THE UNION LOWELL, LLC v. THOMAS LINNEHAN, JORDAN GYS, RICHARD LOCKHART, GERARD F. FRECHETTE, RICHARD SNETSKY, and ROBERT P. MALAVICH, as Members of the City of Lowell Planning Board.

The Union Lowell, LLC ("TUL") appeals a decision of the City of Lowell Planning Board (the "Board"), pursuant to G.L. c. 40A, §17, that denied TUL's application for a special permit and site-plan approval to construct a dormitory. TUL claims that Board misapplied two provisions of the City of Lowell's zoning ordinance in denying TUL's application. One provision describes the plans an applicant must submit in order to obtain site-plan approval. The other provision pertains to a developer's obligations to provide off-street parking. While the Board's decision contains several errors, the Board did not err in faulting TUL for failing to provide sufficient plans and not providing required parking.

The issues come before the Court on TUL's motion for partial summary judgment, TUL's second such motion in this case. The Court will describe the undisputed facts as they pertain to particular issues, but here's the undisputed context of this appeal: TUL hopes to build what will be a privately owned and operated dormitory for students attending the University of Massachusetts at Lowell. (Because TUL will own and operate the dorm, § 7.8 of the City of Lowell's Zoning Ordinance, titled "Privately Developed and/or Operated Dormitories," applies to TUL's development.) The site of the proposed dorm is within an urban mixed use (or "UMU") district under the Ordinance. Building the dorm requires site-plan approval and a special permit under the Ordinance, and in January 2018, TUL applied to the Board for both. See Ordinance at § 11.4.4 (Board reviews site plans); id. at § 11.3.1 (Board is special-permit granting authority for any project requiring site-plan review).

The Board held a preliminary hearing on TUL's application. TUL then submitted a revised application, in February 2018. In March 2018, the Board held another hearing and voted to deny both site-plan approval and a special permit. TUL timely appealed the Board's decision to this Court.

The Board gave separate reasons for denying site-plan approval and for denying TUL a special permit. The Court will deal with each denial separately, starting with the denial of site-plan approval. The Board gave three reasons for withholding that approval. They are:

1. The applicant did not submit a lighting plan for review and approval pursuant to Section 11.3.2a(C)(11), and Section 11.4.6.(4)(A) of the Lowell Zoning Ordinance.

2. The submitted landscape plan . . . and architectural renderings . . . were inconsistent.

3. The proposed parking does not meet the minimum requirements pursuant to Section 11.4.10 of the Lowell Zoning Ordinance.

In an August 2018 order – issued in response to TUL's first motion for partial summary judgment -- this Court ruled that the Board's decision insufficiently explained or supported Reason #3. See Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 387 (2009). TUL now challenges Reason #1, concerning TUL's alleged failure to submit a lighting plan.

TUL first points out that Reason #1 relies on a requirement, § 11.3.2a(C)(11) of the Ordinance, that doesn't pertain to site-plan reviews. TUL's correct. It's undisputed that § 11.3.2a of the Ordinance is titled "Criteria for Special Permits in the Table of Uses." (Emphasis added.) Section 11.3.2a is part of § 11.3 of the Ordinance – a section titled "Special Permits" – and not § 11.4 of the Ordinance, which is titled "Site Plan Review." While the Board was responsible in this case for deciding both the site-plan-approval and special-permit aspects of TUL's project, there's nothing in § 11.4 that allows the Board to deny site-plan approval on the basis of an applicant's non-compliance with § 11.3's requirements.

Even if the Ordinance allowed the Board to weigh § 11.3's criteria when reviewing site plans under § 11.4, the Board's conclusion – that TUL failed to comply with § 11.3.2a(C)(11)'s requirements as they pertain to lighting plans – is legally and factually incorrect. It's undisputed that § 11.3.2a provides (bold in original; italics added):

Criteria for Special Permits in the Table of Uses. For special permits sought under Article XII: Table of Uses of this document, the Special Permit Granting Authority will only grant a special permit to a project that is consistent with the goals of the City of Lowell Comprehensive Master Plan. A narrative must accompany each application and provide significant information to address how the project meets these goals. At a minimum, the narrative must answer the following:

. . .

