CAPE COD BAGEL CO., INC. v. FALMOUTH ZONING BOARD OF APPEALS, KIMBERLY BIELAN, KENNETH FOREMAN, EDWARD VAN KEUREN, PAUL MURPHY, TERENCE HURRIE, MARK COOK, and GERALD POTAMIS, in their official capacity as members of the FALMOUTH ZONING BOARD OF APPEALS, and M.P.G. CORPORATION.

Plaintiff Cape Cod Bagel Co., Inc. ("Cape Cod Bagel") appeals from a decision of the Falmouth Zoning Board of Appeals (the "Board") authorizing the razing and reconstruction of a lawfully preexisting, nonconforming commercial building on a lot abutting its property by issuance of a special permit. Cape Cod Bagel challenges the decision on the grounds that the proposed redesign of the parking area on the lot and other aspects of the proposed redevelopment will substantially increase traffic entering and leaving the lot on an already heavily traveled road. It also challenges the decision on the basis that the proposed building will have nonconformities and the town of Falmouth zoning bylaw (the "Bylaw") does not allow the razing and reconstruction of a building that will remain nonconforming. The non-municipal defendant M.P.G. Corporation ("MPG") has challenged Cape Cod Bagel's standing to challenge the special permit, asserting that Cape Cod Bagel has not demonstrated that it will suffer any legally cognizable injury or harm specific to its property that is distinct from that which the community as a whole would suffer.

On April 11, 2018, I took a view of the MPG and Cape Cod Bagel properties, and a third site located at 302 Palmer Avenue. [Note 1] A trial was held before me on April 12 and 18, 2018. Because I find and rule that Cape Cod Bagel has not demonstrated that it is aggrieved by the decision of the Board, its appeal will be dismissed.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. Plaintiff Cape Cod Bagel owns property located at 417-419 Palmer Avenue in Falmouth (the "Cape Cod Bagel Property"). The Cape Cod Bagel Property is a corner lot and has frontage on Palmer Avenue, also known as Route 28, and Jones Road.

2. Defendant MPG is an operator of retail convenience stores and currently owns and operates sixteen convenience stores located across eastern Massachusetts and southern New Hampshire. [Note 2] All sixteen MPG locations sell gasoline as well as convenience store items.

3. MPG leases the subject property, located at 435 Palmer Avenue (the "MPG Property"), from Hatem Enterprises, 649 Main Street, LLC ("Hatem"), the owner of the MPG Property. [Note 3] The MPG Property abuts the northern property line of the Cape Cod Bagel Property, and both properties are located north of the signalized Palmer Avenue-Jones Road intersection.

4. Traveling north on Palmer Avenue leads one to the Bourne Bridge, and traveling south on Palmer Avenue leads one to Woods Hole and the ferries that service Martha's Vineyard. [Note 4]

The MPG Property

5. The MPG Property contains 19,733 square feet of land in the Business 2 ("B2") zoning district. It is located on the easterly side of Palmer Avenue, and is bounded to the north by Oak Grove Cemetery, to the south by the Cape Cod Bagel Property for 175.04 feet, and to the east by the Cape Cod Bagel Property for 104.47 feet. [Note 5] Opposite the MPG Property across Palmer Avenue is a parking lot for a thrift store. The MPG Property has 115.07 feet of frontage on Palmer Avenue with two curb cuts.

6. The MPG Property does not meet the current minimum lot area requirement of 40,000 square feet in the B2 zoning district, nor does it have the current minimum 200 feet of frontage required in the B2 zoning district. [Note 6]

7. The MPG Property is improved with a 2,529 square foot building, which houses a convenience store and an auto sales and repair business. [Note 7] The auto sales and repair business is a separate business and subleases space in the building from MPG. [Note 8] The building has a nonconforming side yard setback of 2.9 feet from the northerly property line; the required side yard setback in the B2 zoning district is 20 feet. [Note 9]

8. Also on the MPG Property is a fuel canopy located near its frontage on Palmer Avenue. The fuel canopy contains two fuel dispensing islands, each with two fuel dispensers, for a total of four fuel dispensers accommodating up to eight vehicles. [Note 10] The fuel canopy is nonconforming, with a setback of 9.1 feet from Palmer Avenue; the front yard setback requirement in the B2 zoning district is 25 feet. [Note 11]

