MURROW vs. EMERY, MISC 14-481466

Claudia Murrow (Murrow) appeals the decision of the Somerville Zoning Board of Appeals granting a special permit to Kevin Emery (Emery) to construct a four-unit residential building in a zone where three-unit buildings are allowed as of right and larger buildings require a special permit. After trial, I find that because the proposed project will have almost no discernable impact on Murrow's property or the neighborhood generally, Murrow lacks standing and the special permit was properly issued.

PROCEDURAL HISTORY

Claudia Murrow filed her complaint on February 3, 2014, naming as defendants members of the City of Somerville Zoning Board of Appeals (ZBA) and Emery. The case management conference was held on March 25, 2014. Emery filed his application for judgment of final dismissal on June 4, 2014. The application for final judgment of dismissal was denied on July 11, 2014. Emery filed Defendant Kevin Emery's Motion for Summary Judgment (Summary Judgment Motion), Memorandum in Support of Defendant Kevin Emery's Motion for Summary Judgment, Statement of Material Facts of Defendant Kevin Emery, and Appendices A and B on December 19, 2014. Murrow filed Plaintiff's Brief in Opposition to Defendant Kevin Emery's Motion for Summary Judgment, Plaintiff's Rule 4 Response to Statement of Facts of Defendant Kevin Emery, and the Affidavit of Claudia Murrow in Support of Plaintiff's Opposition to Defendant Kevin Emery's Motion for Summary Judgment on January 21, 2015. Emery filed Defendant Kevin Emery's Reply to Plaintiff's Brief in Opposition to His Motion for Summary Judgment, Defendant Kevin Emery's Response to Plaintiff Claudia Murrow's Additional Statement of Material Facts, and Defendant Kevin Emery's Motion to Strike Paragraphs 10, 12 and 15 of Affidavit of Claudia Murrow (Motion to Strike) on February 13, 2015. Plaintiff's Opposition to Defendant's Motion to Strike was filed on February 18, 2015. The Summary Judgment Motion and the Motion to Strike were both heard on February 18, 2015. On October 22, 2015, the court issued a Memorandum and Order Allowing in Part and Denying in Part Defendant Kevin Emery's Motion for Summary Judgment and Motion to Strike (Summary Judgment Order).

A pre-trial conference was held on February 26, 2016, where the court stated that issues of standing will be limited to those set forth in the court's Summary Judgment Order. A view was held on September 21, 2016. The trial was held on September 26-27, 2016. Testimony was heard from Kumar Dangi, Ellen Christensen, Kathy Guo, Claudia Murrow, Deputy Chief William Hallanan, Kevin Emery, Erin Fredette, David Coate, and Gregory Story. Exhibits 1-46 were marked. Following the first day of trial, Emery filed a Motion for a Directed Verdict, which the court allowed in part and denied in part without prejudice. The Motion for a Directed Verdict was allowed with respect to plaintiff's standing on the basis of noise and lost property value, as the court found that the plaintiff did not present evidence on those bases. The Motion was denied with respect to plaintiff's standing on the basis of traffic impacts and fire vehicle access. After the second day of trial, Murrow moved for a directed verdict, which the court denied without prejudice. Emery renewed his motion for a directed verdict, which the court denied without prejudice.

Defendant Kevin Emery's Proposed Findings of Fact and Request for Rulings of Law, Plaintiff's Trial Brief, Plaintiff's Request for Findings of Fact, and Plaintiff's Request for Rulings of Law were filed on December 1, 2016. The court heard closing arguments on December 7, 2016, and took the case under advisement. This decision follows.

FINDINGS OF FACT

Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact, reserving certain details for my discussion of specific legal issues:

The Project Site

1. On September 13, 2012, Kevin Emery (Emery) was conveyed property located at 10 Allen Court, Somerville, Massachusetts (Emery Property) by a deed from Robert D. Klapper and Deborah R. Klapper recorded with the Middlesex South Registry of Deeds (registry) on September 21, 2012, in Book 60062, Page 149. The existing structure on the Emery Property is a 3-bedroom single family home with two parking spaces. Tr. 2:8; Exhs. 9, 36, ¶ 1.

2. Abutting the Emery Property to the west is Conway Park, owned by the City of Somerville (City). There is a retaining wall located along the boundary line between the Emery Property and Conway Park. Tr. 1:29; Exh. 10; View.

3. Allen Court is a private way which is a dead end at the Conway Park end and exits at the other onto Park Street. It is approximately 14 feet wide at the entrance where it directly abuts Park Street along the sidewalk and widens to approximately 20 feet after entering onto the paved surface. Tr. 1:51, 72; Tr. 2:129, 138-139; Exh. 33; View.

4. Park Street terminates at one end at Somerville Avenue and runs about 1/3 of the mile in the other direction towards Beacon Street. Allen Court is approximately 300 feet from the Park Street/Somerville Avenue intersection and, in the direction toward Beacon Street, about 100 feet from a Massachusetts Bay Transportation Authority (MBTA) commuter train line. View.

5. Allen Court provides access to three properties: the Emery Property, 7-9 Allen Court, and 25-27-29 Park Street (27 Park Street). The Emery Property and 7-9 Allen Court are directly across from each other at the Conway Park end of Allen Court. Traveling straight down Allen Court from Park Street, the Emery Property can be accessed off to the left while the 7-9 Allen Court and 27 Park Street properties can be accessed to the right. Tr. 1:64, 78, 98; View.

6. The 27 Park Street property has frontage on Park Street. The building contains nine condominium units. The residents of 27 Park Street enter their property and access their parking by going down Allen Court and taking a right. To the right off Allen Court, in between 7-9 Allen Court and 27 Park Street, is a paved parcel of land used as a parking lot for the residents of 27 Park Street. There are six spots. The residents of the Emery Property and the 7-9 Allen Court Property do not have a right to park in these six spots. Tr. 1:41-42, 65, 98, 172-173; Exh. 46; View.

7. The Emery Property lies in the Business A Commercial Zoning District (BA zoning district) of Somerville pursuant to the Somerville Zoning Ordinance (Ordinance). The Ordinance permits a wide range of uses in the BA zoning district, including retail business and services, housing, government, professional and medical offices, and places of amusement. In the area of the intersection of Park Street and Somerville Avenue there are residential structures, industrial buildings, shopping plazas, and retail establishments. Section 7.11 of the Ordinance allows single, duplex, and 3-family residences on a lot by right in the BA zoning district. The Ordinance allows multi-family dwellings in the BA zoning district with up to 6 units, either new or converted, by special permit. Tr. 1:106; Tr. 2:197; Exhs. 3-4, 36, ¶ 2.

The Proposed Development

8. Emery has worked as a real estate developer for 30 years and has developed over 100 units in Somerville during that time. He has held a Massachusetts Construction Supervisor license for approximately 25 years. Emery desires to construct a four unit multi-family dwelling on the Emery Property. Tr. 2:6-7.

9. On November 20, 2012, the Somerville Historic Preservation Commission recommended that the single family house on the Emery Property not be preserved, as the Commission did not find that the demolition of the structure would be detrimental to the heritage of the City, and, therefore, was not in the best interest of the public to preserve or rehabilitate due to minimal visibility of the structure, lack of a coherent streetscape, loss of historic setting, and comparable structures that represent the same historic context within a comprehensive streetscape and neighborhood as well as integrity of material. The Commission noted the Emery Property's historic use as a residential property since the 1800s. Exhs. 28-29.

10. Emery met with the City planning department three or four times before filing his special permit application with the ZBA for the development of the Emery Property. Originally, Emery proposed two separate buildings with two units in each building. The City planning staff provided their opinions on the development, and together Emery and the staff put together a more suitable preliminary plan that included a single building with four 2-bedroom units. The proposed dwelling was designed so that aside from requiring a special permit, there were no other zoning violations. A few months later, Emery filed his application. Tr. 2:9-11, 17-22, 49; Exhs. 10, 24.

11. On March 5, 2013, Emery filed an application with the ZBA for a special permit for the fourth unit in the proposed multi-family dwelling on the Emery Property.

Exhs. 4, 11, 36 ¶ 3.

12. Section 1.2 of the Ordinance states that the purpose of the Ordinance is:

[T]o promote the health, safety, and welfare of the inhabitants of the City of Somerville; to provide for and maintain the uniquely integrated structure of uses in the City; to lessen congestion in the streets; to protect health; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; to conserve the value of land and buildings; to preserve the historical and architectural resources of the City; to adequately protect the natural environment; to encourage the most appropriate use of land throughout the City; to encourage housing for persons of all income levels; and to preserve and increase the amenities of the municipality.