C. Environmental Issues:

. . .

11. Does the project minimize lighting glare on abutting properties?

Section 11.3.2a(C)(11) doesn't direct the applicant to submit a "lighting plan." It obligates the applicant to file only a "narrative," a document that, "at a minimum," answers § 11.3.2a's questions. It's undisputed that TUL provided a narrative in support of its revised February 2018 application. That narrative contained this (emphasis in original): "11. Does the project minimize lighting glare on abutting properties? The proposed lighting plan will serve to enhance the security in the neighborhood. Lighting will meet or exceed all current code requirements." While the Board could have concluded that TUL's answer to Question 11 was unsatisfactory, the Board had no business faulting TUL for not providing a narrative, or claiming that § 11.3.2a(C)(11) required TUL to file something about lighting beyond a narrative.

While the Board misread § 11.3.2a(C)(11)'s requirements, it didn't misconstrue the other provision cited in Reason #1 as requiring a lighting plan, § 11.4.6.(4)(A) of the Ordinance. Section 11.4.6 provides (emphasis in original):

Application. An application for site plan approval shall be accompanied by six (6) copies of the site plan . . . . The site plan shall include the following information, which shall be submitted on the following sheets:

1. Existing Conditions.

. . .

4. Landscaping and Lighting.

A. Location and type of external lighting. . . .

TUL has three arguments concerning its alleged non-compliance with § 11.4.6.(4)(A). TUL first claims that, contrary to what reads as a command in § 11.4.6 (that a site plan "shall include" various information "submitted on the following sheets"), in practice one needn't submit a lighting plan with a development application unless the Board asks. In support of that argument, TUL points to a statement in one of the Board's application forms. The statement is found in Exhibit 8 to TUL's summary-judgment appendix (underline in original, italics added):

The following may also be requested on separate sheets by the Board

- Landscape/Lighting Detail: Location and type of external lighting; Location, type, dimensions and quantities of landscaping and screening . . . .

TUL's argument suffers from the same type of mistake that this decision earlier attributed to the Board: it confuses the Ordinance's requirements for special permits with those for site-plan approvals. It's undisputed that in January 2018, TUL submitted to the Board a thirteen-page development application (the same Exhibit 8 mentioned above). The first three pages of Exhibit 8 comprise something called the "Land Use Board: Main Application." Those pages require the applicant to identify, among other things, which permits the applicant seeks. As pertains to the current appeal, TUL checked two blanks. One says "Site Plan Review (See Site Plan Review Supplement Form)" and the other says "Special Permit (See Main Special Permit Supplement Form)." The other ten pages of Exhibit 8 comprise the two required "Supplement" forms. The language that suggests that the Board "may also" request lighting detail appears in the Special Permit Supplement. The Site Plan Review Supplement, by contrast, contains "lighting detail" requirements that are identical to those in § 11.4.6(4)(A) of the Ordinance. The latter supplement also reprints, word for word, § 11.4.6 itself.

TUL's second argument is that it provided the required lighting detail, although not on a document called "lighting plan," "lighting detail," or words to that effect. It's undisputed that in February 2018, TUL submitted to the Board an "existing conditions" plan. That plan shows the locations of the existing "light poles" on TUL's site. TUL contended at oral argument on its motion that TUL intended to make no changes to the "existing conditions" lighting at the site.

There's no support in the summary-judgment record for TUL's contention. To the contrary, the record contains several facts that suggest that TUL would improve upon (and not merely keep) the "existing conditions" lighting. For example, the PowerPoint accompanying TUL's project narrative for its revised February 2018 application says this (bullet in original):

* Improves exterior lighting for sidewalks and area activity

The narrative itself asserts (bullet in original):

* The Development will help to enhance safety in the neighborhood as the building will be well lit and incorporate security cameras

The narrative further promises: "The entire building on all sides will include a well-lit exterior surrounding the perimeter of the building, improved sidewalks and security to the dormitory residents and added security to the neighborhood. The Development will provide a visual enhancement to the surrounding area." And as noted earlier, the narrative assures the Board that "[t]he proposed lighting plan will serve to enhance the security in the neighborhood. Lighting will meet or exceed all current code requirements."