9. The total lot coverage on the MPG Property is nonconforming at 88.1% of the area of the lot; the maximum allowable lot coverage in the B2 zoning district is 70%. [Note 12]

10. Once per week a fuel tanker measuring over 50 feet long delivers gasoline to underground fuel tanks located near the southern lot line of the MPG Property. [Note 13] Under existing conditions, the fuel tank truck must enter the site at the southern curb cut and park over the fuel tanks; because the existing building is located 12 feet from a fuel dispenser, the fuel tanker must then back out of the southern curb cut onto Palmer Avenue and execute a 3-point turn to travel north on Palmer Avenue. [Note 14] Peter Garrett, MPG's president, has visited the MPG Property over 100 times and has witnessed fuel tank trucks backing out of the MPG Property onto Palmer Avenue, and I credit his testimony that the fuel tank truck stops and blocks traffic in both the northbound and southbound lanes of Palmer Avenue. [Note 15]

11. In addition to the gasoline delivery, 8 to 10 vendors each deliver goods to the convenience store on a weekly basis. [Note 16] Vendors delivering goods are supposed to park next to the southern side of the convenience store, but have been observed parking either on the Cape Cod Bagel Property in space intended for Cape Cod Bagel's delivery trucks, or on Palmer Avenue in the northbound travel lane in front of the MPG Property. [Note 17] If a delivery truck parks directly in front of the convenience store, it blocks vehicles from exiting the fuel canopy. Delivery trucks parking on the south side of the store cannot pull through and exit from the northern curb cut, because the 12 feet of space from the fuel dispenser to the convenience store can only accommodate one vehicle passing through; a vehicle parked at the fuel dispenser blocks all other traffic from traveling to the northern curb cut. [Note 18]

12. There are currently 23 parking spaces on the MPG Property, including the 8 spaces under the fuel canopy. [Note 19] The majority of the parking spaces currently on the site are along the southern boundary line with the Cape Cod Bagel Property and are angled in a way that directs traffic towards the rear of MPG Property, despite the fact that there is no exit at the rear. [Note 20] The area where delivery trucks are supposed to park is located between the building and the angled parking spaces, so a parked delivery truck blocks the flow of travel to and from the angled parking spaces and likewise blocks any traffic leaving from the auto repair shop located at the rear. [Note 21]

13. The auto sales and repair business utilizes a number of parking spaces on the MPG Property, sometimes leaving vehicles parked for months at a time, reducing the actual number of available spaces for patrons of the convenience store. [Note 22]

The Cape Cod Bagel Property

14. Cape Cod Bagel is a "fast casual restaurant" selling soup, sandwiches, desserts, bagels, and coffee. [Note 23] The restaurant has indoor and outdoor seating with a total of 96 seats. Cape Cod Bagel is open year-round and its hours are 6:30 a.m. to 3:30 p.m.

15. Cape Cod Bagel is also a landlord to a number of other businesses located in its building on the Cape Cod Bagel Property, including a chiropractor, a kitchen remodeling display store, a mortgage lender, an architect, a masseuse and wellness center, an attorney, a financial advisor, and a real estate professional. [Note 24]

16. The majority of the parking spaces on the Cape Cod Bagel Property serve Cape Cod Bagel's business; after 3:30 p.m. there are few vehicles in the parking lot. [Note 25]

17. The Cape Cod Bagel Property has a curb cut and driveway at its Palmer Avenue frontage, south of the boundary of the MPG Property. The Cape Cod Bagel Property has a second curb cut and driveway at its frontage on Jones Road, east of the Palmer Avenue-Jones Road intersection.

18. A sign posted on the Cape Cod Bagel Property at its Palmer Avenue curb cut prohibits drivers from making a left turn onto the southbound side of Palmer Avenue when exiting; thus, all traffic leaving the Cape Cod Bagel Property at that curb cut is supposed to only turn right into the northbound lane. [Note 26] This condition resulted from a decision of the Board. [Note 27] Customers leaving Cape Cod Bagel who wish to travel south must use the Jones Road exit, proceed to the signalized intersection with Palmer Avenue, then turn left to continue south. [Note 28]

19. Pursuant to a revocable license agreement between Cape Cod Bagel and a previous owner of the MPG Property, a paved driveway connects the MPG Property to the Cape Cod Bagel Property (the "connection"), allowing vehicles to navigate between the two properties. [Note 29] Subsequent to the Board's decision in the present case, Cape Cod Bagel revoked the license and prohibited the use of the connection. Marilyn Fox, Cape Cod Bagel's president and secretary, controls access to the connection and occasionally places a plastic chain across the connection to prohibit vehicular access between the parking lots for the two properties. [Note 30]

Relevant Sections of the Bylaw

20. Section 240-3(C) of the Bylaw provides as follows:

Preexisting, nonconforming structures or uses may be extended, altered or changed only by special permit from the Board of Appeals. Any such change, extension or alteration shall not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure.