Exh. 1.

13. Section 5.1.2 of the Ordinance states that the ZBA:

[S]hall, in its discretion, require [certain basic and additional information] for all applications for special permits . . . Only that information which is applicable to a proposed use or structure will be required of the applicant. The applicant is strongly encouraged to have a preliminary meeting with the Planning Board staff and, if necessary, the Design Review Committee before submitting the application to help the applicant identify the applicable information requirements as well as any design-related issues that may arise.

Exh. 2.

14. On his special permit application, Emery provided contact information for himself and his architect, a brief description of the proposed project, total floor area and ground coverage ratio for the proposed building, elevations of the proposed building, a plot plan certified by a land surveyor, plans showing the present and proposed uses of the land and existing buildings, including dimensions such as height, setback, and square footage of each floor, landscape plan, a plan of location and dimensions of Allen Court, and a plan of the location, number and dimensions of parking spaces and driveway. Tr. 2: 13; Exhs. 10-25.

15. The lot size of the Emery Property is 4,942 square feet. There is no minimum lot size in the BA zoning district. Tr. 2:17; Exhs. 5, 21.

16. The proposed dwelling is 1,932 square feet, and the ground coverage for the proposed dwelling is 39% of the total lot area. The maximum allowed in the BA district is 80%. Tr. 2:19; Exhs. 5, 21.

17. The Floor Area Ratio (FAR) for the proposed dwelling is 1.6. The maximum allowed for the BA district is 2.0. Tr. 2:18; Exhs. 5, 21.

18. The proposed lot area per dwelling unit is 1,235 square feet. The minimum required in the BA district is 875 square feet per dwelling unit for a four-unit property. Tr. 2:17- 18; Exhs. 5, 21.

19. The height of the new building will be four stories and 36 feet high. The maximum allowed height in the BA district is four stories and 50 feet high. Tr. 2:20; Exhs. 5, 12-15, 17-20.

20. The Emery Property has 70.82 feet of frontage on Allen Court. There is no minimum frontage requirement in the BA district. Tr. 2:21-22; Exhs. 5, 21.

21. The proposed development has a front yard setback of five feet, a left side yard setback of 20 feet, and a right side yard setback of 5 feet. There is no minimum setback requirement for these sides in the BA district. Only a minimum rear yard setback of 16 feet is required, which the proposed dwelling satisfies with a 20 foot rear yard setback. Tr. 2:20-21; Exhs. 5, 21.

22. The proposed landscaped area percentage will be 31%. The minimum required percent of landscaped area of a lot is 10% in the BA district. A professional landscape plan was submitted to the ZBA showing ten different types of bushes, trees in the front of the house, shrubs along the right side, with a lawn and bike rack in the rear, and the paved driveway to the left. A proposed six foot fence is shown on the landscaping plan that will be located on the property line, bordering the driveway. Tr. 2:19-20, 27-29, 74-75; Exhs. 5, 11, 23.

23. Emery testified that the garage exterior walls would be built with 2 x 4 studs, which actually have the dimensions of 1.5 x 3.5 inches. Although the dimensions of these walls are not depicted on any plans, I credit Emery's testimony. The distance between the interior side of the garage wall which adjoins the dwelling to the exterior side facing the driveway is 19.5 feet and the exterior distance of the garage along the driveway is 42 feet (although incorrectly labeled as 46 feet on the plan). The proposed development will have six parking spaces, the minimum number required for a structure with four 2-bedroom dwelling units. Four of the parking spaces are to be located inside a proposed garage and the remaining two parking spaces are to be located on the driveway. All six parking spaces will have dimensions of at least nine feet by eighteen feet, satisfying the minimum width and depth for parking spaces under the Ordinance. The proposed driveway is 20 feet by 68.20 feet. The turning radius from the driveway into the garage is at a 90 degree angle. Tr. 2:22-26, 52-59, 63, 66-69; Exhs. 6-7, 11, 16-17, 21, 23.

24. There will be four garbage bins and four recycling bins provided by the City, one of each per unit, which will be stored in the garage. The location of the bins could be moved around in the garage from where it is shown on the plan. Tr. 2:59-63; Exhs. 17, 26.

25. Emery testified that because the garage is supporting three stories above, some mechanism of support would need to be used such as a column or an I-beam or microllam beams, which would not require space on the ground. That decision would come at a later a time when construction drawings are done for a building permit and was not something that the ZBA required in his special permit application. Tr. 2:65-66.

26. Section 5.1.4 of the Ordinance states that prior to granting a special permit, the ZBA must make findings that the proposed building which is the subject of the application for the special permit complies with the Ordinance as follows:

a) Information supplied. Complies with the information requirements of Section 5.1.2;

b) Compliance with standards. Complies with such criteria or standards as may be set forth in this Ordinance which refer to the granting of the requested special permit;

c) Consistency with purposes. Is consistent with: (1) the general purposes of this Ordinance as set forth in Article 1, and (2) the purposes, provisions, and specific objectives applicable to the requested special permit which may be set forth elsewhere in this Ordinance, such as, but not limited to, those purposes at the beginning of the various Articles; and

d) Site and area compatibility. Is designed in a manner that is compatible with the existing natural features of the site and is compatible with the characteristics of the built and unbuilt surrounding area, including land uses.

Where the [ZBA] determines that one or more of the following objectives are applicable to the particular application for a special permit, the [ZBA] shall make a finding and determination that each applicable objective will be met including, but not limited to:

f) Vehicular and pedestrian circulation. The circulation patterns for motor vehicles and pedestrians which would result from the use or structure will not result in conditions that create traffic congestion or the potential for traffic accidents on the site or in the surrounding area.

Exh. 2.

27. On November 14, 2013, Emery met with the Design Review Committee (DRC), which made recommendations on reducing the proposed building's perceived massing while keeping with its traditional building style, including:

* The overall height of the building be diffused by delineating the materials. The first floor should have a trim board separating it from other levels and siding with greater exposure than the rest of the building. This detail should be carried through on all sides of the building, and the horizontal trim board should be reflected on the corner pilasters so that they do not run the entire four stories of the building un-broken.

* The garage doors should match the siding color chosen so they recede into the background. This elevation will face Park Street.

* The fenestration, especially on the front façade, should be symmetrical.

* The landscape plan needs more development including species type. Street trees should be considered.

* The DRC requested the following items be located for the next presentation: bike parking, mechanical systems, gas meters, and trash storage.

Emery incorporated the recommendations and returned to the DRC on December 19, 2013. The DRC asked that the casement window on the side and fixed window in the front be replaced with double-hung windows to match the rest of the windows on the building. They also recommended keeping the air conditioning condensers in the back yard as shown on the site plan to reduce impacts of noise and appearance for their residential neighbors. Finally, the Committee asked to review samples of the materials and colors before they were installed. Exh. 28.

28. After a public hearing, the ZBA issued a decision on the application on January 8, 2014 (Decision). Exhs. 26, 36, ¶ 3.

29. The Decision unanimously granted Emery a special permit to tear down the existing structure on the Emery Property and replace it with a new 4-unit residential building, consisting of a single structure with four two-bedroom units. The special permit allows four two- bedroom apartments and a total of six parking spaces, four in a garage and two outside. In the Decision, the ZBA found that the proposal meets all dimensional, setback, and parking requirements of the Ordinance. The Decision also imposed 21 conditions on the grant of the special permit. Exhs. 26, 36, ¶ 4.

30. Claudia Murrow (Murrow) appealed the Decision granting Emery the special permit. Murrow owns and resides in Unit #2 of a five-unit condominium at 23 Park Street, Somerville, Massachusetts (Murrow Property). The adjoining building, 21 Park Street, is an identical five-unit condominium. To the south of the Murrow Property is 7-9 Allen Court and 27 Park Street. Murrow is an abutter to these direct abutters of the Emery Property. The Murrow Property lies 83 feet from the Emery Property. There are no windows in Murrow's condominium facing the Emery Property that would make the proposed development visible to Murrow from inside her condominium unit. Murrow does not share the same parking area as residents of the three properties along Allen Court. Murrow's parking area is directly in front of her condominium building off Park Street in between Allen Court and Somerville Avenue. She does not use Allen Court to access her parking area to her property, but accesses it directly from Park Street. While Murrow argued that the special permit would cause her to suffer 23 different kinds of injuries, the only injuries remaining after summary judgment and trial as potential sources of standing are increased traffic and fire vehicle access. Tr. 1:97-98, 154-155, 158, 176; Exh. 36, ¶ 5; Exh. 42; View.