In considering a motion for summary judgment, the Court must draw all reasonable inferences from the record facts against the moving party (here, TUL). See Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235 , 242-243 (2007). The reasonable inference from the record is that TUL intended to change the site's lighting from its existing condition. As the record doesn't contain a plan that identifies those changes, the Court can't hold on summary judgment that TUL submitted lighting details in accordance with § 11.4.6.

TUL's final argument is that the Board's senior planner, Christine McCall, acknowledged in a February 26, 2018 memorandum that TUL would submit a lighting plan after approval of the special permit. TUL wants the Court to infer from that statement that the Board doesn't require lighting plans as part of site-plan review. TUL doesn't characterize the memorandum accurately.

It begins by summarizing the Ordinance's substantive criteria for approving a private dormitory. The memorandum doesn't purport to review TUL's compliance with the Ordinance's application requirements. The memorandum then offers five comments on TUL's proposal. The fifth and longest comment contains "proposed conditions" for the project, including a purported "standard" condition that, prior issuance of a building permit, the applicant submit a "street lighting plan," including details about street-light construction and equipment. The Court doesn't infer from this proposed condition (nor could it draw such an inference in TUL's favor on summary judgment) that the Board or anyone acting on its behalf had waived TUL's obligations to submit an external-lighting plan.

The Court thus DENIES TUL's motion for summary judgment with respect to the Board's Reason #1 for rejecting site-plan approval. TUL's motion likewise fails in its challenge to the special-permit aspects of the Board's decision.

The Board gave five reasons for denying TUL a special permit. They are:

1. The applicant does not provide sufficient evidence that the project as proposed meets a community need pursuant to Section 11.3.2 of the Lowell Zoning Ordinance.

2. The proposal does not comply with 6.1.6(5) and 6.1.6(6) of the Lowell Zoning Ordinance as the supplemental parking provided is not within a distance of fifteen hundred feet . . . .

3. The applicant does not provide for any visitor parking pursuant to Section 11.3.2a.D(12) of the Lowell Zoning Ordinance.

4. The transportation demand management plan does not meet the minimum requirements pursuant to Section 7.8.3(d) of the Lowell Zoning Ordinance.

5. The proposed project's size, density, and mass does not comply or meet [sic] neighborhood character pursuant to Section 11.3.2 of the Lowell Zoning Ordinance.

This Court ruled in its August 2018 order that Reasons ##1 and 5 failed the Wendy's test. The Court also ruled that Reasons ## 1, 4 and 5 misstated the requirements of the Ordinance. TUL now contends as a matter of fact and law that its proposal did provide "supplemental parking" as the Ordinance required (contrary to Reason #2), and that the same parking doubled as visitor parking (contrary to Reason #3).

Here are the undisputed facts as they relate to parking. TUL's revised application called for hosting 465 beds in its dormitory. Section 6.1.4.1.i.3 of the Ordinance requires one off-street parking space for every two beds, and thus TUL needed to provide at least 233 off-street parking spaces. The Ordinance's chief provision regarding off-street parking is § 6.1.6, the pertinent parts of which appear below with their original emphasis. Pay particular attention to the term "parking facilities":

Location and Layout of Parking Facilities. Unless otherwise allowed herein, required off-street parking facilities shall be provided on the same lot as the principal use they are required to serve, subject to the following exceptions:

1. In the case of new construction of a multifamily residential building in a Commercial or Mixed-Use District . . . , the required parking facilities may be provided on lots not more than four hundred (400) feet away from the building to be served.

2. In the HRC Districts, the required off-street parking may be provided on the same lot as the principal use it is required to serve. However, any other lots or lots within the same HRC District which is or are more than one thousand five hundred (1,500) feet away from the entrance of the building to be served, [sic] may be used to meet the requirement for off-street parking.

3. In Industrial Districts and in the case of institutional uses in any district, the required parking facilities may be provided on lots not more than one thousand (1,000) feet away from the building to be served.

