PAUL M. KELLEY and SUSAN K. KELLEY v. ORSOLA S. FONTANO, RICHARD ROSSETTI, DANIELLE EVANS, ELANE SERVINO, JOSH SAFDIE, and ANNE BROCKELMAN, in their capacities as members of the SOMERVILLE ZONING BOARD OF APPEALS, and SOMERVILLE HISTORICAL SOCIETY, d/b/a Somerville Museum.

Compared to the other Massachusetts trial courts, the Land Court is a relative sea of calm. But even in this Court, two types of disputes are almost guaranteed to be tempestuous: those between neighbors, and those among family members. This case pretty much has both. It's a struggle between defendant Somerville Historical Society (more commonly known as the Somerville Museum) and two of its abutting neighbors, plaintiffs Paul M. and Susan K. Kelley. At one time the Kelleys were very much a part – some might say even the heart – of the Museum's "family."

There's a second double aspect to this case. It presents both an appeal by the Kelleys under G.L. c. 40A, § 17 of a special permit issued to the Museum by defendant Somerville Zoning Board of Appeals (the "ZBA") in 2016, and claims by the Kelleys that they have acquired by prescription various interests in a corner of the Museum's property. The Court suspects that had the Kelleys brought only just one of these claims, there'd be hard feelings; it should be no surprise what happens when the claims are doubled (or tripled).

The Court resolved in favor of the Museum and the ZBA some of the disputes among the parties at summary judgment, in the summer of 2017. The parties appeared for trial on all but one of the remaining issues on January 22, 23, 24 and 25, 2018. (The exception is this: early in the case, the Museum counterclaimed against the Kelleys for trespass. The Kelleys never replied to that counterclaim, but no matter: the Museum didn't pursue it thereafter. At this juncture, the Court treats the Museum's trespass claims as WAIVED.) The Court took a view of the Museum, its property, the Kelleys' abutting property, and the surrounding neighborhood on the third day of trial. The parties submitted post-trial briefs in February 2018. They then waived the opportunity to present to the Court closing arguments.

Based on the evidence presented at trial, the parties' agreed and stipulated facts, the Court's view, and the arguments of counsel, the Court concludes that during the time that the parties got along, the Museum gave the Kelleys permission to use a corner of the Museum's property. The Kelleys thus have not acquired any interest in any portion of the Musuem's property. The Court further concludes that the ZBA acted within its lawful authority in granting the Museum a special permit in 2016.

The Court reaches these conclusions after finding the following facts:

1. The Kelleys live at 3 Westwood Road in Somerville, Massachusetts. 3 Westwood abuts the west side of the Museum's property at 1 Westwood Road. Both properties are in a Residence A (or "RA") district under the City of Somerville's Zoning Ordinance.

2. The Museum is a non-profit educational organization whose mission is to be a showcase for the history, arts and culture of Somerville, a learning center for Somerville's schoolchildren, a venue for events involving area historians, a gallery and performance space for area artists, and a meeting place for Somerville residents.

3. The Museum occupies a single rectangular building at the corner of Westwood and Central Streets. Central Street abuts the east side of the Museum; Westwood Road runs along the south side of the Museum's property. The cornerstone of the Museum's building was laid in 1925, on property that Susan Kelley's grandfather had donated to the Museum. The Museum and the Kelleys' residence at 3 Westwood are set back from the north/south boundary between the two properties. A sidewalk on the south side of both properties separates each from Westwood Road.

4. The Museum's building has two stories and a basement. The building's "working" entrance is on the Westwood Road side of the building, atop a flight of exterior cement stairs. The southern edge of those stairs and an associated landing go right to the northern edge of the sidewalk along Westwood Road. There's another entrance on the Central Street side of the Museum's building, but that entrance too is at the top of a flight of exterior stairs. Once inside the Museum, one can reach the basement and the second floor only by interior stairs.

5. For reasons that will be explained later, the Museum's building is a "nonconforming" structure under the Zoning Ordinance. The status under the Ordinance of the Museum's use of the building is disputed. In its application for the special permit that produced this appeal (the "Application"), the Museum identified the use as "institutional museum," per § 7.11.5.B.2 of the Zoning Ordinance. The Museum also called its use "museum" in a 2012 special permit application. Section 7.11.5.B.2 of the Ordinance governs "library, museum, art gallery" uses. The Ordinance allows such uses in an RA district only by special permit, and the Kelleys have been content throughout this proceeding to treat the Museum's use as a "museum" use.

6. The ZBA's 2016 decision that granted the Museum a special permit (the "ZBA's Decision) describes the Museum's use as "non-conforming." By contrast, in footnote 21 of its post-trial brief, the Museum claims its use is governed by § 7.11.5.A.2 of the Ordinance, which applies to "[a]ll education purposes by a nonprofit educational corporation." The Ordinance allows such uses as of right in an RA district. Footnote 1 of the Museum's post-trial brief states that the ZBA "agrees with the core arguments" presented by the Museum in its post-trial brief, and the ZBA signed the Museum's brief, but only as to footnote 1. The Court's can't tell whether the ZBA counts the Museum's Footnote 21 as among the Museum's "core arguments."

7. The Kelleys moved to 3 Westwood in 1972. Years before, Susan Kelley had grown up in a house that was immediately north of the Museum, at 58 Central Street. Paul Kelley likewise is a local; he grew up at 2 Westwood Road, across the street from the Museum.

8. During Susan Kelley's youth, a couple known as the Sibleys owned 3 Westwood. When Ms. Kelley was "a small girl," the Sibleys erected a chain-link fence along their property and a portion of the Museum's property, at the sidewalk line. It's not known whether the Sibleys received permission to install the fence on the Museum property. The Sibleys used the fenced-in area as part of their front yard. While the fence prevented direct access to the west side of the Museum's property from the Westwood Road side of the property, one could still reach the west side of the Museum's property by walking counterclockwise around the north side of the Museum building.

9. The Sibleys eventually replaced their chain-link fence with a picket fence. That fence existed at the time the Kelleys bought 3 Westwood in 1972. Following their purchase of 3 Westwood, the Kelleys and their three children used the fenced-in area as part of their front yard.

