surrounded on three of its sides by the General Residence District. The boundary lines separating the GBD-1 District from the General Residence District are shown as following the plotted lot lines of the Project Site. As shown on the Official Zoning Map, the General Residence District includes the full width of both Swanton Street and Washington Street where those streets abut the Project Site, making the Project Site "adjacent to" the General Residential District where it abuts those public ways.

20. Pursuant to Bylaw Section 4.1.1, Table of Dimensional Requirements, there is no minimum front, side or rear yard requirement for buildings or structures on land in the GBD-1 district, except for a required minimum yard of 20 feet where GBD-1 zoned land is adjacent to either the SCI (Conservancy-Institutional District) or a Residential District.

21. The proposed CVS pharmacy building is shown on the approved site plan as being 12.75 feet from its nearest point to the Project Site's property line boundary along Washington Street, which property line coincides with the zoning district boundary between the GBD-1 District and the General Residence District.

22. The proposed CVS pharmacy building is shown on the approved site plan as being 6.63 feet from its nearest point to the Project Site's property boundary line along Swanton Street, which property line coincides with the zoning district boundary between the GBD-1 District and the General Residence District.

23. Bylaw Section 5.1.3, Table of Off-Street Parking Requirements, specifies the minimum number of parking spaces to be provided "per Dwelling Unit or per Gross Floor Area of Building" for each use group and type listed. The minimum number of required parking spaces for a retail store in the GBD-1 District is specified as "1 space per 200 SF." According to the notes following the Table, "SF" means "square feet."

24. The approved site plan provides for a total of 63 parking spaces. The number of parking spaces provided was calculated on the basis of 11,955 square feet of floor area. The 2,405 square feet of mezzanine storage space in the proposed building was not included in the parking calculation.

25. Bylaw Section 10.0, Definitions, defines the term "Parking Space" as "[a]n area…on a lot available for parking one motor vehicle, having a width of not less than nine feet and an area of not less than 200 square feet, exclusive of passageways and driveways, appurtenant thereto…."

26. Bylaw Section 5.1.6.2 requires parking spaces or "stalls" to be "at least nine (9) feet" in width.

27. Bylaw Section 5.1.6.3 requires parking stall depth to be "at least 19 feet for all angle parking and 22 feet for parallel parking."

28. The parking spaces shown on the approved site plan are all angle parking, and are each nine feet wide, nineteen feet deep, and 171 square feet in area. None of the parking spaces shown on the approved site plan has an area "of not less than 200 square feet."

29. According to Section 5.1.9 of the Bylaw, at least two percent (2%) of the interior of a parking lot with 21 or more parking spaces shall be planted and continuously maintained. However, "planting on the perimeter of a parking area…shall not be considered part of the two (2) percent interior planting."

30. The approved site plan provides for two small islands of landscaping within the interior of the 63-space parking lot. The two landscaped islands scale on the plan to approximately 10 feet by 20 feet each, totaling less than 240 square feet, or less than 1% of the ~25,000 square foot parking lot. [Note 9] The rest of the landscape areas shown on the approved site plan are located along the perimeter of the proposed parking lot, including the landscaped areas defining the entrance/exit driveway and abutting the handicapped parking space and loading area at the southwest corner of the sidewalk abutting the CVS pharmacy building.

31. Pursuant to Section 9.5.7 of the Bylaw, "[s]ite plan approval shall be granted only upon determination by the [ZBA] that the plan meets" the design standards set forth therein. Pertinent to the Plaintiffs' appeal, Section 9.5.7(10) provides that all new building construction and other site alterations be designed so as to "[e]nsure compliance with the provisions of this Zoning Bylaw, including parking, signs, landscaping, and environmental standards."

32. The site plan as approved by the ZBA does not comply with provisions of the Bylaw relative to minimum yards, minimum parking ratio, minimum area of parking spaces, and minimum interior parking lot landscaping.

33. The ZBA's Site Plan Decision does not include a determination that the site plan is designed in compliance with the provisions of the Bylaw per Section 9.5.7(10), and the Site Plan Decision does not impose any conditions to ensure compliance with the applicable minimum yard, parking ratio, parking space area, and parking lot landscaping requirements of the Bylaw.

