BRAN CHILTON, EDUART LELA, PATRICK SMITHEDAJKUL, and PETER NIKOLAIDIS v. CITY OF MEDFORD ZONING BOARD OF APPEALS and SCOTT CARMAN, YVETTE VELEZ, KARLA CHAFFEE, and JAMES HALLORAN, as they are Members of the City of Medford Zoning Board of Appeals, FARHAD S. TOROSSIAN, and 252 MAIN STREET, LLC

After a remand, Farhad S. Torossian a/k/a Fred Torossian (Torossian) and 252 Main Street, LLC (Main Street) obtained a variance, a special permit, and a finding under G.L. c. 40A, §6, and the Medford Zoning Ordinance from the City of Medford Zoning Board of Appeals (ZBA), all to replace the four-unit building on their property at 252 Main Street, Medford, Massachusetts 02155 (subject property) with an eight-unit residential building. The plaintiffs Brian Chilton, Eduart Lela, Patrick Smithedajkul, and Peter Nikolaidis are abutting condominium owners (one is an abutter to an abutter) challenging the zoning relief granted by the ZBA. The parties have brought cross-motions for summary judgment on both standing and the merits. As abutters alleging harm protected by the c. 40A's and the Medford Zoning Ordinance's interest in protecting against density, the plaintiffs have, in effect, standing per se under the recent Appeals Court decision in Murchison v. Zoning Board of Appeals of Sherborn. Summary judgment will enter finding that the plaintiffs have standing. There remain, however, issues of fact as to the merits of the variance, special permit, and §6 finding that require denying the parties' cross-motions and going to trial.

Procedural History

The Complaint in this action was filed on October 31, 2017. On November 20, 2017, Main Street and Torossian filed their Motion to Dismiss for Failure to State a Claim and Memorandum in Support of Motion to Dismiss for Failure to State a Claim. The plaintiffs filed Plaintiffs' Opposition to Defendant's Motion to Dismiss, Plaintiffs' Motion for Summary Judgment for Remand, Memorandum in Support of Plaintiffs' Motion for Summary Judgment for Remand, and Plaintiffs' Statement of Facts on December 19, 2017. On January 19, 2018, Main Street and Torossian filed their Motion for Summary Judgment, Memorandum of Law in Support of Summary Judgment, Statement of Facts, and Appendix (App. 1). The court heard the Motion to Dismiss and Motion for Summary Judgement for Remand on January 26, 2018. The court issued a Memorandum and Order on Defendants' Motion to Dismiss and Cross-Motions for Summary Judgment on February 20, 2018, allowing in part and denying in part Plaintiffs' Motion for Summary Judgment for Remand denying Defendants' Motion to Dismiss, denying Defendants' Motion for Summary Judgment, and remanding the matter to the ZBA (remand order).

On September 26, 2018, the plaintiffs filed a Complaint after Remand Petition. On March 1, 2019, plaintiffs Kenan Niu and Balram Chamaria were dismissed as parties without prejudice. On April 1, 2019, Main Street and Torossian filed their Motion for Summary Judgment After Remand and a Memorandum of Law in Support of Motion for Summary Judgment After Remand (Motion for Summary Judgment), in addition to a Statement of Facts (Defs.' SOF), and Appendix (App. 2). On May 7, 2019, plaintiffs filed their Opposition to Defendants' Motion for Summary Judgment, a Cross-Motion for Summary Judgment, a response to Defendants' Statement of Facts and a Statement of Additional Facts (Pls.' SOF) and Appendix. On May 15, 2019, Main Street and Torossian filed their Response to Plaintiffs' Statement of Additional Facts for Cross-Motion for Summary Judgment (Defs.' Add. SOF), and their Opposition to Plaintiffs' Cross-Motion for Summary Judgment. The court heard the cross-motions for summary judgment on May 21, 2019, and took the motions under advisement. This Memorandum and Order Follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed:

1. Main Street is a Massachusetts limited liability company with a business address of 5 Morningside Lane, Lincoln, Massachusetts 01779. Defs.' SOF ¶ 1; Pls.' SOF ¶ 1.

2. Main Street is the record owner of the property at 252 Main Street, Medford, Massachusetts 02155 (subject property) by deed dated August 19, 2015, and recorded with the Middlesex South Registry of Deeds (registry) at Book 66007, Page 286. Defs.' SOF ¶ 2; Pls.' SOF ¶ 2.