10. The Kelleys became supporters of the Museum when they moved to 3 Westwood. As of 1972, the Museum was in dire straits. Paul Kelley led a group of volunteers that raised $400,000 and rescued the Museum. He became a trustee of the Museum and served as its President in the 1980s. He continued as a trustee until 2012. Susan Kelley likewise served as a trustee. She also was an active Museum volunteer from the 1970s until 2012, serving in several responsible capacities. Through these activities, the Kelleys formed long-standing, friendly relationships with their fellow trustees.

11. The Museum never has been open frequently, and it relies almost exclusively on unpaid volunteer staff. At some point during their service to the Museum, the Kelleys received a key to the Museum building. Both Kelleys used the key to allow the public, other volunteers, vendors and service personnel into the Museum. The Kelleys also responded to building-alarm incidents, shoveled snow from the Museum's walks and grounds, and raked the Museum's leaves.

12. In the early 1980s, Paul Kelley approached the Museum with a proposal to install a bluestone driveway (the "Driveway") at the southeast corner of the Kelleys' lot. Kelley proposed to extend the Driveway onto the southwest corner of the Museum's property, right to the edge of the Museum building, so as to make the Driveway two-cars wide. The Museum agreed to the proposal. Trial Exhibits 8 and 11 depict the Driveway's dimensions. The portion of the Driveway that lies on 3 Westwood is long enough to accommodate two cars, end to end. The Museum's half of the Driveway is shorter.

13. Many people used the Museum's side of the Driveway following its construction. Those persons included Museum employees, vendors, and trustees. But the primary users were the Kelleys, since the Museum has never been open that often. Because the Kelleys frequently used the Museum's side of the Driveway, persons hoping to use that part of the Driveway often would have to ask the Kelleys to move their cars.

14. Shortly after building the Driveway, Paul Kelley asked a fellow trustee, Steven Mackey, whether he thought the Museum would be willing to enter into an agreement concerning the Kelleys' use of the Museum's portion of the Driveway, or even transfer to the Kelleys that bit of the Museum's property. Mackey told Kelley that the Board of Trustees wouldn't agree to either proposal.

15. Regina Pisa is an attorney. She provided free services to the Museum in the early 1980s. She became a trustee in 1985 and President in 1989. She remained President until 2011. Attorney Pisa has known Susan Kelley since Pisa was in second grade. Pisa described her relationship with both Kelleys as "terrific," cordial and warm.

16. After attorney Pisa became President of the Museum, Paul Kelley proposed that the Museum lease to the Kelleys its portion of the Driveway. Pisa told Kelley that a lease wasn't necessary, and that the Kelleys could continue to use the Museum's portion of the Driveway when the Museum didn't need it. Kelley raised with Pisa the lease issue several times after 1989, most recently in 2011.

17. Until commencing this litigation, the Kelleys never interfered with the Museum's use of the Driveway. The Kelleys didn't claim any prescriptive interest in the Museum's portion of the Driveway until relations between the Museum and the Kelleys had soured.

18. One can trace the root causes of this litigation to events that started in late 2011. Mr. Kelley was still a trustee then. The trustees had decided to replace the Museum's roof. They were told that the project would trigger code requirements that would obligate the Museum to make its building accessible to persons with disabilities. Some of the trustees also understood by 2011 that groups that for years had used the Museum for occasional meetings had stopped coming, reportedly because the Museum lacked suitable access to persons with disabilities.

19. By late 2011, the trustees were mulling two access options. One involved constructing a ramp, on exterior of the Westwood Road side of the Museum building, that would lead to the building's first floor. The other option called for installing a three-story elevator, largely on the outside of the Museum building, somewhere along Westwood Road. Between 1983 and 1986, when Paul Kelley was Museum President, the Museum's trustees had considered and even commissioned plans for installing such an elevator at the southwest corner of the Museum building.

20. On November 29, 2011, the Museum's president, Barbara Mangum, received a letter from attorney John G. Gannon. Attorney Gannon stated that he had been retained "by some neighbors" of the Museum, and that his clients "have been very enthusiastic supporters of the Museum, both financially and in furthering the mission of the Museum." Attorney Gannon claimed that his clients supported the Museum's efforts to make its building accessible, but they objected to the elevator proposal, claiming that it "would increase the density, bulk and footprint of the property on which the Museum is located," have "a significant impact on the neighborhood," and saddle the Museum with high elevator maintenance costs. Attorney Gannon wrote that his clients would back, however, a wheelchair-ramp proposal.

21. Attorney Gannon didn't identify his clients, but Ms. Mangum suspected they included the Kelleys. (Susan Kelley admitted at trial that she and Paul had retained attorney Gannon and provided him with the facts recited in his letter.)

22. The trustees (including Paul Kelley) met on December 3, 2011. At the meeting, the trustees received a presentation from architect Richard Graf concerning various access options. Some of them anticipated building structures in or very close to the Driveway. For various reasons (including her receipt of attorney Gannon's letter), Ms. Mangum had concluded before the meeting that Kelley had a conflict of interest when it came to considering any access proposal. Mangum thus approached Kelley during the meeting, after Graf had finished his presentation, and asked Kelley if he would recuse himself from the trustees' deliberations over access issues. Mangum's request offended Kelley, and he stormed out of the meeting. In early 2012, Kelley resigned as a trustee.

23. In April 2012, the Museum applied for a special permit, pursuant to § 4.4.1 of the Zoning Ordinance, for what the parties call the "Wheelchair Lift Project." The Kelleys supported that project, which proposed the construction of a lift and ramp on the Westwood Road side of the Museum in place of the Museum's existing concrete stairs and landing. The ZBA granted the special permit in May 2012. The Museum hired a contractor to build the ramp, but the contractor went out of business before performing any work.

24. The contractor's default caused the trustees to reconsider the Wheelchair Lift Project. At the time of reconsideration, they learned that the City of Somerville might make grants available for installation of an elevator. Those grants also potentially would cover reinstallation of a Palladian window that had been removed from the Museum in the 1980s. In 1986, Paul Kelley, as Museum President, had executed a Preservation Restriction with the Massachusetts Historical Commission. He signed the Restriction in conjunction with various improvements to the Museum building, which by then was listed on the Massachusetts Register of Historical Places. The Restriction required the Museum to "crate[] and store[]" the Palladian window until "a future date when and if an elevator is installed in the Somerville Historical Museum." The parties have dubbed the combined elevator/window restoration effort the "Project."