4. In the case of a dormitory of a nonprofit educational institution the required parking facilities may be provided on lots not more than one thousand five hundred (1,500) feet away, measured along a traveled way, from the dormitory to be served.

5. In the UMU, TMU, INST and NB districts . . . , all parking requirements may be met by leasing spaces in publicly-owned off-street parking facilities located within one thousand five hundred (1,500) feet of an entrance to the use.

6. In the UMU and UMF districts, non-residential parking requirements are reduced by fifty percent (50%) if a publicly-owned off-street parking facility is located within one thousand five hundred (1,500) feet of an entrance to the use. In the UMU and UMF districts, residential parking requirements may be reduced by as much as fifty percent (50%) if a publicly-owned off-street parking facility is located within one thousand five hundred (1,500) feet of an entrance to the use by special permit if the Planning Board finds that said public parking will accommodate the parking demands of the proposed project.

7. In the TMU, INST and NB districts, non-residential parking requirements are reduced by fifty percent (50%) if a publicly-owned off- street parking facility is located within four hundred (400) feet of an entrance to the use. In the TMU, INST and NB districts, residential parking requirements may be reduced by as much as fifty percent (50%) if a publicly-owned off-street parking facility is located within four hundred (400) feet of an entrance to the use by special permit if the Planning Board finds that said public parking will accommodate the parking demands of the proposed project.

8. All non-residential uses in the DMU district . . . are exempt from the listed parking requirements if a publicly-owned off-street parking facility is located within one thousand five hundred (1,500) feet of an entrance to the use. . . .

All privately-owned off-site parking facilities shall be under the same ownership or be leased to the same ownership as the building or buildings which they serve. Where a certificate of occupancy has been issued conditional to the maintenance of off-site parking facilities, such certificate shall lapse in the event of a sale or conveyance of the land used for such parking facilities for the required parking, or if said land is otherwise no longer available for such use. . . .

This Decision will have more to say about "parking facilities" in a moment. It's undisputed, however, that TUL proposed to provide at the site of its dorm only 188 of the required 233 off-street parking spaces. TUL found the other 45 spaces (actually, 50) at the George Ayotte Parking Garage. It's undisputed that the Ayotte Garage is a "publicly-owned off-street parking facility" as that term appears within § 6.1.6 of the Ordinance. It's also undisputed that the "entrance" of TUL's proposed dormitory that's nearest to the Ayotte Garage is the dorm's easterly stair tower. But here's the crux of the dispute over parking: while the stair-tower entrance is 1,498 feet to the lot on which the Ayotte Garage lies, one has to walk much farther (much more than 1,500 feet) to hit one of the Ayotte Garage's walls. According to § 6.1.6(5), in order to substitute leased spaces in a public garage for one's off-street parking requirements, the "parking facility" needs to be within 1,500 feet of an entrance to the use with which the parking's associated. (Section 6.1.6(5) applies here, rather than § 6.1.6(4), because TUL's dorm won't be owned by "a nonprofit educational institution," as § 6.1.6(4) appears to require.)

Does § 6.1.6(5)'s term, "parking facility," include the land on which the Ayotte Garage sits? The Ordinance doesn't define "parking facility." When a zoning ordinance doesn't define a term, the court must give that term its plain meaning when read in the context of the entire ordinance. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Shirley Wayside Ltd. P'ship v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012). The plain meaning of the term "parking facility," standing alone, doesn't resolve the dispute. The American Heritage Dictionary of the English Language (1976) defines "facility" in this context as "the means used to facilitate an action or process." That could mean the Garage itself, or the lot on which the Garage sits. The same ambiguity appears throughout Article II of the Ordinance, its chief source of defined terms. Article II defines numerous "facilities," but the term "facility" isn't used consistently. The definitions of five "facilities" ("adult day care facility," "assisted living facility," "child care facility," "municipal facility," and "narcotic detoxification and/or maintenance facility") describe the term by reference to services provided from a place, without reference to particular buildings or structures. By contrast, the definitions of nine other "facilities" ("building-mounted wind energy facility," "commercial recreational facility," "large wind energy facility," "public service facility," "recycling facilities," "self-storage facility," "small wind energy facility," "telecommunications facility," and "wind energy facility") describe the term by reference to particular structures or equipment.