DISCUSSION

Plaintiffs appeal the ZBA's Decision as legally untenable on the grounds that the site plan as approved does not comply with the Bylaw's requirements in several respects: (1) it fails to provide the minimum required 20-ft. yard where the Project Site abuts residentially zoned land; (2) it fails to provide the required number of off-street parking spaces; (3) it fails to provide parking spaces meeting the 200 ft. minimum area requirement specified in the Bylaw definition of "Parking Space;" and (4) it fails to provide the required minimum interior parking lot landscaping. In response, Defendants challenge Plaintiffs' standing to maintain this appeal. They further argue that, even if Plaintiffs have standing, the ZBA's Decision was not legally untenable, unreasonable, nor arbitrary and capricious. As discussed below, I find that the Defendants have not successfully rebutted the Plaintiffs' presumption of standing, and I further find that the ZBA exceeded its authority in approving a site plan for the Project Site which does not fully comply with the applicable minimum requirements of the Bylaw relative to yards, off- street parking ratio, parking space dimensions, and parking lot interior landscaping.

Standing

Standard of Review

"Only a 'person aggrieved' may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G.L. c. 40A, § 17. The term "person aggrieved" is not to be construed narrowly. Id. As abutters and owners of land directly across the street from the project site, the Plaintiffs here are presumed to have standing as persons aggrieved, but the presumption of standing may be rebutted. Id.; see also Watros, Inc. v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106 , 111 (1995). "If standing is challenged, the jurisdictional question is decided on 'all the evidence with no benefit to the plaintiffs from the presumption.'" Marashlian, 421 Mass. at 721 (quoting Watros, Inc., 421 Mass. at 111). A party challenging a plaintiff's presumed standing must offer evidence "'warranting a finding contrary to the presumed fact.'" 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461 Mass. 692 , 700 (2012) (quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003)); Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 118 (2011). If the defendant offers sufficient evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the burden shifts to the plaintiff to prove standing by putting forth credible evidence to substantiate that they would suffer a particularized harm as a consequence of the zoning board of appeals' decision. Kenner, 459 Mass. at 120. However, if the defendant "fails to offer evidence warranting a finding contrary to the presumed fact, the presumption of aggrievement is not rebutted, the abutter is deemed to have standing, and the case proceeds on the merits. 81 Spooner Road, LLC, 461 Mass. at 701. Here, the Defendants failed to rebut the Plaintiffs' presumed standing.

Defendants Failed to Rebut the Plaintiffs' Presumed Standing

The Plaintiffs' primary claim of aggrievement is that the Project as approved will be larger than if the Bylaw requirements relative to minimum yard setbacks, minimum parking space number and size, and minimum parking lot landscaping were correctly applied. As a result, Plaintiffs say, the development will take up more space on the Project Site and will generate proportionately more negative impacts from increased traffic, glare, and noise. This is, quintessentially, a density grievance. [Note 10] "[C]rowding of an abutter's residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal." Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009). The Town of Winchester's Bylaw, like most, regulates density through bulk and dimensional regulations. See, e.g., Bylaw § 1.2 ("The construction, repair, alteration, reconstruction, height, number of stories, and size of buildings and structures, the size and width of lots, the percentage of lot area that may be occupied, the size of yards and other open spaces, the density of population, and the location and use of buildings, structures, and land in the Town are regulated as hereinafter provided." (emphasis added)).

The evidence presented by the Defendants to rebut the Plaintiffs' presumption of standing does not warrant a finding contrary to the presumed fact that the Project shown on the approved site plan is more dense than allowed under the Bylaw. Defendants rely primarily on the testimony of the Town's Zoning Enforcement Officer ("ZEO") John Wile, concerning his interpretation of the Bylaw provisions relative to applicable parking requirements, parking lot landscaping, and yard requirements. Under the ZEO's interpretations, the approved site plans would be in compliance with the Bylaw requirements and thus would not increase density beyond what is permitted by right under the Bylaw. Defendants argue that the ZEO's interpretations should be granted deference. Predictably, Plaintiffs advance different interpretations of the Bylaw and argue that those advanced by Defendants should be rejected as unreasonable. Ultimately, this interpretive dispute is not factual in nature, but instead presents a question of law for the court to determine upon reaching the merits of the case. Because the Defendants did not successfully rebut the Plaintiffs' presumed standing, the Plaintiffs were not required to offer evidence to support their standing. Because their presumed standing as persons aggrieved has not been rebutted, the case will be decided on the merits.