25. In October 2015, the Museum filed with the Somerville Historic Preservation Commission, in connection with the Project, an application for a Certificate of Appropriateness under the Somerville Historic District Ordinance.

26. In January 2016, the Museum applied to the ZBA, under § 4.4.1 of the Zoning Ordinance, for a special permit for the Project.

27. Section 4.4.1 of the Zoning Ordinance, titled "Alteration, Reconstruction, Extension, or Structural Change to a Nonconforming Structure," reads in pertinent part:

Lawfully existing nonconforming structures other than one- and two-family dwellings may be enlarged, extended, renovated or altered only by special permit authorized by the [ZBA] in accordance with the procedures of Article 5. The [ZBA] must find that such extension, enlargement, renovation or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming building. In making [that] finding . . . the [ZBA] may consider, without limitation, impacts upon the following: traffic volumes, traffic congestion, adequacy of municipal water supply and sewer capacity, noise, odor, scale, on-street parking, shading, visual effects and neighborhood character. . . .

28. Section 4.5.3 of the Zoning Ordinance, titled "Expansion of Nonconforming Uses," provides in pertinent part:

Expansion, alteration, enlargement or extension of a lawfully existing nonconforming use shall be permitted only by the granting of a special permit authorized by the [ZBA] in accordance with the procedures of Article 5, provided that the [ZBA] finds that such change is not substantially more detrimental to the neighborhood than the existing degree of nonconformity. . . .

For purposes of this Ordinance, a nonconforming use shall be considered to be expanded, altered, enlarged or extended based on the following:

a. An increase in the gross floor area. . . .

29. Section 5.1.2 of the Zoning Ordinance, which is found in Article 5 of the Ordinance, provides in part: "The [ZBA] shall, in its discretion, require the following basic information (#1-4) for all applications for special permits and any additional applicable information including, but not limited to, items listed in #5-25." Among the items listed in subsections 5 through 25 (listed as "Additional Information, If Applicable") are "provisions for vehicular and pedestrian access ways, including proposals for new or relocated curb-cuts and access for emergency vehicles" (id. at § 5.1.2.8) and "demolition and construction procedures[,] including impact mitigation measures; and an estimate of the time period required for completion of the development" (id. at § 5.1.2.19).

30. Section 5.3.1 of the Zoning Ordinance requires special-permit applicants to use "forms provided for that purpose, accompanied by the required fee." The Museum's Application used the ZBA's application form.

31. The Museum's Application suggests that it included a "neighborhood context map." The Application introduced into evidence at trial doesn't contain such a map. The ZBA's application form indicates, however, that an application must include a context map only if the applicant seeks a special permit for a wireless facility.

32. Section 5.1.3 of the Zoning Ordinance provides that "[u]pon written request by the applicant, the [ZBA] may, in its discretion, waive the submission by the applicant of any required information."

33. In its Application, the Museum requested a waiver of requirements pertaining to submission of a building shadow analysis, a traffic study, a traffic impact analysis, a transportation demand management plan, a parking optimization plan, submission of a conceptual 3-D model, photographs showing the development site and surrounding parcels, and a rendering or computer-simulated photograph of the Project. The ZBA's Decision does not state whether the ZBA granted these waiver requests. It is undisputed, however, that (a) the Museum did not provide the information described in this paragraph, and (b) the ZBA nevertheless granted the Museum its requested special permit.

34. In response to the Application's question, "Explain any changes to the vehicular and pedestrian circulation patterns," the Museum replied: "The proposal adds elevator access where there is currently an entry without HC access."

35. Section 5.1.4 of the Zoning Ordinance, titled "Findings and Determinations for Special Permits," provides:

Prior to granting a special permit, the [ZBA] shall make findings and determinations that the proposed . . . lot, building, structure, . . . or a specially authorized modification of dimensional standards or other activity, which is the subject of the application for the special permit:

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 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. . . .

. . .

h) Housing Impact. Will not create adverse impacts on the stock of existing affordable housing.

i) SomerVision Plan. Complies with the applicable goals, policies and actions of the SomerVision [P]lan, including the following, as appropriate: Preserve and enhance the character of Somerville's neighborhoods, Transform key opportunity areas, Preserve and expand an integrated, balanced mix of safe, affordable and environmentally sound rental and homeownership units for houses of all sizes and types from diverse social and economic groups; and make Somerville a regional employment center with a mix of diverse and high-quality jobs. . . .

36. Section 1.2 of the Zoning Ordinance, titled "Purpose," provides:

The purposes of the Ordinance are to promote the health, safety, and welfare of the inhabitants of the City of Somerville; to provide for and maintain the uniquely integrated structure of the 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 protect and promote a housing stock that can accommodate the diverse household sizes and life stages of Somerville residents at all income levels, paying particular attention to providing housing affordable to individuals and families with low and moderate incomes; and to preserve and increase the amenities of the municipality.

37. Section 6.1.1 of the Zoning Ordinance, titled "RA – Residence Districts," provides: "Purpose. To establish and preserve quiet neighborhoods of one- and two-family homes, free from other uses except those which are both compatible with and convenient to the residents of such districts."

38. The Historic Commission issued a Certificate of Appropriateness for the Project, with conditions, in June 2016. The Kelleys didn't appeal the Certificate.

39. The ZBA published legal notice of its public hearing on the Application. The notice states: "Applicant, Somerville Museum under Barbara Mangum, seeks a Special Permit under §4.4.1 of the [Zoning Ordinance] to increase the FAR, and substantially alter the building to install an elevator to meet ADA requirements. RA zone. Ward 3."

40. On August 17, 2016, the ZBA held a public hearing on the Application. At or prior to the hearing, the ZBA received a report from the City's Planning Division staff. The only provision of the Zoning Ordinance that addresses such reports is § 5.3.1 of the Ordinance. It states in pertinent part:

Staff to the [ZBA] and the Planning Board may . . . transmit to the [ZBA] a report or recommendations accompanied by such material, maps or plans as will aid the [ZBA] in judging the application and in determining special conditions and safeguards. The [ZBA] shall not take final action on the application until either a report from staff is received or the expiration of [35] days.