Traffic

31. During weekday peak rush hours there is traffic on Park Street leading up to Somerville Avenue, and in the opposite direction towards the MBTA commuter train tracks and Beacon Street. Traffic is not as bad during non-rush hours and is significantly less on the weekends. When vehicles queue on Park Street in front of the Murrow Property and Allen Court during weekday rush hours, it can be difficult for vehicles to enter and exit Allen Court and Murrow's parking lot. Tr. 1:30, 72-73, 87-88, 99-100; Tr. 2:115; View.

32. Erin Fredette (Fredette), a project manager at McMahon Associates (McMahon), a traffic engineering and transportation planning consulting firm testified as to potential traffic issues caused by the development of the Emery Property. Fredette has a Bachelor's Degree in Civil Engineering with a focus in transportation from Northeastern University and holds a professional engineer's license in Massachusetts. As project manager she works on a number of projects in reference to traffic engineering as well as transportation planning. Those projects include everything from traffic safety analysis, review of crash diagrams, accident reports, methods to mitigate unsafe conditions, transportation planning, review of trip generation, capacity analysis, and impacts from projects. She also does conceptual designs for roadway and intersection improvements, conducts peer reviews from municipalities, and gives presentations on traffic studies to municipalities. Tr. 2:108-114.

33. In January of 2016, Emery hired McMahon to do a traffic assessment for the development at the Emery Property. The first task of that study was to assess existing traffic conditions at the intersection of Allen Court and Park Street, as well as roadways in the vicinity of that intersection (subject area). This began with a manual traffic count of vehicles entering and exiting Allen Court during peak traffic periods and observations of the traffic along Park Street. Those observations were made over the course of two dayson Thursday, January 14, 2016, from 7:00 a.m. to 8:00 a.m. and Thursday, January 21, 2016, from 5:00 p.m. to 6:00 p.m. During the weekday morning peak hour, it was observed that traffic flowed fairly efficiently with limited congestion even with a passing MBTA train. During the weekday afternoon peak hour, it was observed that a queue on Park Street from Somerville Avenue extended back towards the MBTA train tracks and Beacon Street. No more than two vehicles were ever observed to be entering or exiting Allen Court. Vehicle queues on Park Street never exceeded more than four vehicles and never interfered with vehicles exiting or entering Allen Court. Tr. 2:113-116, 128-129; 156-158.

34. A traffic safety analysis of the area was also done, which included reviewing crash data provided by the Massachusetts Department of Transportation (Mass DOT). Fredette reviewed the yearly summary of crash data from 2011 to 2013 and found there have been no crashes at the intersection of Allen Court and Park Street or locations within 100 to 200 feet surrounding the intersection during that time frame. Tr. 2:116-117, 159-160.

35. Fredette also compared existing traffic conditions with projected conditions at the Emery Property if it was developed. Fredette used data from the Institute of Transportation Engineers (ITE) publication Trip Generation, 9th Edition, the latest edition, which provides industry-standard statistics, based on constantly updated actual traffic counts on how much traffic a particular land use generates. Fredette used the traffic statistics from Land Use Code (LUC) 210 (Single-Family Detached Housing) for the existing conditions and used LUC 220 (Apartment) for the proposed four unit apartment development. Based on a comparison of the number of trips expected to be generated during peak hours under both the existing and proposed conditions, Fredette identified a total increase resulting from the proposed project of only one vehicle trip during the weekday morning peak hour and one vehicle trip during the weekday afternoon peak hour. Fredette testified that an increase of a single vehicle during peak hours was negligible and that a magnitude of one additional car would be unperceivable on a roadway such as Park Street. She opined that because of this negligible addition, there would be no impact on traffic safety in the subject area. I credit Fredette's analysis and conclusion that the increase in traffic caused by the development of the Emery Property will have a de minimis impact, if any, to the traffic in the vicinity. Tr. 2:117-120, 162-164.

36. Fredette performed a site distance analysis as part of the safety review in the traffic assessment in order to verify that vehicles traveling on both Park Street and Allen Court are able to see each other and react in sufficient time to avoid a collision. Based on the observations of traffic conditions in the subject area and vehicle speeds on a roadway such as Park Street, she determined that the minimum required site distance, as defined by the American Association of State Highway and Transportation Officials (ASHTO), is 200 feet. Using field measurements, Fredette determined that from Allen Court looking to the left down Park Street there was a site distance of approximately 320 feet and to the right down Park Street there was a site distance of approximately 310 feet. Since both distances exceeded the minimum required by ASHTO, Fredette concluded that vehicles are able to safely enter and exit Allen Court onto Park Street. I credit Fredette's finding that there is an adequate site distance for the safe travel of vehicles coming and going from Allen Court to Park Street. Tr. 2:120-121, 164; View.

37. Fredette opined that vehicular circulation on Allen Court will be conducted in a safe and efficient manner due to the low volume of cars and the low speeds on Allen Court, a residential driveway. Passenger vehicles are not expected to experience significant conflicts while entering or exiting the Emery Property. I credit Fredette's conclusion that vehicular circulation on and off Allen Court will not be an issue. Tr. 2:134, 139-141, 148, 165-167; View.

38. Murrow testified that Park Street is already heavily congested in front of the Murrow Property and Allen Court, making it difficult for her to enter and exit her parking lot. Murrow stated that large trucks regularly use the loading dock across from Allen Court, which further exacerbates the congestion of traffic. In addition, she offered evidence that trucks and other vehicles regularly park on her side of Park Street blocking her parking lot. The queued line of traffic sometimes causes drivers to drive on the wrong side of Park Street in an effort to avoid the traffic, which makes driving on Park Street even more hazardous. Tr. 1:99-100, 103-104, 110-112, 164-168, 171, 180, 183; Exhs. 31, 38, 42-45.

39. Kumar Dangi (Dangi) has owned the property at 7 Allen Court, a townhouse adjacent to 9 Allen Court, since 2005. Dangi testified that the traffic on Park Street has gotten worse since he moved into 7 Allen Court, although the traffic has been bad for many years. He referred to it as "going to war" every time he attempted to merge onto Park Street from Allen Court heading towards Somerville Avenue during rush hour. He acknowledged that the traffic on Park Street was not caused solely by residents of the buildings off Allen Court, but by any new buildings in the area that add more vehicles. Dangi also stated that some of the traffic was the result of a loading dock situated directly across the street from Allen Court, opposite Park Street, where 12- or 18-wheeler trucks would make deliveries a few times a day and block traffic. He preferred the neighborhood before the recent developments, when there were less people, and did not want any new buildings going up on Allen Court. Dangi described how the parking on Allen Court has also been problematic in the past. Dangi parks his vehicle directly in front of his house on the far right side of the dead end of Allen Court. He has seen cars parked on both sides of Allen Court, particularly from the residents of 27 Allen Court because they only have six parking spaces for the nine units. The prior owners of the Emery Property sometimes would park their vehicles in front of their house instead of in the driveway. Because vehicles belonging to residents of the Emery Property and 27 Allen Court would sometimes impede his ability to exit Allen Court onto Park Street, Dangi has had to ask those owners to move their vehicles in advance if he needed to leave at a particular time. Tr. 1:29, 31, 35-36, 41-42, 45-48, 52, 54-55, 57-59, 63; Exhs. 30, 35; View.

40. Ellen Christenson (Christenson) and Irene Saletan are twin sisters that own the property at 9 Allen Court, and sold 7 Allen Court to Dangi around 2005. Christenson testified that she and her sister only reside at 9 Allen Court for about three months out of the year, primarily during the spring and fall months, and that they usually have someone housesit for them so that the dwelling is always occupied. She stated that she does not own a vehicle, but their house sitter usually does and parks it in approximately the same area as Dangi, directly in front of the house on the far right side of the dead end of Allen Court. Christenson testified that she sold her car because the parking situation on Allen Court became too difficult. The prior occupants of the Emery Property would sometimes park in front of their house on Allen Court instead of using their driveway. Christenson now takes public transportation and often sees the traffic backing up on Park Street from Somerville Avenue when she is walking to her stop. Since she moved into 9 Allen Court in 1999, Christenson attested that there have been many changes to the neighborhood that have increased the congestion, including the 21-23 Park Street condominium development in which Murrow resides. Her main issue with the development of the Emery Property was with parking and the location of the driveway. Christenson requested that the City have Emery relocate the driveway on the Emery Property to the left of the dwelling, instead of its original position to the right, to which Emery complied. Tr. 1:69-77, 79-83; Exhs. 30, 31, 37; View.