The Site Plan Approval

Standard of Review

When an aggrieved party appeals a decision of a permit granting authority under G.L. c. 40A, § 17, 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 such board." The court's review is de novo and it "gives no evidentiary weight to the board's findings." Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). Nonetheless, the court's review is "circumscribed: the decision of the [ZBA] cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Id. (quotations omitted).

A site plan approval for an as-of-right use differs from zoning relief such as variances or special permits. Where, an as-of-right use is proposed and subjected to site plan review, the designated site plan review board does "'not have discretionary power to deny…[site plan approval], but instead [is] limited to imposing reasonable terms and conditions on the proposed use.'" Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281- 82 (1986) (quoting SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 106 n.12 (1984)). Site plan review under the Winchester Bylaw comports with this standard. See Bylaw § 9.5.7 ("Site Plan Approval shall be granted only upon determination by the Board that the plan meets the following standards. The Board may impose reasonable conditions at the expense of the applicant to implement these standards."). With these principles in mind, I consider the grounds raised by Plaintiffs as reasons to invalidate the Site Plan Decision.

Pursuant to Section 9.5.7 of the Bylaw, "[s]ite plan approval shall be granted only upon determination by the [ZBA] that the plan meets" the design standards set forth therein. Pertinent to the Plaintiffs' appeal, Section 9.5.7(10) provides that all new building construction and other site alterations be designed so as to "(e)nsure compliance with the provisions of this Zoning Bylaw, including parking, signs, landscaping, and environmental standards." As discussed below, I find that the site plan approved by the ZBA does not comply with all of the applicable yard, parking, and landscaping provisions of the Bylaw, and that the Site Plan Decision "does not ensure compliance" with such provisions. As such, the Site Plan Decision is legally untenable and exceeds the site plan approval authority of the ZBA.

Twenty-Foot Minimum Yard

The Plaintiffs contend that the approved site plan does not comply with the 20-foot minimum yard requirement applicable where a GBD-1 zoned property abuts a Residential District. Section 4.1.1, Table of Dimensional Requirements, lists no minimum yard requirements for the GBD-1 District except for a minimum 20-foot yard adjacent to an SCI or Residential District. According to the Town's Official Zoning Map, both Washington Street and Swanton Street are zoned entirely within the General Residence District (RG-6.5) where those streets abut the Project Site, such that the Washington Street and Swanton Street boundaries of the Project Site coincide with the zoning district boundaries between the GBD-1 District and the General Residence District. Accordingly, the minimum 20 foot yard requirement applies to the proposed pharmacy building where the Project Site is adjacent to the residentially-zoned Swanton and Washington Streets. The approved site plan, however, shows the proposed CVS pharmacy building located only 12.75 feet from the Washington Street boundary of the Project Site at its nearest point, and 6.63 feet from the Swanton Street boundary at its nearest point.

Defendants argue that the 20-foot yard requirement does not apply in circumstances where a GBD-1 zoned property abuts a street rather than a residentially-zoned lot. [Note 11] Defendants further assert that the streets are not zoned at all. They also point to the ZEO's testimony that the consistent practice of his office has been not to apply this 20-foot minimum yard requirement, in addition to width of the roadway, to properties abutting streets, (Trial Tr. Vol I, 36:5-38:9), insisting that the court give deference to the ZEO's interpretation of the Bylaw. The Defendants arguments, however, are not supported by the evidence.

The Parties agreed and stipulated that all of the zoning district boundaries shown on the Town's Official Zoning Map, admitted as Exhibit 4, reflect the zoning district boundaries in effect at all relevant times in this action. The Official Map plainly depicts the General Residence District as including the entire width of Washington and Swanton Streets right up to the lot lines of the Project Site where it abuts those streets. The Official Map is unambiguous. But to the extent that there is any uncertainty, Bylaw Section 2.4 provides rules for interpretation "[w]here uncertainty exists as to the boundaries of districts as shown on the Official Zoning Map." According to Section 2.4, "[b]oundaries indicated as following the centerlines of streets…shall be construed to follow the centerlines of such streets…." and "[b]oundaries indicated as approximately following plotted lot lines shall be construed as following such lot lines." For the area at issue in this case, the boundary line between the GBD-1 and RG-6.5 General Residence Districts is plainly indicated as following the Project Site's lot lines, and not the centerlines of said streets. I find that the GBD-1 zoned Project Site is thus adjacent to the General Residential District along those lot lines corresponding to the sidelines of Swanton Street and Washington Street.