41. The Staff Report states that the Museum needed to install the elevator "in order to comply with the Americans with Disabilities Act (ADA). . . ." The Application does not describe the Project's purpose in that way; instead, the Application states only that the Project "includes an elevator that the existing building currently does not have"; "will provide elevator access for the building and . . . will be MAAB [Massachusetts Architectural Access Board] compliant"; and "adds elevator access where there is currently an entry without any HC access."

42. The Staff Report recommended approval of the Application, with conditions. The Report's Proposed Condition #1 states in part (emphasis added): "Approval is for the extension of the existing rear roof deck and increasing the living area in this structure."

43. At the conclusion of its public hearing on the Application, the Board voted unanimously to grant a special permit to the Museum for the Project. The ZBA filed its Decision with the Somerville City Clerk on August 22, 2017.

44. The ZBA's Decision states in part: "In order to comply with the Americans with Disabilities Act (ADA), the Museum must install an elevator that will provide access to all levels of the building."

45. The ZBA's Decision continues: "The non-conformities affected by this proposal are front[-yard] setback, FAR [floor area ratio], ground coverage and use. . . . The maximum FAR allowed in the RA zone is .75. The building in question is already non-conforming with respect to FAR at 1.17. The ADA-compliant addition will [bring] the FAR up to 1.21." The foregoing statements are factually correct.

46. The ZBA's Decision correctly notes that (a) the Museum's existing front-yard setback is 6.4 feet; (b) the southern edge of the proposed elevator will be built at the Museum's property line, resulting in no setback there; (c) the Museum's existing ground coverage ratio is 50.77%, and (d) the Project will increase that ratio to 55.84%. The Decision does not state, however, the Ordinance's required front-yard setback for buildings is fifteen feet in the RA district, and that the maximum ground-coverage ratio for lots in the RA district is 50%.

47. The Project will increase the gross floor area of the structures on the Museum's property from 2,312 sq. feet to 2,543 sq. feet.

48. The ZBA's Decision states, in connection with "Information Supplied": "The Board finds that the information provided by the Applicant conforms to the requirements of §4.4.1 of the [Ordinance] and allows for a comprehensive analysis of the project with respect to the required Special Permits [sic]."

49. The ZBA's Decision states, in connection with the Project's compliance with the standards set forth in § 4.4.1 of the Ordinance, the following (emphasis added):

[T]he Board finds that the alterations proposed to the Museum are not substantially more detrimental to the neighborhood than the existing, non-conforming building. Staff finds that the proposed addition is in keeping with the general character of the surrounding neighborhood and that the style, design, massing and materials of the addition are compatible with these existing characteristics of the original Museum building.

The style, design, massing and materials of the addition are also in keeping with the character of the Westwood Road neighborhood which contains numerous properties dating from the 1890s through the early 1920s. The surrounding neighborhood contains multiple gable-ended, shingle style, gambrel, and Queen Anne style structures. The Classical Revival elements of the [proposed] addition are compatible with the Classical Revival style of the original Museum structure.

. . .

The proposed addition will reduce the front setback from the already non-conforming 6.4 feet to +/- 0.1 feet. Essentially, the ADA-compliant addition will rest right at the front property line without encroaching on City property.

This is a rare case where the Board would recommend this extensive encroachment into a setback. However, taking into consideration the need to provide ADA access and that the proposed location of the addition provides the best possible access to all portions of the building, including basement restrooms, Staff finds that the proposed addition and its location will not be substantially more detrimental to the structure or to the surrounding neighborhood.

The existing ground coverage conditions are 50.77%. The ADA addition will increase this ground coverage by a further 5.1%. [T]he Board finds that this increase . . . will not be significantly more detrimental to the site or surrounding neighborhood. As the Museum finds itself in a situation whereby it must become compliant in order to hold public functions, this additional ground coverage is necessary to accommodate an appropriately sized, scaled and designed ADA-compliant entrance/exit.

50. The existing cement stairs and landing on the Westwood Road side of the Museum building occupy a portion of what the ZBA's Decision describes as the Project's proposed "encroachment" into the front-setback area. The Project will not come any closer to the Westwood Road sidewalk than do the Museum's existing stairs and landing. The Project effectively trades one entrance-related encroachment in the front-setback area for another, and thus with respect to the building's front setback, the Project will have no greater detrimental effect upon the neighborhood than the existing Museum building. That the Kelleys and another Museum neighbor, Michael Avery, supported the Wheelchair Lift Project – a project that called for similar intrusions into the front-setback area – further supports this finding that the Project will have no greater detrimental effect upon the neighborhood than the existing Museum building.

51. The Project's proposed increase in the Museum building's FAR, from 1.17 to 1.21, will have no greater detrimental effect upon the neighborhood than the existing Museum building.

52. The Project's proposed increase in Museum's existing ground coverage, from 50.77% to 55.84%, will have no greater detrimental effect upon the neighborhood than the existing Museum building.

53. The ZBA's Decision states the Project "is consistent with the general purposes of the Ordinance as set forth under § 1.2, which includes, but is not limited to[,] promoting the health, safety and welfare of the inhabitants of the City of Somerville; to secure safety from fire, panic and other dangers. . . ." (Ellipses in original.) These findings are correct, inasmuch as the Project aims to afford to Somerville inhabitants who have disabilities access to the Museum's facilities. The ZBA could have added to this part of its Decision that the Project (a) "preserve[s] the historical and architectural resources of the City," inasmuch as the Project calls for re-installation of the Museum's historical Palladian window; and (b) "preserve[s] and increases the amenities of the municipality," namely, the Museum itself.

54. The ZBA Decision states: "Though not a housing unit, the Museum and its addition are consistent with a subsidiary purpose of the RA District which is to provide uses that are '… both compatible with and convenient to the residents of such districts.'" (Ellipses and italics in original.)

55. With respect to the issue of "site and area compatibility," the ZBA's Decision repeats the following, from earlier in the Decision:

The style, design, massing and materials of the addition are . . . in keeping with the character of the Westwood Road neighborhood which contains numerous properties dating from the 1890s through the early 1920s. The surrounding neighborhood contains multiple gable-ended, shingle style, gambrel, and Queen Anne style structures. The Classical Revival elements of the [proposed] addition are compatible with the Classical Revival style of the original Museum structure.