41. I do not credit the testimony that cars will not be able to enter and exit the Emery Property. Rather, based on Fredette's testimony, Emery's testimony, and the view, I find that cars will be able to enter and exit the Emery Property even when cars are parked in front of Dangi's and Christenson's properties.

42. Abutting the left side of Allen Court, opposite 27 Park Street, is a printing business at 33 Park Street owned by Kathy Guo (Guo). Guo lives in Concord, Massachusetts and commutes to Somerville each day. Guo has observed the traffic on Park Street when arriving and leaving work during rush hours. She has worked at 33 Park Street for over twenty years and recalled that the traffic on Park Street has gotten worse over the years. Guo parks her vehicle on the front left-side area of Allen Court, the section closest to her property line. Sometimes her clients also use this parking spot. She has had problems with the occupants of 27 Park Street parking in that location. View; Tr. 1:85-88, 91-92, 94-95; Exhs. 30-31.

Fire Access

43. Emery presented the testimony of William Hallinan (Hallinan), Deputy Chief of the City of Somerville Fire Department. Hallinan has worked in the firefighting field for approximately 30 years. He has an Associate's Degree in Fire Science from Bunker Hill Community College and is currently enrolled in a Bachelor's Degree program in Fire Science Management at Salem State University. He is a certified fire inspector, certified fire instructor, certified EMT, and certified hazardous materials technician. Hallinan is currently a shift commander and oversees one of four groups of firefighters in Somerville. When he was Deputy Chief of fire prevention it was a regular part of his duties to review special permit applications to see if they met the fire code for fire department access, as well as review compliance with proper fire alarm and sprinkler systems. While Deputy Chief of fire prevention, Hallinan reviewed Emery's plans and his special permit application for the Emery Property in response to a request from the City planning department. Hallinan visited the Emery Property as part of his review. He concluded that Emery's proposed development was compliant with the fire code in that it will have the proper fire alarm and sprinkler systems in place and the dimensions and location of the proposed dwelling provided sufficient access for the fire department to perform its duties on any side of the building. However, for practical reasons Hallinan requested that the dwelling be moved five feet away from the retaining wall on the right side of the dwelling. He stated that the fire department prefers to have at least five feet of access on all sides of a building, although the fire code only requires one side to be accessible. Emery complied with this request. Hallinan didn't find anything else concerning from a fire safety standpoint in Emery's special permit application. Tr. 1:122-130; 145-148; Tr. 2:13, 29; Exhs. 12-21, 27.

44. Hallinan stated that he was familiar with location of Allen Court. The closest fire station in Somerville is about .4 mile from the Emery Property and the response time would be approximately three to four minutes, even during rush hour. In the event of a fire, six fire companies and the Chief's vehicle would respond to the area. He attested that Allen Court in its entirety is considered a 20 foot wide fire lane. He noted a sign posted by the City marking the fire lane and stating that it was a tow zone where no parking was allowed any time. Hallinan opined that because most fire trucks are 12 feet wide they would be able to fit down Allen Court, even with cars parked on one side, but not when parked on both sides. With the proposed height of the building being 36 feet high, aerial apparatuses would be needed to access the roof. All fire trucks carry this equipment and would be able to go up to a height of 40 feet. He said that even if vehicles on Allen Court were impeding the fire department's access to the Emery Property, they could stop on Park Street and connect their hoses to hydrants nearby and drag them to the property along with ladders. Hallinan testified that the fire department can use hydrants within approximately 200 feet of a subject property in the event of an emergency. In this case, he stated there was a fire hydrant located directly across from Allen Court on the opposite side of Park Street, approximately 80 feet from the Emery Property, and a second fire hydrant at the corner of Somerville Avenue and Park Street, approximately 150 feet from the Emery Property. He also stated that any vehicles blocking the fire department's access could be towed from the fire lane. Hallinan was not aware of any response to a fire at Allen Court in the last 30 years. I credit Hallinan's testimony and his finding that there are no fire safety issues at the Emery Property as a result of the proposed development. Tr. 1:130-135, 138-139, 142-148; Exhs. 12-21, 32-33, 38; View.

45. Murrow testified that she did not believe that fire trucks or emergency vehicles could drive down Allen Court. She stated that she has witnessed fire trucks parking along Park Street when accessing her building and buildings off of Allen Court. Most recently, she observed a fire truck parked on Park Street in the spring of 2016. Tr. 1: 99-100, 103-104, 110-112, 164-168, 171, 180, 183; Exhs. 31, 38, 42-45.

46. Dangi testified that he has never seen any emergency response vehicles on Allen Court. In the past, he has called an ambulance twice, once for himself and once for his son. On both occasions the ambulance did not enter Allen Court, but parked on Park Street and used a stretcher to transport him and his son from 7 Allen Court to the ambulance. Tr. 1:29, 31, 35-36, 41-42, 45-48, 52, 54-55, 57-59, 63; Exhs. 30, 35.

47. Christenson has never seen an emergency vehicle on Allen Court the entire time she has lived at 9 Allen Court. She testified that she doesn't think a fire truck could fit down Allen Court, but didn't know for sure one could not fit because she had never seen one. Tr. 1:69-77, 79- 83; Exhs. 30, 31, 37.

48. Guo uses toxic, combustible chemicals in her printing business that could likely cause the building to explode if there were a fire. These chemicals are stored in fire proof cabinets. Guo testified that she notified the Somerville Fire Department of the chemicals stored at her property and they do an annual safety inspection of the manner of storage, which they have approved. Tr. 1:85-88, 91-92, 94-95; Exhs. 30-31; View.

Noise

49. David Coate (Coate), the principal of David Coate Consulting (DCC), which does analysis of acoustics and various subsets of acoustics such as vibrations and noise control, was retained by Emery to perform a noise assessment at Allen Court. Coate has worked in the acoustics field for over 35 years. He has Bachelor Degrees in mathematics, chemistry and physics from Westminster College and a Masters in nuclear engineering from the Massachusetts Institute of Technology. He is also a member of the Acoustical Society of American, Transportation Research Board, and Institute of Noise Control Engineering. As part of his work at DCC, Coate goes out and measures noise levels in neighborhoods from which he develops computer models to assess the noise level, measure vibrations, and design acoustical controls and noise mitigation. He has served as an acoustics expert numerous times. Tr. 2:171-174, 176.

50. Coate conducted a site visit to assess the existing ambient noise environment in the area and potential noise impact from the development. Coate found that the average ambient level of noise at the Emery Property is 60.8 decibels, which is typical of an urban environment. The dominant noises in the area include the MBTA commuter train, overhead flights, birds, and the cumulative effect of noises typical of urban environment. Coate stated that noise from additional vehicles from the development of the Emery Property would be the highest contributing noise to the ambient level. Tr. 2:176-179, 182-183, 185.

51. To assess how much noise the development would contribute to the existing ambient level, Coate measured the sound of a vehicle pulling out of the driveway at 10 Allen Court and driving down Allen Court. The sound exposure levels were found to be 63 decibels leaving the Emery Property and 62 decibels returning to the Emery Property. Coate used these values to calculate the day and night noise level (DNL) contributions of the additional vehicles entering and exiting Allen Court. Coate opined that the vehicle DNL contribution is relatively low. Coate testified that the DNL contributions from additional vehicles would increase the noise level at the site by less than .01 decibels. He attested that this contribution is "astronomically negligible" to the ambient noise environment. Coate stated that the increase is not discernible by the human ear, where 3 decibels is the threshold of discernibility for most humans. I credit Coate's testimony and finding that the contributions from additional vehicles from the proposed development of the Emery Property would be "astronomically negligible" to the ambient noise level. Tr. 2:180-184.

Property Values

52. Gregory Story (Story), a licensed real estate appraiser, testified that he did not see any decrease in the value of the Murrow Property or the Somerville real estate market in general, as a result of granting the special permit. Story testified that the Somerville real estate market is robust. Property values in Somerville on average increased by 2-6% from 2014 to 2015. He attested that Murrow's condominium building at 23 Park Street has outperformed the average increase in real estate value in Somerville from 2014 to 2015. A unit within 23 Park Street sold during that time frame at an appreciation rate of 17.3%. I credit Story's testimony that property values are not impacted by the proposed development of the Emery Property. Tr. 2:197-199.

DISCUSSION

Murrow claims that the ZBA exceeded its authority in granting Emery the special permit for the fourth unit of his proposed multi-family dwelling. Murrow claims she is aggrieved by the January 8, 2014 Decision because of traffic and fire access impacts that will result from the proposed development. Emery challenges Murrow's standing to maintain this appeal, arguing that she is not, in fact, aggrieved. Emery further asserts that the special permit was properly granted by the ZBA. Because I find that Murrow is not aggrieved by the Decision, her appeal is dismissed on that basis and I need not reach the underlying question of whether the ZBA exceeded its authority in grating the special permit. However, in the interest of completeness, I also address the merits of the granting of the special permit.