That's not to say that Article II isn't useful. It defines an important term, "parking garage or parking area." Such places can be "[a] building, structure, part of a building or structure, lot or part of a lot . . . ." (Emphasis added.) TUL argues that the "parking garage or parking area" definition shows that "parking facilities" must include the "lot or part of a lot." But the drafters of § 6.1.6 didn't use "parking garage" or "parking area" in § 6.1.6. They used a different term, "parking facilities." The Ordinance also doesn't tie "parking facilities" to "parking garages" or "parking areas." Absent some sort of signal within the Ordinance that its drafters meant to give the term "parking facilities" the same meaning as "parking garage or parking area," the Court must treat "parking facilities" as different from "parking garage or parking area." Otherwise, "parking facilities" becomes superfluous. See Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 , 154 (1981).

The Court thus turns to the context of the term "parking facilities" and its various appearances in § 6.1.6. That context suggests that "parking facilities" are distinct from the "lot" on which the "facilities" sit:

* The beginning of § 6.1.6 and subsections 6.1.6(1)-(4) use "parking facilities" separately from the word "lot," and suggest that the former always is placed on the latter.

* The end of § 6.1.6 states the distinction even more crisply: "Where a certificate of occupancy has been issued conditional to the maintenance of off-site parking facilities, such certificate . . . shall lapse in the event of a sale or conveyance of the land used for such parking facilities for the required parking, or if said land is otherwise no longer available for such use . . . ." (Emphases added.)

* While all eight subsections of § 6.1.6 require a measurement, and while all eight measurements begin from the same place -- "an entrance to the use" -- in subsections (1)-(4) the measurement ends at a point expressly described as a "lot." By contrast, in subsections (5)-(8), the measurement ends not at a "lot," but at a "parking facility."

The context of every use of the term "parking facility" in § 6.1.6, coupled with the omission from § 6.1.6 of the defined terms "parking garage" and "parking area," suggests that the Board's application of § 6.1.6(5) in this case–measuring the distance to the building comprising the Ayotte Garage, and not merely the edge of the parcel on which the Garage is located – was correct. Even if the question were closer, as long as the Board's interpretation of § 6.1.6(5) is reasonable and not manifestly incorrect, the Court must give that interpretation deference. See Shirley Wayside, 461 Mass. at 475. (In response to TUL's motion for summary judgment, the Board offered an affidavit from Ms. McCall in which she described four decisions in which the Board purportedly interpreted and applied § 6.1.6(5) in the manner it did in this case. TUL moved to strike those decisions, and the Court granted that motion. TUL didn't move to strike, however, McCall's testimony that the Board's application of § 6.1.6(5) is consistent with "established policy" of the Board.)

Because no part of the structure that houses the Ayotte Garage is within 1500 feet of the closest entrance to TUL's dormitory, § 6.1.6(5) doesn't allow TUL to rely on 50 spaces in the Garage in order to meet TUL's off-street parking requirements. The Board also correctly concluded that it couldn't grant relief to TUL under § 6.1.6(6) (not that TUL requested such relief) because it too requires that the "parking facility" be within 1500 feet.

TUL conceded at oral argument that if the Court upheld Reason #2 (concerning off-street parking), the Court also would have to uphold the Board's Reason #3 (concerning visitor parking). The Court thus DENIES TUL's motion for summary judgment as to the Board's Reasons ##2-3 for denying TUL a special permit. Since the Court must uphold a local board's denial of a special permit even if there's only a single permissible reason for the denial, see, for example, Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 75-77 (2003), the Court intends to enter judgment against TUL, and in favor of the Board, on TUL's appeal of the Board's special-permit denial unless TUL shows cause by December 31, 2018 as to why judgment should not so enter. The Court also ORDERS TUL to show cause by the same date as to why this Court should not enter judgment against TUL, and in favor of the Board, on TUL's appeal of the Board's denial of site-plan approval. Any decision by TUL to allow judgment to enter against it for the reasons set forth in this Decision shall be without prejudice to TUL's right to appeal this Decision.

SO ORDERED.