These observations are factually correct. The Project's design is based upon a Colonial-era building with similar proportions. The Project's design lends itself to the purposes of the Museum and complements the original Museum building in a way that the existing southern elevation of the Museum building does not. The Project will use traditional materials, such as brick, cast stone, glass, wood, and clapboard, and has casings, windows and shutters that relate to building's forms and details.

56. With respect to "housing impact," the ZBA's Decision states: "The proposal is for a museum building and has no impact on the stock of affordable housing." These statements are factually correct.

57. With respect to the "SomerVision Plan," the ZBA's Decision states: "The proposal is for a museum building and has no impact on the SomerVision Plan." None of the parties offered the SomerVision Plan into evidence at trial. The Court nonetheless finds that the Project will preserve and enhance the character of the Westwood Road Historic District by (a) creating a more architecturally compatible southern elevation for the Museum building, (b) restoring the Museum's historical Palladium window, and (c) allowing persons with disabilities to enjoy the interior architecture of the Museum (which permanently displays a historical interior staircase) and to patronize the Museum with greater ease than presently. The Project will have no negative effects upon the surrounding neighborhood.

58. The Project will not change existing vehicular and pedestrian circulation patterns at or near the Museum. The Project calls for installing an accessible entrance, plus a new entrance with stairs, at the Museum's current principal entrance. Improving the quality of the current Museum entrance will not change how vehicles or pedestrians currently approach or depart from the Museum building.

59. The ZBA's Decision contains a Condition #1. Condition #1 begins (emphasis added): "Approval is for the construction of an addition to house and elevator to address ADA access." Condition #1 then refers to three specific sets of plans pertaining to the Project. Condition #1 closes with this: "Any changes to this project must be submitted to Planning Staff for review prior to their implementation."

60. The ZBA's Decision contains a Condition #13, "Final Sign-Off." That Condition states: "The Applicant shall contact Planning Staff at least five working days in advance of a request for a final inspection by Inspectional Services to ensure the proposal was constructed in accordance with the plans and information submitted and the conditions attached to this approval."

61. The Kelleys timely appealed the ZBA's Decision to this Court.

*.*.*

Having found the facts, the Court turns to the Kelleys' claims. Their Amended Complaint has two counts. Count I is an appeal under c. 40A, § 17 from the ZBA's Decision granting the Museum a special permit for the Project. Count II is labelled "adverse possession," but it comprises two claims: that the Kelleys have (a) acquired by adverse possession fee title to the Driveway on the Museum property (the "Disputed Area") or, in the alternative, (b) obtained by prescription an easement for their "continued use" of that Area.

The Court will address Count II first. That's because the ZBA ignored the Kelleys' title and easement claims when it granted the Museum a special permit. The ZBA told the Court that if the Kelleys held title to, or had an easement in, the Disputed Area, the ZBA would want to reconsider its decision, regardless of the other issues the Kelleys raise.

The Kelleys' Claims of Prescriptive Rights

The Court resolved the Kelleys' adverse-possession claim at summary judgment. The "burden of proving adverse possession is on the person claiming title thereby and 'extends to all of the necessary elements of such possession.'" Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The elements of a claim for adverse possession include the requirement that the plaintiff prove that he or she used the disputed area exclusively – that is, to the exclusion of the area's rightful owner – for a continuous period in excess of twenty years. See, for example, Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The undisputed facts presented at summary judgment showed, and the evidence at trial confirms, that neither the Kelleys nor their predecessors in interest, the Sibleys, used the Disputed Area in a manner that excluded or prevented the Museum from using it. Even during the period in which the Sibleys and the Kelleys enclosed the southern edge of the Disputed Area, the Museum was able to enter it from the northern side of its property. The lack of evidence of their or the Sibleys' exclusive use of the Disputed Area defeats the Kelleys' claims for adverse possession of that area.

Now to the Kelleys' prescriptive-easement claims. "[A] claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007); see also G.L. c. 187, § 2.

The Kelleys' construction and maintenance of the Driveway for more than twenty years creates a presumption that their use of the Disputed Area was adverse. See Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009); see also Shashoua v. Zien, 19 LCR 488 , 489 (2011)

("Constructing buildings, installing paving, erecting a fence or other physical enclosure, and making other permanent changes to the land are generally recognized as sufficient acts of possession" for purposes of establishing an easement by prescription). But the Museum has defeated that presumption by proving that the Museum gave the Kelleys permission for all of their Driveway-related activities. The Museum gave that permission at the time the Kelleys first built the Driveway and, again, at the beginning of Regina Pisa's term as Museum president. The Kelleys thus have not acquired any easement over the Disputed Area. See Spencer v. Rabidou, 340 Mass. 91 , 93 (1959); Rotman, 74 Mass. App. Ct. at 589.

The Court thus will enter judgment in FAVOR of the Museum and AGAINST the Kelleys on Count II of their Amended Complaint. Because the Court finds that the Museum permitted the Kelleys to build and use the Driveway within the Disputed Area, the Court need not reach the issue of whether, by virtue of having been Museum trustees during the prescriptive period, the Kelleys have a higher than usual burden of proving their "adverse" use of the Driveway. (In regards to that subject, Kilburn v. Adams, 48 Mass. (7 Met.) 33, 39-40 (1843), and, nearly 100 years later, Westhampton Reservoir Rec. Corp. v. Hodder, 307 Mass. 288 , 290- 291 (1940), are instructive.) The Court also will review the ZBA's Decision on the premise that the Disputed Area is free and clear of any easements held by the Kelleys.

The Kelleys' Special-Permit Appeal

The standards governing a court's review under c. 40A, § 17 of a grant of a special permit are familiar. The court first must find the facts, based solely on admissible evidence. Using the facts it has found, the court must then determine whether the municipal board's decision is valid. Under § 17, the courts "may not concern themselves with the wisdom" of a grant of a special permit; "we may only review its validity." Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976). A board's decision is "valid" under § 17 "'unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of [the board's] judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381-82 (2009), quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999).