Standing.

In order to have standing to challenge the issuance of the Decision upholding Emery's zoning permit, Murrow must be "person[s] aggrieved" by the Decision. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702-703 (1998). Persons entitled to notice under G.L. c. 40A, § 11, including abutters to the subject property and abutters to abutters within 300 feet of the subject property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of § 17. G.L. c. 40A, § 11. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). The record shows that Murrow is an abutter to an abutter within 300 feet of 10 Allen Court. Therefore, she was entitled to the presumption that she is aggrieved.

In the October 22, 2015 Memorandum and Order Allowing in Part and Denying in Part Defendant Kevin Emery's Motion for Summary Judgment, I found that the presumption of standing had been sufficiently rebutted by Emery and Emery demonstrated that issues of drainage, impact to a retaining wall, impact to garbage pick-up, increased rodents, increased fumes and dust, increased electromagnetic radiation, traffic convenience, loss of privacy, enhanced danger from fire, safety hazards, increased wind, trespass from pets, increased vibrations, discouragement of housing for persons of all income levels, and diminished value of surrounding properties could not form a basis for Murrow's standing. I also held that the presumption of standing had been sufficiently rebutted on issues of traffic, fire vehicle access, noise, and lost property value, which required further factual inquiry at trial. After the first day of trial, I allowed Emery's motion for a directed verdict with respect to Murrow's standing on the basis of noise and lost property value, after finding that the plaintiff did not present evidence on those bases. Following trial, the only remaining grounds for Murrow's standing are those based on traffic and fire vehicle access.

Since the presumption of standing was rebutted, Murrow bears the burden to present evidence that would establish that she will suffer some direct injury to a private right, private property interest, or private legal interest as a result of the Decision that is special and different from the injury the Decision will cause to the community at large, and that the injured right or interest is one that c. 40A or the Ordinance is intended to protect, either explicitly or implicitly. 81 Spooner Road, LLC, 461 Mass. at 700; Kenner, 459 Mass. at 120; Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27-28 (2006); Marashlian, 421 Mass. at 721; Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005); Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129 , 132-133 (1992); see Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998). Aggrievement is not defined narrowly; however, it does require "a showing of more than minimal or slightly appreciable harm." Kenner, 459 Mass. at 121-123 (finding the height of the new structure to have a "de minimis impact" on Plaintiffs' ocean view). The evidence must be both quantitative and qualitative. Butler, 63 Mass. App. Ct. at 441. Quantitative evidence "must provide specific factual support" for each injury the plaintiff claims. Id. Qualitative evidence is held to a reasonable person standard. Id. The two remaining grounds on which Murrow relies for her standing are discussed in turn.

1. Traffic

Murrow argues that the proposed dwelling will increase traffic congestion on Park Street and impede her ability to access her parking lot. At trial, Emery presented the testimony of Erin Fredette, a project manager at McMahon, a traffic engineering and transportation planning consulting firm. Fredette testified as to potential traffic issues caused by the development of the Emery Property. I find that testimony both credible and persuasive.

McMahon was retained by Emery in January of 2016 and asked to do a traffic assessment for the development at the Emery Property. The first task of that study was to assess existing traffic conditions at the intersection of Allen Court and Park Street, as well as roadways in the vicinity of that intersection (subject area). This began with a manual traffic count of vehicles entering and exiting Allen Court during peak traffic periods and observations of the traffic along Park Street. Those observations were made over the course of two dayson Thursday, January 14, 2016, from 7:00 a.m. to 8:00 a.m. and Thursday, January 21, 2016, from 5:00 p.m. to 6:00 p.m. During the weekday morning peak hour, it was observed that traffic flowed fairly efficiently with limited congestion even with a passing MBTA train. During the weekday afternoon peak hour, it was observed that a queue on Park Street from Somerville Avenue extended back towards the MBTA train tracks and Beacon Street. No more than two vehicles were ever observed to be entering or exiting Allen Court. Vehicle queues on Park Street never exceeded more than four vehicles and never interfered with vehicles exiting or entering Allen Court. A traffic safety analysis of the area was also done, which included reviewing crash data provided by Mass DOT. Fredette reviewed the yearly summary of crash data from 2011 to 2013 provided by Mass DOT and found there have been no crashes at the intersection of Allen Court and Park Street or locations within 100 to 200 feet surrounding the intersection during that time frame.

The next phase of the study was to compare existing traffic conditions with projected conditions at the Emery Property if it was developed. This was done using trip counts. Fredette used data from the Institute of Transportation Engineers (ITE) publication Trip Generation, 9th Edition, the latest edition, which provides industry-standard statistics, based on constantly updated actual traffic counts on how much traffic a particular land use generates. Fredette used the traffic statistics from Land Use Code (LUC) 210 (Single-Family Detached Housing) for the existing conditions and used LUC 220 (Apartment) for the proposed four unit apartment development. Based on a comparison of the number of trips expected to be generated during peak hours under both the existing and proposed conditions, Fredette identified a total increase of only one vehicle trip during the weekday morning peak hour and one vehicle trip during the weekday afternoon peak hour from the proposed project. Fredette testified that an increase of a single vehicle during peak hours was negligible and that a magnitude of one additional car would be unperceivable on a roadway such as Park Street. She opined that because of this negligible addition, there would be no impact on traffic safety in the subject area.

Fredette next performed a site distance analysis as part of the safety review in the traffic assessment in order to verify that vehicles traveling on both Park Street and Allen Court are able to see each other and react in sufficient time to avoid a collision. Based on the observations of traffic conditions in the subject area and vehicle speeds on a roadway such as Park Street, she determined that the minimum required site distance, as defined by ASHTO, is 200 feet. Using field measurements, Fredette determined that from Allen Court looking to the left down Park Street there was a site distance of approximately 320 feet and to the right down Park Street there was a site distance of approximately 310 feet. Since both distances exceeded the minimum required by the ASHTO, Fredette concluded that vehicles are able to safely enter and exit Allen Court onto Park Street.

Fredette opined that vehicular circulation on Allen Court will be conducted in a safe and efficient manner due to the low volume of cars and the low speeds on Allen Court, a residential driveway. She concluded that vehicles would be able to circulate Allen Court and exit onto Park Street in a safe and efficient manner. Fredette assessed the parking situation at Allen Court based on the location of the existing cars at the time of the two peak hour observations and determined that the vehicles from the driveway on the Emery Property should be able to circulate efficiently on and off of Allen Court. Since there is minimal vehicular activity on Allen Court, Fredette opined that passenger vehicles were not expected to experience significant conflicts while entering or exiting the Emery Property. I find these conclusion credible, well-founded, and persuasive.

No counter traffic impact studies or analysis were presented by Murrow at trial. To support her contention that she has offered sufficient credible evidence of harm, Murrow provides testimony from herself and other abutters. Emery contends that Murrow has not made a credible showing of actual harm from traffic and that any evidence of injury to her property offered is speculative. I agree.

Though Murrow has no qualifications as a traffic expert, she testified that Emery's special permit will likely cause her to suffer injuries from increased congestion on Park Street. Murrow testified that Park Street is already heavily congested in front of the Murrow Property and Allen Court, making it difficult for her to enter and exit her parking lot. She offered photographic evidence and testimony from herself and three other property owners, Dangi, Christenson, and Guo, concerning the heavily congested traffic on Park Street and the difficulties it causes them. Murrow also offered photographic and testimonial evidence that large trucks regularly use the loading dock across from Allen Court, which further exacerbates the congestion of traffic. In addition, she offered evidence that trucks and other vehicles regularly park on her side of Park Street blocking her parking lot. The queued line of traffic sometimes causes drivers to drive on the wrong side of Park Street in an effort to avoid the traffic, which makes driving on Park Street even more hazardous.

Dangi testified that the traffic on Park Street has been bad for many years and referred to it as "going to war" every time he attempted to merge onto Park Street from Allen Court during rush hour. He recognized that the traffic on Park Street was the result of several factors such as additional vehicles from the new buildings in the area and trucks utilizing the loading dock across the street from Allen Court. Dangi stated that he parks his car directly in front of his house on the far right side of the dead end of Allen Court. He attested that the previous residents of the Emery Property would sometimes park their vehicles in front of their house instead of the driveway, and he has seen cars parked on both sides of Allen Court in the past. Vehicles belonging to residents of the Emery Property and 27 Allen Court would sometimes impede his ability to exit Allen Court onto Park Street, and Dangi has had to ask those owners to move their vehicles so that he can leave.