21. Section 240-216 of the Bylaw provides in relevant part:

In addition to any specific requirements elsewhere in this chapter, or where no specific restrictions are made applicable to a use allowed by special permit, the special permit granting authority shall grant a special permit only upon its written determination that the proposed use will not have adverse effects which overbalance its beneficial effects on either the neighborhood or the Town, in view of the particular characteristics of the site....

The Board's Approval of a Special Permit

22. On November 23, 2015, with Hatem's authorization, MPG applied for a special permit to "raze and reconstruct the existing retail and motor vehicle service and repair building." [Note 31] The application further provided that MPG "intends to eliminate the current allowed uses of automobile sales (6 vehicles) and motor vehicle repairs." [Note 32]

23. The proposed building would measure 3,500 square feet. [Note 33] The northerly side yard setback for the proposed building would be 10 feet, a less nonconforming setback than the current setback of 2.9 feet. [Note 34] The existing fuel canopy would be refurbished and remain in its existing nonconforming location. [Note 35] The nonconforming lot coverage would remain nonconforming, but would be reduced from 88.1% to 79.7%. [Note 36]

24. The proposed building would be located further to the rear of the MPG Property than the location of the present building, to provide more space for on-site traffic circulation around the fuel canopy and parking directly in front of convenience store. [Note 37] The site plan provides for 30 feet of space between the fuel canopy and the building, which will allow a fuel tanker to enter at the southerly curb cut, deliver gasoline, then proceed in a loop between the canopy and convenience store and exit out the northerly curb cut without having to back up. [Note 38] The added space also provides adequate distance for vehicles to back out of parking spaces in front of the convenience store without backing into the fuel dispensers. [Note 39]

25. Although its plans in this regard have not been finalized, MPG plans to have either a Subway sandwich shop or Dunkin' Donuts as a tenant occupying approximately 500 square feet in the proposed building. [Note 40] The food service use will not have seats, but will consist of a walk-up counter in the convenience store. [Note 41]

26. The finalized plan provides 15 parking spaces—7 spaces directly in front of the convenience store and 8 spaces at the fuel dispensers—complying with the Bylaw requirement of a minimum of 12 spaces. [Note 42] The parking spaces are to be located directly in front of the building to reduce pedestrian movement in front of the fuel canopy and to allow patrons to walk into the convenience store without walking across the circulation of traffic. [Note 43]

27. The site plan provides a dedicated loading zone for delivery trucks adjacent to the southern side of the convenience store. [Note 44]

28. MPG's proposed plans for the MPG Property do not rely on access to the Cape Cod Bagel Property through the paved connection. [Note 45]

29. On April 14, 2016, the Board voted to approve MPG's application, and issued its written decision, dated and filed with the town clerk on April 22, 2016. [Note 46]

30. On May 10, 2016, Cape Cod Bagel timely filed its complaint.

DISCUSSION

STANDING

The initial inquiry for the court in an appeal pursuant to G. L. c. 40A, § 17, is whether the plaintiff is a "person aggrieved," and thus has standing to pursue his or her claims. Standing is a "'jurisdictional' prerequisite to proceeding with the case in the sense that [a plaintiff's] status as an aggrieved person is an essential prerequisite to judicial review." Talmo v. Zoning Bd. Of Appeals of Framingham, 93 Mass. App. Ct. 626 (2018), slip op. at p. 2. Abutters who are entitled to notice of a zoning board's hearings "enjoy a rebuttable presumption" that they are aggrieved persons. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Although an abutter enjoys a presumption of aggrievement, a plaintiff with aggrieved person status "always bears the burden of proving aggrievement necessary to confer standing." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012), citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34-35 (2006). A defendant seeking to rebut a plaintiff's presumption of standing must offer evidence "warranting a finding contrary to the presumed fact." Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). "If a defendant offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 701. One way a defendant can rebut the presumption is "by showing that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." Id. at 702, citing Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011); Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 30-31. Alternatively, rather than providing its own evidence, the defendant may also rely on the plaintiff's lack of evidence, obtained through discovery, in order to rebut a claimed basis for standing. See Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 35 (and cases cited).