Wendy's first prong of attack, one concerning a "legally untenable ground" for a special- permit decision, focuses on whether the local board relied on "a standard, criterion, or consideration not permitted by the applicable standards or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). The Kelleys don't challenge the ZBA's Decision on that basis. Instead, they invoke Wendy's other prong, that the Decision was "unreasonable, whimsical, capricious or arbitrary." They claim that the Decision has both procedural and substantive flaws. The Court will address the alleged flaws in that order.

The Kelleys' Procedural Objections to the Special Permit

The Court disposed of many of the Kelleys' procedural challenges before trial, by summary judgment. The Court summarizes its rulings here.

The Kelleys first argued that the August 2016 Planning Staff Report contained two errors. The Report first asserted that the Museum "must install an elevator" in order to "comply with the Americans With Disabilities Act (ADA). . . ." That's not accurate: while other codes may have required the Museum to install an elevator, the ADA, by itself, doesn't. Second, the Report proposed a Condition #1 for the Museum's special permit that included this statement: "Approval is for the extension of the existing rear roof deck and increasing the net living area in this structure." The Project, of course, didn't include a rear roof deck, and wasn't intended to increase anyone's net living area.

While the Kelleys' criticisms of the Staff Report are fair, Somerville's Zoning Ordinance doesn't condition approval of special permits on the ZBA's receipt of error-free Staff Reports. (At trial, the Kelleys contended that the Report also erroneously discussed the extent to which the Project would alter the Museum building. This Decision will examine later whether the ZBA got that issue right, but the fact that the Staff may have erred has no legal consequence.) The Kelleys also provided no evidence at summary judgment that Staff's errors caused the ZBA to grant a special permit when it otherwise wouldn't have. It's true that the ZBA's Decision repeats the first inaccuracy word for word, but the Decision doesn't say that the ZBA granted the special permit solely because the Museum had no alternative to meeting ADA requirements other than by installing an elevator.

The Kelleys made similar attacks at summary judgment on the ZBA's public notice of the Museum's special-permit Application. The public notice states that the Museum was installing an elevator "in order to meet ADA requirements." General Laws c. 40A, §§ 9 and 11, govern public notices of special-permit hearings. (Somerville's Zoning Ordinance is silent on that subject.) Section 11 provides in pertinent part:

Publications and notices required by this section shall contain the name of the petitioner [for a special permit], a description of the area or premises, street address, if any, or other adequate identification of the location, of the area or premises which is the subject of the petition, the date, time and place of the public hearing, the subject matter of the hearing, and the nature of the action or relief requested if any.

The purpose of c. 40A, §§ 9 and 11's notice and hearing requirements "is to ensure that zoning authorities act on special permit applications only after the opposing interests have had a fair opportunity to be heard." Tenneco Oil Co. v. City Council of Springfield, 406 Mass. 658 , 660 (1990). The ZBA's notice of the Application met § 11's requirements, and provided enough information for the public to decide whether to be heard on the Application. Section 11 doesn't require publication of the applicant's reasons for seeking zoning relief, and the Kelleys offered no authorities at summary judgment to the contrary.

The Kelleys targeted at summary judgment a third error, this one in the ZBA's Decision. The Decision's Condition #1 states in part: "Approval is for the construction of an addition to house and elevator to address ADA access." (Emphasis added.) The Kelleys argue that the permit wasn't for "an addition to house." They characterize Condition #1 as a misguided attempt to correct the Staff Report's defective proposed Condition #1. But it's equally possible that the ZBA's Condition #1 contains simply a typo: "and" should be "an." After all, there's no dispute that the Museum had proposed "construction of an addition to house an elevator to address ADA access."

Regardless of how one describes the mistake in the ZBA's Condition #1, the Kelleys fail to explain how the error makes the ZBA's Decision invalid. That's because it doesn't. Moreover, the rest of the ZBA's Decision, taken as a whole, prevents the Museum from building something other than an "elevator to address ADA access." Condition #1 ties the ZBA's approval to the Project's specific stamped plans. Condition #13 provides for enforcement of the Museum's obligations to build only what it disclosed on the plans listed in Condition #1. The error in the first sentence of Condition #1 thus does not undermine the ZBA's Decision.

The Kelleys fared no better with the five procedural attacks they pursued at trial:

1. The Kelleys accuse the Museum of having submitted a defective Application: the Application claimed to have included a neighborhood-context map, when it didn't. Chapter 40A refers to, but doesn't prescribe the content of, special-permit applications. The statute allows municipalities to decide what materials they want to see in an application. For its part, § 5.3.1 of the Zoning Ordinance requires special-permit applicants only to use "forms provided for that purpose. . . ." The Museum used the correct form. It's true that Application submitted into evidence lacked a neighborhood-context map, but that doesn't matter: the ZBA's form requires a context map only in connection with applications for special permits for wireless facilities.

2. The Kelleys fault the ZBA's Decision for failing to declare whether the ZBA had granted the Museum various waivers from the ZBA's application requirements, many of which pertain to traffic and parking impacts. Section 5.1.3 of the Zoning Ordinance expressly grants the ZBA the power to waive "in its discretion" its application requirements. Nothing in c. 40A or the Zoning Ordinance requires the ZBA to announce in writing that it has granted a § 5.1.3 waiver. See Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 , 221 (1982) ("[W]e do not think that the duty of boards of appeals . . . to set forth the reasons for [their] decisions and official actions extends to explaining each event in the procedure.").

3. The Kelleys seem to argue that the scant information that the Museum provided in the Application pertaining to traffic, parking, shading, visual effects and neighborhood character, coupled with the ZBA's (unexpressed) waivers of its standard application requirements, deprived the ZBA of information on topics the Kelleys claim § 4.4.1 of the Ordinance required the ZBA to consider. The Kelleys misread § 4.4.1. It requires the ZBA, when allowing the extension, enlargement, renovation or alteration of a nonconforming building, to find only "that such extension, enlargement, renovation or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming building." Section 4.4.1 says that "[i]n making [that] finding . . . the [ZBA] may consider, without limitation, impacts upon the following: traffic volumes, traffic congestion, adequacy of municipal water supply and sewer capacity, noise, odor, scale, on-street parking, shading, visual effects and neighborhood character. . . ." (Emphasis added.) That the ZBA may consider various impacts doesn't mean the ZBA must do so. See Cohen v. Board of Water Commissioners, Fire Dist. No. 1, So. Hadley, 411 Mass. 744 , 751-52 (1992). The ZBA's decision not to demand traffic, parking, shading, visual effect or other studies before granting a special permit thus does not invalidate that permit.