Christenson testified that she and her twin sister only reside at 9 Allen Court for a few months out of the year, primarily during the spring and fall, and they usually have someone housesit for them so that the dwelling is always occupied. She stated that she does not own a vehicle, but the house sitter usually does and parks it in approximately the same area as Dangi, directly in front of the house on the far right side of the dead end of Allen Court. Christenson professed that she decided to sell her vehicle because the parking situation on Allen Court became too onerous, particularly when the prior occupants of the Emery Property would park in front of their house on Allen Court instead of using their driveway. Christenson stated that she now takes public transportation and often witnesses the traffic backing up on Park Street from Somerville Avenue. Christenson attested that there have been many changes to the neighborhood that have increased the congestion, including the condominium development in which Murrow resides. Her primary complaint regarding the development of the Emery Property was with parking and the location of the proposed driveway. Emery relocated his driveway based on a request that Christenson made with the City.

Guo, who owns the printing business next to Allen Court, testified that she has observed the traffic on Park Street when arriving and leaving work during rush hours. She has worked at that location for over twenty years and recalled that the traffic on Park Street has gotten worse over the years. Guo stated that she and her clients park on the front left-side area of Allen Court nearest to her property line. She attested to having problems with the occupants of 27 Park Street parking in that location.

There is no dispute that there is heavy traffic in this area of Park Street leading up to Somerville Avenue, and in the opposite direction towards the MBTA train tracks and Beacon Street, during weekday peak rush hours. It is not, however, as if the traffic in this area is so congested that one additional trip during the morning and afternoon rush hours from the development will push the amount of traffic over the limit, like a final drop of water being added to an already filled bucket that causes it to overflow. Rather, because the specific number of cars traveling through this intersection varies from day to day the traffic functions more as a stream that ebbs and flows, with one additional trip, like one additional drop of water to the stream, having no noticeable impact.

Murrow has provided no factual basis for her concerns about how the construction of a four unit apartment building on the Emery Property would increase traffic or cause additional traffic related safety problems, impeding her access to her parking lot. She offered no qualified, non-speculative testimony as to reasons for such concern. Further, many of Murrow's fears do not even relate to the development of the Emery Property, but involve claims of congestion from the loading dock across from Allen Court, trucks and vehicles parking along Park Street that block her parking access, and drivers attempting to avoid the traffic and traveling in the opposite direction on Park Street. The concerns regarding parking on Allen Court and the ability of the residents of the Emery Property to enter and exit their driveway are concerns of Dangi, Christenson, and Guo, who are not plaintiffs in this action and cannot be used as a basis for Murrow's standing on this ground.

Fredette presented credible testimony supported by her traffic assessment report that only one additional trip during the morning and afternoon rush hours will be generated by the proposed dwelling. The increase of a single vehicle during peak hours is negligible and will have no impact on traffic safety. The proposed development is located near an intersection with no accidents reported by Mass DOT in recent years and the site distances upon exiting Allen Court onto Park Street were adequate to aid in preventing future accidents. I find that Murrow's concerns about traffic impacts are too speculative and remote to grant them standing on such grounds. Caso v. Zoning Bd. of Appeals of Natick, 7 LCR 293 , 296 (1999) ("[F]or an increase in traffic to constitute a source of aggrievement a plaintiff in a zoning appeal must show that the increase will adversely affect a protected property interest."); Cohen v. Plymouth Zoning Bd. of Appeals, 25 Mass. App. Ct. 619 , 623 (1993) (requiring more than allegation of increased traffic to show specific injury).

2. Fire Vehicle Access

Murrow also claimed as an aggrievement that Emery's special permit will likely cause her to suffer injuries based on a lack of fire vehicle access to the Emery Property, which could increase the risk of the fire spreading to her property. Emery presented the testimony of Hallinan, Deputy Chief of the City of Somerville Fire Department, to discredit Murrow's claims regarding sufficient emergency fire access at the Emery Property. Hallinan reviewed Emery's plans and his special permit application in response to a request from the City planning department. Hallinan visited the Emery Property as part of his review and concluded that Emery's proposed development was compliant with the fire code, but for practical reasons requested that the dwelling be moved five feet away from the retaining wall on the right side of the dwelling. He stated that the fire department prefers to have at least five feet of access on all sides of a building, although the fire code only requires one side to be accessible. Emery complied with this request. Hallinan testified that he didn't find anything else concerning from a fire safety standpoint in Emery's special permit application. He stated that Emery's proposed development complies with the fire code. It will have the proper fire alarm and sprinkler systems in place. The dimensions and location of the proposed dwelling on the Emery Property provide sufficient access for the fire department to perform its functions on any side of the building and that all fire trucks carry aerial apparatuses that were sufficient to access the roof in the event of a fire.

Hallinan was familiar with the location of Allen Court and testified that the closest fire station was at the corner of Lowell Street and Somerville Avenue, about .4 miles from the Emery Property. He stated that in the event of a fire, the response time to the Emery Property would be three to four minutes, even at rush hours. Six fire companies and the Chief's vehicle would typically respond to the area, for a total of seven vehicles. He attested that Allen Court in its entirety is considered a 20 foot wide fire lane. Hallinan noted a sign posted by the City reading "Tow Zone No Parking Any Time," marking the fire lane. He opined that because the average fire truck is 12 feet wide, the width of Allen Court is sufficient for the average fire truck to fit down to access the Emery Property, even if a car is parked on one side of Allen Court, but not with cars illegally parked on both sides. If vehicles on Allen Court were impeding the fire department's access to the Emery Property, Hallinan testified that the fire department would stop on Park Street and connect their hoses to hydrants nearby and drag them to the Emery Property along with ladders. The fire department recommends that fire hydrants be located within 200 feet of the subject property for use in case of an emergency. One fire hydrant is located directly across from Allen Court on the opposite side of Park Street, approximately 80 feet from the Emery Property, and a second fire hydrant is located at the corner of Somerville Avenue and Park Street, approximately 150 feet from the Emery Property. These two hydrants would both be sufficient for use by the fire department in the event of an emergency. Any vehicles blocking access on Allen Court could be towed from the fire lane.

Murrow has not provided sufficient testimonial evidence to counter the expert testimony of Hallinan. Instead, she offered only vague testimony from herself, Dangi, and Christenson to the effect that the Emery Property would not be accessible by fire trucks in the event of an emergency. She provided photographic evidence that vehicles park on both side of Allen Court, which Hallinan testified would prevent a fire truck from gaining access to the Emery Property. However, the fact that occupants of 27 Park Street may illegally park on Allen Court, within the fire lane, where they have no designated spot, does not mean that there is insufficient access. Moreover, Hallinan stated that in the event that vehicles were parked on both sides of Allen Court impeding access, the responding fire trucks could stop on Park Street and would be able to carry ladders and equipment and utilize nearby fire hydrants to sufficiently fight a fire. Such vehicles parked in the fire lane would also be towed. Though Murrow, Dangi, and Christenson have never seen a fire truck on Allen Court, it does not follow that firefighting vehicles cannot gain access to the Emery Property, especially in light of Hallinan's testimony that he did not recall a fire on Allen Court within the last 30 years. Dangi's testimony regarding ambulance access is also unrelated to Murrow's fire access concern and would not have an impact on Murrow. To the extent that Murrow is concerned that combustible chemicals stored at Guo's printing business will increase the risk of fire spreading, Guo's testimony made clear that these chemicals are stored in a safe manner that was approved by the Fire Department. Furthermore, this concern is an existing condition, unrelated to the development of the Emery Property, and no evidence was provided to show that the proposed dwelling somehow increases the risk of fire spreading to the Murrow Property in the event of such an explosion.

I disregard Murrow's opinion as tentative and insufficient to support her contention that the development will impact fire safety. There is no evidence that the proposed dwelling, due to its size or location, would pose a greater fire risk than any other present structure. Emery has complied with the only issue Hallinan had of a potential fire access problem to the right side of the proposed dwelling. Hallinan's testimony more than adequately addressed any concerns about inadequate fire vehicle access to the Emery Property. Based on his years of experience in firefighting, his position as Deputy Fire Chief, and his fire safety and access assessment at this particular proposed dwelling, I find Hallinan's conclusions to be substantiated and persuasive. Thus, Murrow's concerns regarding fire are too speculative and do not confer standing for this appeal.