I am not persuaded by Defendants' argument that showing these streets on the Official Zoning Map as being entirely within the Residential District boundaries is mere "happenstance," is not deliberate, or somehow lacks consistency. [Note 12] "When district boundaries are defined by an official zoning map, 'a landowner is…bound by this map unless, carrying his burden of proof, he can demonstrate that a different boundary was intended.'" Bruni v. Planning Board of Ipswich, 73 Mass. App. Ct. 663 , 669 (2009) (quoting Jenkins v. Pepperell, 18 Mass. App. Ct. 265 , 269 (1984)) (alteration in original). Here, the Defendants have produced absolutely no evidence that the Official Zoning Map depiction of the zoning boundary adjacent to the Project Site is not as intended. [Note 13]

Further this is not an instance where deference is owed to an interpretation by local zoning officials. Although the court must accord some deference to a local board's reasonable interpretation of its own zoning bylaw, an incorrect interpretation is not entitled to deference. Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012); see also Pelullo v. Croft, 86 Mass. App. Ct. 908 , 909-10 (2014) ("[A] court owes deference to the interpretation of a zoning by-law by local officials only when that interpretation is reasonable."). I do not find the ZEO's interpretation of the Section 4.1.1 yard requirement reasonable in light of the unambiguous language of the Bylaw, explicitly requiring a 20-foot minimum yard when a GBD-1-zoned property is adjacent to a residential district. Had the Bylaw's drafters intended the interpretation supplied by the ZEO, the Bylaw easily could have been written to indicate that the 20-foot minimum yard setback applies when a GBD-1-zoned lot is adjacent to a residentially- zoned lot. But the Bylaw uses the word "district."

In light of the foregoing, I find that Section 4.1.1 requires a minimum 20-foot yard where the Project Site is adjacent to residentially zoned Washington and Swanton Streets. Because the approved site plan for the Project does not provide the required 20-foot yards between the proposed pharmacy building and adjacent residential district where the Project Site abuts Swanton Street and Washington Street, the Site Plan Decision is premised on a legally untenable ground—namely, that the Project site plan is designed to comply with the provisions of the Zoning Bylaw. Moreover, the Site Plan Decision does not contain any conditions ensuring compliance with the minimum yard requirement. Accordingly, the Site Plan Decision exceeded the ZBA's authority.

Quantity of Parking Spaces

The Plaintiffs also complain that the site plan approved by the ZBA does not comply with the Bylaw's minimum off-street parking requirements because the Developer impermissibly excluded the mezzanine area from the gross floor area when calculating the required parking. Section 5.1.3 of the Bylaw provides that "[o]ff-street parking facilities shall be provided for each type of land use, in accordance with the … Table of Off-Street Parking Requirements" (the "Parking Table"). The Parking Table is organized according to uses and zoning districts. For each use type within a zoning district or districts, the Parking Table specifies the "Min. Number of Parking Spaces to be Provided per Dwelling Unit or per Gross Floor Area of Building." (Emphasis added). According to the Parking Table, the minimum number of parking spaces required for a retail store in the GBD-1 District (such as the proposed pharmacy) [Note 14] is "1 space per 200 SF." Given the column heading, "Number of Parking Spaces to be provided per…Gross Floor Area of Building," I interpret the "200 SF" in that column to mean "200 square feet of gross floor area." [Note 15]

The Defendants contend that, because the Bylaw defines the term "Floor Area," but does not define "Gross Floor Area," these two terms must be viewed as synonymous. The Section 10 definition of "Floor Area" reads,

[t]he aggregate horizontal area in square feet of all floors of a building…measured from the exterior faces of walls enclosing each building, exclusive of…attic areas used only for storage or for service incidental to the operation or maintenance of such building….

On the basis of that definition, the Developers assert that the mezzanine portion of the pharmacy building is properly excluded for parking calculation purposes. The Defendants again misconstrue the Bylaw.

Although the Bylaw does not define the term "Gross Floor Area," pursuant to the preamble of Bylaw Section 10, Definitions, "[t]erms and words not defined herein but defined in the Commonwealth of Massachusetts State Building Code shall have the meaning given therein unless a contrary intention is clearly evident in the Bylaw." According to the Massachusetts State Building Code, 780 CMR 1002.0 8th ed., the term "Floor Area, Gross" is defined in pertinent part as:

[T]he floor area within the perimeter of the outside walls of the building under consideration, without deduction for hallways, stairs, closets, thickness of walls, columns or other features.