Following rebuttal of the presumption by a defendant, plaintiffs have "the burden of proving, by direct facts and not speculative evidence, that they would suffer a particularized injury" that is "special and different from the concerns of the rest of the community." Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 120; Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33, quoting Barvenick v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). "Aggrievement requires a showing of more than minimal or slightly appreciable harm. . . . The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy....Put slightly differently, the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes." Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 121-122. Nonetheless, "a plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. 'Rather, the plaintiff must put forth credible evidence to substantiate his allegations.'" Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005), quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 721. This "credible evidence" standard has both qualitative and quantitative components: "[q]uantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler v. Waltham, supra, 63 Mass. App. Ct. at 441 (internal citation omitted). The facts offered by the plaintiff must be more than merely speculative. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).

Presumption of Standing

The Cape Cod Bagel Property directly abuts the MPG Property and therefore Cape Cod Bagel is a "party in interest" as defined in G. L. c. 40A, § 11. Accordingly, Cape Cod Bagel is presumed to be a person aggrieved by the Board's decision with standing to challenge it.

Rebuttal of the Presumption

Because Cape Cod Bagel has the benefit of a presumption that it is a "person aggrieved," MPG may rebut the presumption by showing that Cape Cod Bagel's claimed sources of aggrievement stem from interests that are not protected by the Bylaw, or by producing credible evidence contradicting Cape Cod Bagel's claimed aggrievement, or by showing that Cape Cod Bagel lacks any evidence that it would suffer harm. In its complaint, Cape Cod Bagel claimed increased traffic as its particular source of aggrievement. Specifically, Cape Cod Bagel alleged that the proposed changes to the MPG Property "will substantially increase traffic entering and leaving the parcel, on a street which already has some of the worst traffic problems in Falmouth." [Note 47] Cape Cod Bagel additionally argues that parking on the MPG Property will not sufficiently support customers of and deliveries to the convenience store, leading to MPG's customers and delivery trucks parking on the Cape Cod Bagel Property. Cape Cod Bagel did not identify any other sources of aggrievement in its complaint or at trial.

Parking

To counter the assertion that the MPG proposal would negatively impact parking on the Cape Cod Bagel Property, MPG presented the testimony of Frank Monteiro, the civil engineer who designed the site plan for the proposed redevelopment of the MPG Property. Prior to designing the site plan, Monteiro evaluated existing conditions on the MPG Property, including site circulation and parking. He testified that under existing conditions, the convenience store is located only twelve feet from a fuel dispenser, prohibiting vehicles others than those using the fuel pumps from passing through that area. Specifically, a fuel tanker cannot pass through that area after delivering fuel and delivery vehicles cannot unload in the area north of the fuel canopy without blocking vehicles from using the dispensers. However, if a delivery vehicle parks on the south side of the convenience store, it blocks vehicles parked in the angle parking spaces located along the southern boundary with Cape Cod Bagel. To remedy this problem, Monteiro moved the proposed convenience store to the rear of the site to create more space for on-site traffic circulation that will not interfere with parking. After the redevelopment, a fuel tanker will be able to pull into the southerly curb cut, deliver gasoline, and then proceed out of the northerly curb cut, while still providing enough area for seven parking spaces directly in front of the convenience store. The site plan also provides a dedicated loading zone adjacent to the proposed convenience store that will not interfere with any on-site parking. This resolves the issue of delivery trucks parking on Palmer Avenue if there is no space on the site to park, and eliminates any incentive for parking on the Cape Cod Bagel lot.

Monteiro also testified that he reviewed the parking requirements of the Bylaw prior to designing the site plan, and that the fifteen proposed parking spaces exceed the requirement of twelve for a retail use measuring 3,500 square feet. [Note 48] He explained that the eight parking spaces at the fuel dispensers are permitted to be counted toward total parking on the site, because customers do not purchase gasoline and then move their vehicles to go into the convenience store to make a purchase. Additionally, because MPG is eliminating the auto sales and repair shop business, all of the on-site parking will serve the convenience store. To further ensure adequate parking on the MPG Property, the Board imposed requirements that MPG include a bike rack on the site and educate employees of the convenience store about public transportation options to minimize employees' use of parking spaces on the MPG Property.