In conclusion, Emery has properly rebutted Murrow's presumption of standing as a party in interest. Murrow has failed to prove that she is a person aggrieved for statutory standing. As a result, I need not determine the merits of the appeal, but for the purposes of completeness, I examine the merits below.

The Merits.

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the "court shall hear all the 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 . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision involves 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). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings").

After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In determining whether the decision is "based on legally untenable ground," the court first looks at whether it was decided on a standard, criterion or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives "some measure of deference" to the local board's interpretation of its own zoning by-laws. Once the court determines the content and meaning of statutes and by-laws, it looks at whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application. Britton, 59 Mass. App. Ct. at 73. Finally, the court finds the facts and determines whether "any rational board could" come to the same conclusion. Id. at 74. This step is "highly deferential," but deference is not abdication. Id. "As a consequence, the board's discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law." Id. at 74-75. If the board's decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).

Emery, as the burden holder, see Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962), argues that the ZBA utilized the applicable ordinances and statutes that would permit any rational zoning board to grant the special permit based on the facts of the proposed development. He asserts that the conditions imposed by the ZBA constitute findings that the special permit can be exercised in harmony with the Ordinance. Based on the evidence in the record, Emery contends that deference is owed to the ZBA's rational conclusions and interpretation of its own Ordinance. Murrow argues that the ZBA erred in granting the special permit because the proposed use violates the general purposes of the Ordinance, in that it overcrowds the land, increases congestion in the streets, does not secure safety from fire and other dangers, and diminishes the value of the surrounding landowners by overburdening the use of Allen Court. As set forth more fully below, I find that the ZBA's Decision granting the special permit had a substantial basis in fact and was not arbitrary and capricious, and is hereby affirmed.

General Laws c. 40A, § 9, authorizes municipalities to provide by local legislation that certain uses, though not permitted as of right, may nevertheless take place within a specified district upon issuance of a special permit. The special permit granting authority exercises its discretion in issuing special permits. "Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use." G. L. c. 40A, § 9. The burden of proof is on the party seeking the special permit to show that the granting of a special permit is justified. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977).

Under the Ordinance, a special permit for four units in a multi-family dwelling may be issued if the ZBA determines five prerequisites are met. First, the application must comply with the informational requirements of § 5.1.2. Second, the applicant must comply with such criteria or standards as may be set forth in the Ordinance which refer to the granting of the requested special permit. Third, the proposed project must be consistent with the general purposes of the Ordinance under § 1.2 and the specific objectives applicable to the requested special permit which may be set forth elsewhere in the Ordinance. Fourth, the project must be designed in a manner that is compatible with the characteristics of the built and unbuilt surrounding area, including land uses. Fifth, where applicable to the particular application, the circulation patterns for motor vehicles and pedestrians which result from the use or structure will not result in conditions that create traffic congestion or the potential for traffic accidents on the site or in the surrounding area.

Exh. 2, § 5.1.4.

1. The ZBA's Determination of Compliance with § 5.1.2

Section 5.1.2 of the Ordinance states that the ZBA

shall, in its discretion, require [certain basic and additional information] for all applications for special permits . . . Only that information which is applicable to a proposed use or structure will be required of the applicant. The applicant is strongly encouraged to have a preliminary meeting with the Planning Board staff and, if necessary, the Design Review Committee before submitting the application to help the applicant identify the applicable information requirements as well as any design-related issues that may arise.

This information includes basic information such as the name and address of the applicant, a plot plan, plans that show present and proposed uses, dimensions of existing and proposed buildings, locations of any easements or rights of way, parking plans, a brief description of the proposed project, and any additional applicable information. Murrow claims that Emery failed to comply with this provision because he did not submit a comprehensive plot plan, but instead provided several different plans which required examination of each to gather all the information. She also argues that the plans Emery supplied were inaccurate and incomplete, and failed to provide sufficient information as to the design of the proposed dwelling. I disagree with this contention.

On his special permit application, Emery provided contact information for himself and his architect, a brief description of the proposed project, total floor area and ground coverage ratio for the proposed building, elevations of the proposed building, a plot plan certified by a land surveyor, plans showing the present and proposed uses of the land and existing buildings, a landscape plan, a plan of location and dimensions of Allen Court, a plan of the location, number and dimensions of parking spaces and driveway, and a plan of the dimensions of existing and proposed buildings or other structures including height, setback, and square footage of each floor. In addition, Emery met with the City planning board staff multiple times prior to filing his application to ensure compliance with the Ordinance. After review the plans and information submitted, I find that the ZBA reasonably determined that the information provided by Emery conformed to the requirements of § 5.1.2 of the Ordinance and allowed for a comprehensive analysis of the project with respect to the required special permit.

2. The ZBA's Determination of Compliance with Standards

The ZBA next considered whether Emery complied with the standards for granting the special permit. Under § 7.11 of the Ordinance, a four-unit multi-family dwelling in the BA zoning district requires a special permit. I find that Emery's proposed dwelling meets the dimensional and parking requirements of the Ordinance and the Emery Property is conforming for a four unit development.

The lot size of the Emery Property is 4,942 square feet and there is no minimum lot size required in the BA zoning district. The proposed dwelling is 1,932 square feet, making the ground coverage for the proposed dwelling 39% of the total lot area, and the maximum allowed in the district is 80%. The FAR for the proposed dwelling is 1.6 and the maximum allowed for the district is 2.0. The proposed lot area per dwelling unit is 1,235 square feet and the minimum required is 875 square feet per dwelling unit for a four until property in the BA district. The height of the new building will be four stories and 36 feet high and the maximum allowed is four stories and 50 feet high. The Emery Property has 70.82 feet of frontage on Allen Court and there is no minimum frontage requirement in the BA district. The proposed development has a front yard setback of five feet, a left side yard setback of 20 feet, and a right side yard setback of 5 feet, although there is no minimum setback requirement for these sides in the BA district. Only a minimum rear yard setback of 16 feet is required, which the dwelling satisfies with a 20 foot rear yard setback. The proposed landscaped area percentage will be 31% and the minimum required landscaped area of a lot in the BA district is 10% in the district. The proposed development will have six parking spaces, the minimum number required for a structure with four 2-bedroom dwelling units. All six parking spaces will have dimensions of at least nine feet by eighteen feet, satisfying the minimum width and depth required for a parking space.

Murrow asserts that Emery's submitted proposal does not satisfy the minimum parking requirements under § 7.11 because none of the plans show the dimensions of the interior of the garage, the dimensions for the exterior of the garage are inaccurate, and no dimensions are given for storing garbage bins. The Ordinance does not require an applicant to submit plans to the ZBA showing the interior dimensions of buildings, only the exterior dimensions. The interior dimensions can be calculated by taking the exterior dimension and subtracting for the width of the exterior wall. The garage exterior walls are to be built with 2 x 4 studs, which actually have the dimensions of 1.5 x 3.5 inches. As shown on plans of the basement and first floor areas submitted by Emery, the distance between the interior side of the garage wall which adjoins the dwelling to the exterior side facing the driveway is 19.5 feet and the exterior distance of the garage along the driveway is 42 feet (although incorrectly labeled as 46 feet on the plan). Since four vehicles will be parked in the garage, each requiring a spot of 9 by 18 feet, the minimum required square footage of the garage is 648 square feet. From the exterior dimensions of the garage, the plans show it is proposed to have 819 square feet. Subtracting a few inches to account for the exterior wall would still provide the garage with adequate space to park four vehicles. Though no dimensions are given for the width of the four garbage and four recycling bins, this is also not required by the ZBA and Emery testified that the location of the bins could be moved around in the garage from where it is shown on the plan. Regardless, there is adequate space in the garage, even with four vehicles parked inside, for the storage of the garbage bins.

Murrow also argues that the driveway does not have adequate dimensions because Emery plans to build a fence which will have to be located within the area shown for the driveway, and because the garage walls qualify as a column, which requires an additional foot of space. According to § 9.11 of the Ordinance, where the turning radius from one parking area to an aisle is 90 degrees, at least 20 feet of maneuvering space abutting the parking space is required. Emery's plans show that the turning radius from the driveway to the garage is at a 90 degree angle and the dimensions of the driveway are 20 by 68.20 feet. This is sufficient to satisfy the requirements of the Ordinance.

Emery testified that because the garage is supporting three stories above, some mechanism of support would need to be used such as a column, or an I-beam or microllam beams which would not require space on the ground, but that decision would come at a later a time when construction drawings are done for a building permit and was not something that the ZBA required in his special permit application. In addition, the proposed six-foot fence shown on the landscaping plan that Murrow argues will reduce the width of the maneuvering aisle is to be located on the Emery Property line, bordering the driveway, not within its bounds. Therefore, Emery has shown a sufficient maneuvering area in order to get vehicles in and out of the garage onto the driveway in accordance with the Ordinance. I find that the ZBA appropriately determined that Emery complied with the standards for granting the special permit.