This definition of Gross Floor Area is in marked contrast to the definition of "Floor Area" contained in the Bylaw in that, unlike "Floor Area," "Gross Floor Area" does not exclude attic spaces or areas used for storage. Given the clear difference between the two terms, and given that the Bylaw uses the specific term "gross floor area" when describing the ratio to be applied for parking requirements, I do not accept the Defendants' invitation to treat the two terms as synonymous, notwithstanding the ZEO's testimony that he gives the two terms the same meaning. Deference to the Town's interpretation is not appropriate in this case where the Town's interpretation is unsupportable. See Pelullo, 86 Mass. App. Ct. at 909-10.

Having determined that the mezzanine area must be included in the gross floor area used to calculate the number of parking spaces required for the Project, I conclude that the 63 parking spaces depicted on the approved site plan are insufficient to satisfy the minimum parking requirements of the Bylaw. The parties have stipulated that the gross floor area of the proposed pharmacy building totals 14,360 square feet. However, the 63 parking spaces shown on the approved site plan were provided on the basis of only 11,955 square feet because the 2,405 square foot mezzanine storage area was excluded. Accordingly, as this calculation was inconsistent with the requirements of the Bylaw, and the Site Plan Decision contained no conditions ensuring compliance with the minimum parking requirements, the Site Plan Decision failed to "[e]nsure compliance with the provisions of [the Bylaw], including parking … standards," and therefore exceeded the ZBA's authority.

Dimensions of Parking Spaces

In addition to challenging the sufficiency of the number of parking spaces provided for the Project, the Plaintiffs complain that the parking spaces shown on the approved site plan do not fully conform to the minimum dimensional requirements of the Bylaw in that they do not each contain at least 200 square feet of area. The Parties have stipulated that the parking spaces shown on the approved site plan are each 9 feet wide and 19 feet in depth, and that the area of each parking space is 171 square feet. The Defendants contend that the 200 square foot area requirement should be ignored because it is inconsistent with the minimum depth and width requirements prescribed in the Bylaw. I decline to ignore the 200 square foot area requirement.

"Parking Space" is defined in Bylaw Section 10 as "[a]n area … on a lot available for parking one motor vehicle, having a width of not less than nine feet and an area of not less than 200 square feet, exclusive of passageways and driveways appurtenant thereto…." Section 5.1.9 of the Bylaw, entitled, Design of All Off-Street Parking Facilities, requires that the width of each parking stall "shall be at least nine (9) feet," and the depth of each stall "shall be at least 19 feet for all angle parking." [Note 16] The 9 ft. by 19 ft. angle parking spaces depicted on the approved site plan meet the minimum width and depth requirements set forth in Section 5.1.6, but they do not meet the minimum 200 square feet area requirement described in the Section 10 definition of "Parking Space."

In arguing that the 200 foot parking space area specified in the Definition section should be disregarded, Defendants point to the language in the introductory sentence of Bylaw Section 10, which states that the definitions given "shall apply unless a contrary meaning is required by the context or is specifically prescribed in the text of the Bylaw." Since using those prescribed dimensions results in a 171 square foot area, Defendants contend that the specially prescribed width and depth of Section 5.1.6 requires a contrary meaning be given to the 200 square foot requirement in the Section 10 definition. This argument is without merit.

Notably, Section 5.1.6 provides that parking spaces shall be "at least" 9 feet wide, and the stall depth shall be "at least" 19 feet for an angle parking space and 22 feet for a parallel parking space. [Note 17] These dimensions are the minimum width and depth required, and do not prevent larger dimensions from being employed as the Defendants assert. The fact that a parking space designed to meet only the minimum width and depth will not be at least 200 feet in area does not render the 200 square foot area standard in Bylaw Section 10 either inconsistent or superfluous. All three standards must be met. [Note 18]

In interpreting the Bylaw, I am required to give each word its ordinary meaning, without overemphasizing its effect on other terms in the Bylaw, so that the Bylaw can be read as a consistent and harmonious whole. See Hebb v. Lamport, 4 Mass. App. Ct. 202 , 207 (1976); see also Shea v. Danvers, 21 Mass. App. Ct. 996 , 997 (1986) ("Requirements of one section of a zoning by-law may not be ignored by reason of another section unless strictly necessary."). Here, all three of the minimum standards can be applied without conflict. Achieving 200 square feet in area means only that the parking space must be either wider or longer than the minimum width and depth required under Section 5.1.6. Accordingly, this is not an instance where deference should be given to the ZEO's interpretation of the Bylaw.