I find that MPG succeeded in producing sufficient evidence to rebut Cape Cod Bagel's presumption of standing with regard to parking concerns. Specifically, I find that MPG presented credible evidence that the proposed changes to the site plan, along with the elimination of the auto sales and repair use, will increase the functionality and availability of the parking spaces available on the MPG Property, and will thereby likely discourage parking on the Cape Cod Bagel Property by customers or vendors of the convenience store on the MPG Property. Additionally, Cape Cod Bagel's closing of the paved connection between the parking lots for the two properties makes it impossible for customers of one business to cut through the parking lot of the other, and makes it even less likely that MPG customers would park on Cape Cod Bagel's property, given the longer walk that would be required and given the availability of additional maneuvering area on the MPG Property.

Traffic

MPG presented evidence on the redevelopment's impact on traffic conditions on Palmer Avenue and its intersection with Jones Road. Heather Monticup, a traffic engineer, utilized trip- generation rates published by the Institute of Transportation Engineers ("ITE") to prepare a March 1, 2016 trip generation letter for MPG comparing trips under the existing use of the site and the proposed use of the site. [Note 49] According to the ITE manual, it is estimated that between 56 and 62 percent of any additional trips to the MPG Property would come from traffic that is already traveling on Palmer Avenue, known as "pass-by trips." [Note 50] During the morning peak hours on a weekday, it is estimated that the proposed development would bring 22 new trips to the MPG Property, consisting of twelve vehicles entering the property and ten exiting the property. [Note 51] Accordingly, Monticup determined that the redevelopment of the MPG Property would have a negligible impact on existing traffic conditions on Palmer Avenue. [Note 52]

Monticup further considered what effect, if any, the predicted level of increase in traffic on Palmer Avenue would have on the Cape Cod Bagel Property. On December 13, 2017, Monticup conducted a traffic count at the two MPG Property curb cuts and the Cape Cod Bagel curb cut on Palmer Ave during the weekday morning peak period, 7 a.m. to 9 a.m., and the weekday evening peak period, 4 p.m. to 6 p.m. [Note 53] During the morning peak period, of the fifteen vehicles exiting the MPG Property, ten turned right onto Palmer Avenue to head north and five vehicles turned left onto Palmer Avenue to head south. During the evening peak period, forty vehicles exited the MPG Property; thirty turned right on Palmer Avenue to head north, and only ten turned left onto Palmer Avenue to head south. Comparing the existing conditions with the site-generated trips for the 2017 build condition (the condition that would exist if the redevelopment had been completed in 2017), Monticup concluded that with the increases in traffic to the south of the MPG Property, the level of service at the Cape Cod Bagel curb cut, that is, the functionality of that curb cut as an intersection, does not drop. The existing level of service during the morning peak hours is "B" and will remain "B" under the 2017 build condition; during the evening peak hours, the level of service is a "C" and will remain unchanged. [Note 54] Thus, the Cape Cod Bagel curb cuts are only projected to experience their current average delays during the weekday peak hours, and these delays are not projected to worsen as a result of the redevelopment of the MPG Property.

MPG also provided evidence that with the convenience store relocated to the rear of the site, there is additional space for vehicles to queue on-site without interrupting the flow of traffic on Palmer Avenue. [Note 55] Likewise, the provision of a dedicated loading zone along the southern side of the building will allow vehicles to circulate around the fuel canopy and queue at both curb cuts on the MPG Property, rather than being confined to exiting solely at the southerly curb cut when delivery trucks park in front of the building and block the area between the fuel canopy and the building. [Note 56] Lastly, MPG provided a "Truck Turn Plan" which demonstrates that after redevelopment of the site, a fuel tanker will be able to pull into the southerly curb cut, deliver fuel, then proceed between the fuel canopy and convenience store to exit at the northerly curb cut without backing up. [Note 57] This will eliminate the present condition of the fuel tanker blocking the travel lanes on Palmer Avenue while backing out of the MPG Property.

Accordingly, I conclude and so find that MPG produced sufficient credible evidence that there will be no injury to the Cape Cod Bagel Property by reason of increased traffic or parking resulting from the redevelopment of the MPG Property. As such, MPG has rebutted Cape Cod Bagel's presumption of standing.