3. The ZBA's Determination of Compliance with § 1.2 and the BA Zoning District

The ZBA also took § 1.2 of the Ordinance into consideration in issuing the special permit.

Section 1.2 of the Ordinance states that the purpose of the Ordinance is:

Exh. 1. Murrow argues that Emery had the burden to prove by credible evidence that his proposed use was in harmony with the overall purpose of the Ordinance. In particular, she argues that it did not comply with the Ordinance in regards to preventing the overcrowding of land and avoiding undue concentration of population, lessening congestion in the streets, securing safety from fire, and conserving the value of land and buildings. As discussed below, I find these claims to be without merit.

Murrow first argues that Emery offered no evidence concerning the existing uses of land and concentration of population in the vicinity of the Emery Property. She states generally that because the surrounding land is already overcrowded and there is already an undue concentration of population in the area, any additional development and concentration of population, no matter how small, is too much. This contention is flawed. Setback regulations are intended to promote the zoning purpose of preventing the overcrowding of land and avoiding undue concentration of population. The development of the Emery Property satisfies all setback requirements. The proposed dwelling also covers only 39% of the total area out of an allowed 80% and has a FAR of 1.39 out of an allowed 2.0. Because the proposed dwelling complies with all setback requirement and is under the maximum allowable ground cover and FAR, he satisfies these purposes under §1.2 of the Ordinance.

Murrow next asserts that Emery failed to sustain his burden of proving that his proposed use would not add to the congestion of traffic and number of vehicles on Allen Court and Park Street. Fredette testified about traffic impacts. She concluded that the proposed dwelling will not negatively impact traffic safety. Upon completion, the proposed dwelling is expected to generate about one vehicle trip over the course of a typical weekday during the morning and afternoon peak rush hours. There have been no accidents reported by Mass DOT at the intersection of Allen Court and Park Street or locations within 100 to 200 feet surrounding the intersection between 2011 and 2013. The site distances in both directions from Allen Court exiting onto Park Street satisfy the minimum required site distance of 200 feet, as defined by ASHTO. These site distances are adequate to ensure that vehicles are able to safely enter and exit Allen Court onto Park Street. The proposed dwelling does not cause undue congestion in the streets as Murrow claims.

With respect to fire safety, Murrow submits that Emery did not provide credible evidence that fire trucks could readily and effectively access and respond to an emergency at the Emery Property. This contention is unsupported by the evidence presented at trial. Deputy Chief Hallinan testified about fire safety and access to the Emery Property. The closest fire station in Somerville is at the corner of Lowell Street and Somerville Avenue, about .4 miles from the Emery Property. In the event of a fire, the response time to the Emery Property would be three to four minutes, even at rush hours. Emery's proposed development complies with the fire code. It will have the proper fire alarm and sprinkler systems in place. The dimensions and location of the proposed dwelling on the Emery Property provide sufficient access for the fire department to perform its functions on any side of the building. All fire trucks carry equipment allowing access up to a height of 40 feet, sufficient to satisfy the height of the proposed dwelling at 36 feet. There is a fire lane over some portion, if not the entirety, of Allen Court that is marked with a sign reading "Tow Zone No Parking Any Time." According to the City, no one is supposed to park in the fire lane. The average fire truck is 12 feet wide. The width of Allen Court is sufficient for the average fire truck to fit down to access the Emery Property, even if a car is parked on one side of Allen Court, but not with cars illegally parked on both sides. If vehicles on Allen Court were impeding the fire department's access to the Emery Property, Hallinan testified that the fire department would stop on Park Street and connect their hoses to hydrants nearby and drag them to the Emery Property along with ladders. There are two fire hydrants within 200 feet of the Emery Property that would provide sufficient access points for the fire trucks.

Finally, Murrow alleges that the development of the Emery Property does not conserve the value of land and buildings. She bases this contention on the fact that Allen Court is a private way and that Emery is changing the historic use of the building as a single family home. Murrow states that any increase in occupancy from the existing single family home, even that allowed by right, would cause the use of Allen Court to become overburdened, which in turn impairs the value of the land of the adjoining land owners such as Dangi, Christenson, and Guo. There is no support for this allegation. At trial, Story testified that the proposed development of the Emery Property will have no effect on the real estate market in Somerville. Story testified that the Somerville real estate market is robust with property values increasing an average of 2-6% from 2014 to 2015. Murrow's condominium building at 23 Park Street has outperformed the average increase in real estate value in Somerville from 2014 to 2015. A unit within 23 Park Street sold in 2016 at an appreciation rate of 17.3%.

Moreover, the special permit is consistent with the purpose of the BA zoning district which includes residential housing, and continues the historic residential use of the Emery Property. This is supported by the November 20, 2012, determination by the Somerville Historic Preservation Commission that the single family house located on the Emery Property should not be preserved as the Commission did not find that demolition of the structure would be detrimental to the heritage of the City, and, therefore, was not in the best interest of the public to preserve or rehabilitate. The Commission also noted the Emery Property's historic residential use since the 1800s. The proposed project also complies with specific guidelines for the BA zoning district by locating off-street parking to the rear of the lot and installing landscaping along the primary street edge. The ZBA's decision that Emery's proposed dwelling complies with the general purposes of the Ordinance as set forth in § 1.2 and is consistent with the purposes of the BA district was well- founded and supported by the evidence.

4. The ZBA's Determination of Compliance with Site and Area Compatibility

In addition to being consistent with the general purposes under § 1.2 of the Ordinance, the proposed project must be designed in a manner that is compatible with the characteristics of the built and unbuilt surrounding area and land uses. Here, the Emery Property is located in the BA zoning district. The purpose of the BA zoning district is to attract a wide range of uses, including retail business and services, housing, government, professional and medical offices, and places of amusement. The neighborhood is an eclectic mix of residential and commercial properties of varying styles. There are several residential buildings nearby. The proposed dwelling is compatible with these uses. The design of the proposed dwelling incorporates the suggestions made by the DRC on reducing its perceived massing while keeping with its traditional building style. Allen Court is a narrow street and the project was redesigned several times to address parking, landscaping, and other aesthetic concerns. The ZBA appropriately determined that the proposed dwelling was designed in a manner that is compatible with the characteristics of the surrounding area and natural features of the site.

5. The ZBA's Determination of Compliance with Vehicular Circulation

Finally, Section 5.1.4(f) of the Ordinance requires that the circulation patterns for motor vehicles and pedestrians which would result from the use or structure will not result in conditions that create traffic congestion or potential for accidents. As discussed in great detail previously, Fredette testified that Emery's proposed dwelling will not have any impact on traffic safety or congestion. There will be only one additional trip generated from the development which will have a negligible impact on traffic congestion. There are sufficient site distances from Allen Court onto Park Street to ensure that the risk of accidents is minimal. Emery relocated his driveway from the right side of the proposed building to the left side in order to alleviate potential issues with accessing the Emery Property. Emery has provided sufficient area for off-street parking so that occupants of the proposed dwelling will not impede the other neighbors' access to their own parking spots. I do not credit testimony that cars will not be able to enter and exit the Emery Property. Based on the view and Fredette's and Emery's testimony, cars will be able to access the property even when cars are parked in front of Dangi's and Christenson's properties. The ZBA properly concluded that the proposed project had sufficient circulation patterns to allow for the movement of the vehicles without causing congestion.

Accordingly, I find that the ZBA's Decision granting the special permit was not arbitrary and capricious, and was consistent with, not contrary to, the Ordinance.

CONCLUSION

In conclusion, Murrow does not have standing to challenge the ZBA's Decision in issuing the special permit to Emery. Additionally, Emery's proposed development meets all the requirements for a special permit under the Ordinance and the Decision of the ZBA to grant the special permit was reasonable, well-founded on the facts as I find them to be after trial, and does not suffer from any legal infirmity. Judgment will enter affirming the challenged Decision of the ZBA and dismissing Murrow's complaint.

Judgment accordingly.

CLAUDIA MURROW v. KEVIN EMERY, CITY OF SOMERVILLES ZONING BOARD OF APPEALS, HERBERT FOSTER, JR., ORSOLA SUSAN FONTANO, RICHARD ROSSETTI, DANIELLE EVANS, and ELAINE SEVERINO.

MISC 14-481466

June 12, 2017

Middlesex, ss.

FOSTER, J.

DECISION