As the parking spaces shown on the site plan approved by the ZBA do not conform to the Bylaw requirement under Section 10 that each parking space have at least 200 square feet of area, and as the Site Plan Decision does not include any conditions ensuring compliance with this requirement, the Site Plan Decision exceeded the ZBA's authority.

Parking Lot Landscaping

The Plaintiffs also challenge the Site Plan Decision on the ground that the approved site plan does not comply with the Bylaw requirement that at least two percent of the interior of a parking lot with 21 or more parking spaces be planted and continuously maintained. In relevant part, Section 5.1.9(7) of the Bylaw states:

At least two (2) percent of the interior of a parking lot with 21 or more parking spaces shall be planted and continuously maintained. Planting along the perimeter of a parking area, whether for required screening or general beautification, shall not be considered as part of the two (2) percent interior planting….

(Emphasis added).

It is indisputable that the parking lot shown on the site plan for the Project has considerably more than 21 parking spaces and, therefore, is subject to the two percent interior landscaping requirement. Plaintiffs assert that the landscaping of the Project's parking lot does not satisfy the two percent requirement because the landscaped areas within the interior of the parking lot – i.e., not touching the perimeter of the parking area – amount to less than two percent of the 25,000 square foot parking area. Conversely, Defendants assert that a 500 square foot area of landscaping shown on the site plan as abutting the southwest corner of the sidewalk along the CVS pharmacy building should be included in the calculation of landscaping that is "interior" to the parking area and that, therefore, the site plans meet the two percent interior landscaping requirement. [Note 19] I find Defendants' interpretation to be inconsistent with the plain language of the Bylaw, and the ordinary meaning of the words "perimeter" and "interior."

There is no definition of either "perimeter" or "interior" in the Bylaw, or in the Massachusetts State Building Code. Therefore, the court is left to determine the plain meanings of those words according to common and approved usages. See, e.g. Lussier v. Zoning Board of Appeals of Peabody, 447 Mass. 531 , 534 (2006); Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 , 365 (2001). Generally, the word "perimeter" connotes a border, boundary, or edge of an area – whereas the word "interior" is used to describe something which is within or inside of something. While "perimeter" refers to the exterior or outer limits, "interior" refers to the center or inner area. See e.g., Webster's II New College Dict. (3d ed. 2005) (defining "perimeter" as "[t]he outer limits of an area" and defining "interior" as "the internal part or area").

Looking at the landscaping plan sheet of the approved site plan, it is immediately apparent that very little of the landscaping is located within the inner or interior portions of the parking lot. As approved, the Developer's site plan depicts only two small planting islands within the parking lot itself, totaling less than 240 square feet, [Note 20] which is less than one percent of the parking lot area. Contrary to the Defendants' contention, the landscaped area abutting the southwest corner of the sidewalk that runs along the southern and western edges of the CVS pharmacy building is not within the interior of the parking area as that term is commonly understood. To credit the interpretation of the term "interior" provided by Defendants' expert – whose testimony on this subject, in any event, was circular and not well-explained – this court would have to find that the "Loading Area" and the area labeled "NO PARKING – FIRE LANE," must be included within the parking area. I decline to so find. This area, which does not allow parking, forms a part of the perimeter of the parking area, as that term is commonly understood, and thus defines one of the boundaries of the parking lot. Therefore, the approximately 500 square foot planting area depicted as abutting the southwest corner of the sidewalk that runs along the southern and western edges of the CVS pharmacy building may not be used to meet the minimum two percent interior landscaping requirements of the Bylaw.

Accordingly, as the approved site plan does not comply with the two percent interior landscaping requirement of Bylaw Section 5.1.9(7), and the Site Plan Decision does not contain any conditions ensuring compliance, the Site Plan Decision exceeded the ZBA's authority.

CONCLUSION

For the reasons stated, the Site Plan Decision is legally untenable and exceeded the ZBA's site plan approval authority. [Note 21] Accordingly, judgment shall enter ANNULLING the Site Plan Decision.