4. The Kelleys contend that § 5.1.2 of the Ordinance requires the Museum to provide information regarding "provisions for vehicular and pedestrian access ways, including proposals for new or relocated curb-cuts and access for emergency vehicles" (§ 5.1.2.8) and "demolition and construction procedures[,] including impact mitigation measures; and an estimate of the time period required for completion of the development" (§ 5.1.2.19). The Kelleys misread § 5.1.2. It states (emphasis added): "The [ZBA] shall, in its discretion, require the following basic information (#1-4) for all applications for special permits and any additional applicable information including, but not limited to, items listed in #5-25." None of the information described in § 5.1.2 is mandatory; all of it lies within the ZBA's discretion to require, and the Kelleys fail to prove that the ZBA abused its discretion.

5. Finally, while the Kelleys admit that the ZBA's Decision describes how the Project would affect the existing Museum building's FAR, front-yard setback and ground-coverage nonconformities, they fault the Decision for not mentioning what the Ordinance requires for conforming buildings in the RA zone (save for FAR, which the Decision does mention). Nothing in § 4.4.1 requires ZBA decisions to recite the Ordinance's standards for as-of-right structures. The Kelleys seem to suggest that unless the Decision expressly recites the applicable as-of-right standard, one must assume that the ZBA ignored the standard, or didn't bother to use it in analyzing the extent of the Project's nonconformities. The presumption is the opposite: a ZBA is assumed to know its local laws, perhaps better than anyone else. See Wendy's, 454 Mass. at 381. The Court thus concludes that the ZBA followed lawful procedures in granting the Museum a special permit.

The Kelleys' Substantive Objections to the Special Permit

The Kelleys raise eight substantive objections to the ZBA's grant of a special permit. They first argue that the ZBA's Decision fails to give the Museum all the zoning relief it needs in order to build the Project. They point out the Museum applied for a special permit under only § 4.4.1 of the Ordinance, a provision that addresses alterations and extensions of nonconforming structures. The Kelleys contend that the Project also will expand a nonconforming use, that of a library/museum/art gallery. Section 4.5.3 of the Ordinance covers expansions of nonconforming uses, but the ZBA's Decision doesn't grant relief under (or even mention) § 4.5.3.

The Museum argues that it doesn't need a special permit under § 4.5.3. The Museum submits that its use classification isn't that of a library/museum/art gallery (governed by § 7.11.5.B.2 of the Ordinance), a use that requires a special permit in an RA district. The Museum claims that its use classification is that for "all education purposes by a nonprofit educational corporation." Section 7.11.5.A.2 of the Ordinance allows that use as of right in an RA district. If that's the correct use classification, the Project won't be increasing a "nonconforming" use. The Museum also argues, as it did at summary judgment, that given its status as an educational institution, the so-called Dover Amendment, G.L. c.40A, § 3, prohibits the City of Somerville from requiring the Museum to get any special permit in order for the Museum to perpetuate its educational uses.

The Court won't decide whether the Museum has received enough zoning relief to proceed with the Project, for two reasons. First, the issue is ancillary to the only question before the Court in Count I, namely, whether the ZBA's Decision (a decision that granted a special permit under only § 4.4.1 of the Ordinance, as the Museum requested) is correct. If the Ordinance required special-permit applicants to apply for complete zoning relief any time they sought some zoning relief, the Museum's alleged failure to apply for a special permit under § 4.5.3 of the Ordinance would be ripe for judicial review. But the Ordinance doesn't require applicants to file for one-and-done permits. That means that the Museum's alleged failure to get a special permit under § 4.5.3 has no bearing on whether the ZBA correctly granted a permit under § 4.4.1.

The second reason why the Court won't tackle the § 4.5.3 issue is that the Court doesn't know how the City characterizes the Museum's use. On the one hand, the ZBA's Decision states that the Museum's use is "non-conforming," consistent with what the Museum said in its Application. (That statement's not dispositive, as the grant of a special permit under § 4.4.1 doesn't depend at all on the applicant's use classification.) On the other hand, the ZBA signed on to the Museum's post-trial brief, a brief in which the Museum asserts (albeit in a footnote, the 21st of 22, at the tail end of its brief) that its use is a conforming, "educational corporation" use under § 7.11.5.A.2 of the Ordinance. The Court hesitates to rule on an important local zoning question when the Court doesn't have the benefit of a considered, authoritative decision by local authorities.

The Court thus ducks the Kelleys' § 4.5.3 argument. The Court turns instead to their seven remaining attacks on the specific special permit that the Museum received, one under § 4.4.1 of the Ordinance.

Section 5.1.4 of the Ordinance requires the ZBA to make four findings and determinations (here labelled "Finding A," "Finding B," and so forth) with respect to every special permit. Section 5.1.4 also requires the ZBA to make other findings and determinations if the ZBA decides that any of five listed "objectives" is "applicable to the particular application for a special permit." The ZBA determined that two such objectives, that pertaining to "housing impact" and another to the "SomerVision Plan," were applicable to the Museum's Application. That prompted what this decision will call Findings H and I, respectively. The Kelleys' remaining arguments center on the adequacy of those findings (and, in one instance, the lack of an allegedly required finding).

Finding A. Section 5.1.4.a of the Ordinance requires the ZBA to find that the applicant's proposal "[c]omplies with the information requirements of Section 5.1.2." It's undisputed that the ZBA made that finding. As noted earlier, article 5 of the Ordinance gives the ZBA considerable discretion in determining what information it needs before granting a special permit. There is no evidence that the ZBA abused that discretion. Finding A thus is valid.

Finding B. Section 5.1.4.b of the Ordinance requires the ZBA to find that the applicant's proposal "complies with such criteria or standards as may be set forth in the Ordinance which refer to the granting of the requested special permit." The Museum sought its special permit under § 4.4.1 of the Ordinance. Section 4.4.1 lists only one standard for the grant of a special permit for the extension, enlargement or alteration of a nonconforming structure, namely, that the ZBA "find that such extension, enlargement, renovation or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming building."