Cape Cod Bagel's Evidence of Harm

MPG rebutted Cape Cod Bagel's presumption of standing and, therefore, Cape Cod Bagel must prove its standing by producing credible evidence in support of its allegation that it will suffer injury. See 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 701.

Parking

Marilyn Fox, Cape Cod Bagel's president and secretary, testified about her concerns related to parking. Fox produced multiple photographs of a delivery truck for MPG parked on the Cape Cod Bagel Property on a single occasion; the same truck is depicted in all of the photographs. [Note 58] Aside from that one instance, Fox did not produce any other evidence of MPG delivery trucks parking on the Cape Cod Bagel Property. Fox conceded that despite having been in contact with MPG's president Peter Garrett, she never raised with him the issue of MPG's delivery trucks parking on the Cape Cod Bagel Property. [Note 59] She testified that she complained to a manager at the MPG convenience store on one occasion, but she could not recall a name. Fox also expressed concerns about MPG's customers parking on the Cape Cod Bagel Property and testified that she has witnessed people parking in the Cape Cod Bagel lot and then walking over to the MPG Property. [Note 60] However, it was evident that she did not actually know whether any customers of the MPG Property were parking at the Cape Cod Bagel Property without also being patrons of Cape Cod Bagel or one of the other businesses on the Cape Cod Bagel Property. She acknowledged that currently, persons parking at one property are sometimes patrons of both. [Note 61] See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 721 (requiring plaintiff to produce credible evidence substantiating allegations).

Fox conceded that any existing parking issues will be remedied under the redevelopment of the MPG Property. For example, the elimination of the auto sales and repair shop will address vehicles parked in parking spaces long-term, which is a situation with which Fox has expressed displeasure. Fox testified about two particular vehicles that she alleges were parked at the MPG Property for a few months. [Note 62] She agreed that the MPG Property will be less congested if all of the vehicles associated with the auto sales and repair shop are removed. Fox likewise agreed that it will be an improvement to have a dedicated loading area on the MPG Property for delivery trucks. Her contention that delivery truck drivers might not park in the loading zone if they do not find it convenient is pure speculation and not enough to overcome MPG's rebuttal of Cape Cod Bagel's presumption of standing. See Sweenie v. A.L. Prime Energy Consultants, supra, 451 Mass. at 543 (speculative testimony that proposed underground gasoline tanks might leak insufficient to support standing). Likewise, Fox's allegation, absent credible and competent evidence (Fox is not a qualified traffic expert, and her expert did not offer an opinion to support this testimony), that MPG's customers will park on the Cape Cod Bagel Property out of convenience to access Jones Road and avoid the left turn onto Palmer Avenue is insufficient to prove standing. Id. Finally, Fox conceded that the proposed parking on the MPG Property meets the requirements of the Bylaw.

Cape Cod Bagel's traffic expert, Jennifer Conley, testified that she conducted a parking count at 302 Palmer Avenue, a convenience store and gas station south of the subject properties, because she was concerned that the MPG Property "seemed to have a low number of parking spaces available for a Dunkin' Donuts facility." [Note 63] She selected what she considered to be a comparable site to observe the experience at that site and "see if my fears were justified." [Note 64] Conley, however, conceded on cross-examination that she is not familiar with the Bylaw's parking requirements and that she had no reason to disbelieve that Monteiro designed the MPG site plan with the requisite number of parking spaces. [Note 65] Further, Conley did not conduct any parking studies at either the MPG Property or the Cape Cod Bagel Property. Accordingly, her opinion on the adequacy of parking at the MPG Property and her concern that the redevelopment at the MPG Property will not provide sufficient parking is speculative and is not supported by credible evidence.

Traffic

Conley reviewed Monticup's trip generation letter and opined that the MPG Property as it currently exists is underutilized and not generating as many trips as suggested, therefore, she believes the increase in trips after the proposed redevelopment will actually be greater than the letter anticipated. [Note 66] Conley conducted her own traffic study, which consisted of collecting data on vehicles queuing on Palmer Avenue in front of the MPG Property, conducting a traffic count at the intersection of Palmer Avenue and Ter Heun Drive (across from Jones Road), and counting the number of vehicles parked at a different location, 302 Palmer Avenue. [Note 67] Conley conceded that she did not conduct a queuing analysis at the Cape Cod Bagel curb cut on Palmer Avenue, nor did she conduct a queuing analysis at either of the curb cuts on the MPG Property. [Note 68] Further, on cross-examination she agreed with Monticup's determination that the increase in trips to the MPG Property would be negligible under the redevelopment, and admitted that she did not evaluate the impact of the additional traffic on the Cape Cod Bagel Property. [Note 69] Without having collected this data, Conley was not in a position to offer a qualified opinion with respect to the impact of the proposed redevelopment on the Cape Cod Bagel Property. She is a qualified traffic engineer who was working with insufficient information from which to produce a creditable report.