It's undisputed that the ZBA made Finding B, but the Kelleys argue that it's contrary to fact. The Court disagrees. The Museum building has three structural nonconformities: it doesn't have a fifteen-foot front-yard setback; its FAR is 1.17 (and not 0.75); and it covers 50.77% of its lot (when 50% is the maximum). The Project proposes an addition to be built entirely within the setback; the addition will increase the Museum's FAR to 1.21, and result in covering 55.84% of the Museum's lot. The Kelleys offered no evidence of detrimental effects upon the neighborhood with respect to the increased FAR or the ground-coverage ratio. As for the setback encroachment, the ZBA validly concluded that replacing an inaccessible stairway and landing that's already in the setback area with facilities that would afford better access wouldn't have a detrimental effect upon the neighborhood. Finding B is thus valid.

Finding C. Section 5.1.4.c of the Ordinance requires the ZBA to make two findings. The ZBA first must determine that the proposed project is consistent with "the general purposes of this Ordinance as set forth in Article 1. . . ." The ZBA's Decision expressly so finds, and it highlights the Ordinance's regard for promoting the "health, safety and welfare of the inhabitants of the City of Somerville" and securing their "safety from fire, panic and other dangers. . . ." The Kelleys offer no evidence that contradicts this finding, and the Court sustains it.

The second required § 5.1.4.c finding is that the project is consistent with "the purposes, provisions, and specific objectives applicable to the requested special permit which may be set forth elsewhere in this Ordinance. . . ." The ZBA identified only one such set of objectives outside of § 4.4.1 of the Ordinance, those found in § 6.1.1. Section 6.1.1 describes the purpose of the RA district: "To establish and preserve quiet neighborhoods of one- and two-family homes, free from other uses except those which are both compatible with and convenient to the residents of such districts." The ZBA's Decision expressly finds that the Museum and the Project constitute compatible and convenient uses for the RA district's residents. The Kelleys presented no evidence that the Museum, which is on the cusp of its centennial in the Kelleys' neighborhood, has ceased to be a compatible or convenient use in the RA district. To the contrary: the Kelleys and their witnesses proudly professed to be supporters of the Museum, and they welcomed improving disabled persons' access to the building (just not by the proposed elevator). The Court thus sustains the ZBA's finding regarding the Project's consistency with the purposes of the RA district.

Finding D. Section 5.1.4.d requires the ZBA to determine whether the Project "[i]s 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." The ZBA so found, and the facts as found by the Court concerning the Museum site, the surrounding (completely built) neighborhood and the surrounding land uses confirm the ZBA's finding. The ZBA's finding also is consistent with the Somerville Historic Preservation Commission's decision to grant the Project a Certificate of Appropriateness. The Court thus sustains Finding D.

Finding H. This is the first of the ZBA's "additional" findings under § 5.1.4. It asks whether the Project "[w]ill not create adverse impacts on the stock of existing affordable housing." On this point, the ZBA's Decision states: "The proposal is for a museum building and has no impact on the stock of affordable housing." The Kelleys don't challenge this finding. Finding H is consistent with the facts the Court has found, and thus the Court sustains Finding H.

Finding I. This is the second of the ZBA's additional findings, pertaining to the Project's compliance "with the applicable goals, policies and actions of the SomerVision [P]lan." In this regard, the ZBA's Decision states: "The proposal is for a museum building and has no impact on the SomerVision Plan." None of the parties introduced the SomerVision Plan at trial, so the Court cannot determine by direct evidence (that is, by reading the SomerVision Plan) whether Finding I is correct. But there's circumstantial evidence that supports Finding I. Section 5.1.4.i lists four of the SomerVision Plan's goals. They include "preserv[ing] and enhanc[ing] the character of Somerville's neighborhoods. . . ." Before trial, the Kelleys asked the Court to find that the Project won't comply with the SomerVision Plan only because it will not "preserve and enhance the character of the Westwood Road Historic District and, in fact, [will have] a negative impact upon the Historic District." The Court has found the opposite. The Court thus sustains Finding I.

The "Missing" Finding. The Kelleys argue that the ZBA should have made one additional § 5.1.4 finding, a "Finding F," relating to vehicular and pedestrian circulation. When "applicable to a particular application for a special permit," § 5.1.4.f calls for a finding that "[t]he 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."

The Kelleys can prevail on this issue only if they can establish that the Project will cause a change in the existing "circulation patterns for motor vehicles and pedestrians. . . ." They failed to do so. The Project replaces the Museum's principal building entrance on Westwood Road with two entrances: a doorway that enters an alcove that leads to an elevator, and another doorway atop a flight of stairs. Both building entrances remain, however, on Westwood Road, at the southwest end of the Museum property (away from the intersection of Westwood and Central). The neighborhood thus will experience no change in vehicle or pedestrian circulation patterns: vehicles and persons will arrive at the Museum in the same fashion, and via the same routes, as they do today. Section 5.1.4.f thus does not require the ZBA to have made a "vehicular and pedestrian circulation" finding with respect to the Project.

The Kelleys raise a second, related argument: that the ZBA should have made findings concerning the Project's impacts on parking. The Kelleys fail to identify any provision of the Ordinance that requires the ZBA to assess parking impacts in connection with the issuance of a special permit under § 4.4.1. That doesn't mean that the Ordinance disregards parking. Article 9 of the Ordinance addresses, for example, off-street parking and loading. But Article 9 doesn't govern the issuance of special permits under § 4.4.1: instead, article 9 appears to apply only at the time one requests a "building permit or certificate of occupancy. . . ." Ordinance at § 9.2. That hasn't happened for the Project. (Section 9.2 goes on to say, however, that "[n]othing contained in this Article [9] shall be construed to apply to the use of land or structures for religious or educational purposes if doing so would violate the applicable provisions of M.G.L. Chapter 40A, Section 3." (Emphasis added.) The Court explained earlier why it won't jump into the use thicket at this time.)

The Court thus holds that, in light of the facts that the Court has found after trial, the ZBA acted validly in granting the Museum a special permit. The Court thus will enter judgment in FAVOR of the ZBA and the Museum, and AGAINST the Kelleys, on Count I of their Amended Complaint.

Judgment to enter accordingly.