Nevertheless, Conley expressed her concern that vehicles heading southbound on Palmer Avenue and stopping to turn left into the MPG Property would create a backup of vehicles traveling in the left turn lane for Jones Road if there are no gaps in the northbound traffic to accommodate vehicles turning left into the MPG Property. Conley further suggested that vehicles turning left out of the MPG Property could block the northbound traffic lane on Palmer Avenue because the driver "might edge out" into the travel lane while waiting for a gap in traffic. [Note 70] However, she provided no data to back up either of these hypotheses, nor did she claim that she had observed this type of behavior; she merely speculated about what "could" happen. As for backups in the southbound traffic lanes, Conley conceded that Cape Cod Bagel is not impacted by queuing from the Palmer Avenue-Jones Road intersection in the southbound lanes because the Cape Cod Bagel site prohibits a left turn onto Palmer Avenue. [Note 71] In regard to Conley's concern that queuing vehicles coming from the MPG Property will block traffic, Conley also conceded that there will be more room on the MPG Property after the redevelopment for cars to queue before entering Palmer Avenue, thus reducing rather than increasing the possibility of cars queuing in the roadway.

On cross-examination, Conley agreed that the redevelopment of the MPG Property to allow a fuel tanker to make deliveries without backing up onto Palmer Avenue is an improved condition. She also agreed that the dedicated loading zone which addresses delivery trucks parking on Palmer Avenue is an improvement. Fox likewise agreed that the proposed changes that allow a fuel tanker to enter and exit the MPG Property without backing up onto Palmer Avenue is a good idea and an improvement over current conditions. [Note 72]

Fox testified that during the summer she witnessed southbound traffic on Palmer Avenue lined up for "quite a long way." [Note 73] She further explained that northbound traffic on Palmer Avenue coming from the direction of Woods Hole is backed up for long distances on the southern side of the Palmer Avenue-Jones Road intersection, especially after a ferry docks. [Note 74] Fox, however, offered no causal connection between these observations and any potential for backup of the northbound lane, north of the Palmer Avenue-Jones Road intersection. In fact, she testified that she has not observed traffic heading north from the MPG Property blocking northbound traffic.

Any injury to Cape Cod Bagel must be special and different from that suffered by the community at large. See Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33. Cape Cod Bagel did not provide any evidence that heavy traffic during the summer or after a ferry docks, either with or without additional traffic from the MPG Property, has an effect on the Cape Cod Bagel Property that differs from the impact on the community as a whole; it is reasonable to infer that traffic backed up for long distances on both sides of the Palmer Avenue- Jones Road intersection is witnessed and experienced by every business located along Palmer Avenue. There was no evidence offered that would credibly support a finding that the redevelopment of the MPG Property would exacerbate backups on Palmer Avenue in either direction at any time of year, or that any such backups would negatively impact the ability of vehicles to enter or exit the Cape Cod Bagel Property. Even if Cape Cod Bagel had offered evidence of more than negligible increases in backups on Palmer Avenue, without evidence that such increases in traffic will actually affect the Cape Cod Bagel Property in a way that directly injures the Cape Cod Bagel Property, such evidence would be insufficient to negate the rebuttal of the presumption of standing. See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 683-684 (plaintiff lacked standing where "plaintiff's interest is not substantially different from that of all of the other members of the community who are frustrated and inconvenienced by heavy traffic").

CONCLUSION

Based on all the evidence, I find and rule that Cape Cod Bagel did not substantiate its allegations with credible evidence sufficient to overcome MPG's rebuttal of Cape Cod Bagel's presumption of standing. Because Cape Cod Bagel lacks standing, its complaint must be dismissed. See Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998). Since I have determined that Cape Cod Bagel "thus has no standing to bring this action, [the court], in turn, ha[s] no jurisdiction to consider anything further." Phone Recovery Services, LLC v. Verizon of New England, Inc., 480 Mass. 224 (2018), slip op. at p. 11.

Judgment will enter accordingly.