3. Torossian is the sole manager of Main Street and was the named applicant for the variances from the ZBA. Defs.' SOF ¶ 3; Pls.' SOF ¶ 3.

4. Plaintiff Brian Chilton (Chilton) is the owner of 17 Hancock Avenue, Medford, Massachusetts 02155 (the Chilton property). The Chilton property abuts a property abutting the subject property and is within three hundred feet of the subject property. Chilton does not reside at the Chilton property, and has a mailing address of 15 Ledgewood Road, Winchester, Massachusetts 01890. Defs.' SOF ¶ 4; Pls.' SOF ¶ 4.

5. Plaintiff Eduart Lela (Lela) is the owner of Unit 5, a condominium unit, at 244 Main Street, Medford, Massachusetts 02155 (abutting property). Lela is a direct abutter of the subject property. Lela resides at the abutting property. Defs.' SOF ¶ 5; Pls.' SOF ¶ 5.

6. Plaintiff Patrick Smithedajkul (Smithedajkul) is the owner of Unit 4, a condominium unit at the abutting property. Smithedajkul is an abutter to the subject property. Smithedajkul resides at the abutting property. Defs.' SOF ¶ 6; Pls.' SOF ¶ 6.

7. Plaintiff Peter Nikolaidis (Nikolaidis) is the owner of Unit 1, a condominium unit at the abutting property. Nikolaidis is an abutter to the subject property. Nikolaidis resides at the abutting property. Defs.' SOF ¶ 7; Pls.' SOF ¶ 7. Chilton, Lela, Smithedajkul, and Nikolaidis are referred to together as the "Abutters."

8. The ZBA is a duly organized and appointed municipal agency of the City of Medford, with its principal office in Town Hall, 85 George P. Hassett Drive, Medford, Massachusetts 02155. Defs.' SOF ¶ 8; Pls.' SOF ¶ 8.

9. The subject property is an approximately 18,895 square-foot parcel of land situated in the City's Apartment-1 (Apt-1) and General Residence (GR) zoning districts, as established by the Medford Zoning Ordinance (ordinance) and accompanying Zoning Map. Defs.' SOF ¶ 15; Pls.' SOF ¶ 15.

10. Currently a two and one half (2 1/2) story residential structure with four (4) units (the current structure) sits on the subject property. Defs.' SOF ¶ 17; Pls.' SOF ¶ 17.

11. Main Street and Torossian made no efforts to determine the feasibility of rebuilding the current structure at 252 Main Street with the same height, square feet and location of the existing building on this property, in lieu of the proposed building that they have applied for with the ZBA. Defs.' Add. SOF ¶ 78; Pls.' SOF ¶ 78.

12. Instead, Main Street and Torossian seek to replace the current structure with a three (3) story, eight (8) unit, thirty-five (35) foot residential building with parking (proposed project). As part of the proposed project, they submitted a petition for two variances and an application for site plan approval to the ZBA (the original petition). As part of the original petition, they submitted a site development plan which included plans of current conditions as well as plans for the proposed project. Defs.' SOF ¶ 18; Pls.' SOF ¶ 18.

13. The ordinance defines lot width as "the unbroken horizontal distance on a lot measured perpendicular to and at all points on the required depth." Defs.' SOF ¶ 33; Pls.' SOF ¶ 33; Ordinance App. 2, Ex. 4.

14. The lot width of the subject property is 99.80 feet, in a district that requires 100 feet. Defs.' SOF ¶ 20; Pls.' SOF ¶ 20.

15. In the original petition, Main Street and Torossian requested a variance for relief from the lot width dimensional requirements. Defs.' SOF ¶ 19; Pls.' SOF ¶ 19.

16. Section 94-191(c)(6) of the ordinance prohibits any part of any entrance or exit drives for parking areas to be located closer than ten (10) feet from a side lot line. Defs.' SOF ¶ 23; Pls.' SOF ¶ 23; Ordinance App. 2, Ex. 4.

17. In the original petition, Main Street and Torossian also requested a variance for a side setback requirement to install an entrance drive contiguous with a side lot line. Defs.' SOF ¶ 19; Pls.' SOF ¶ 19.

18. With a side setback of zero (0), Main Street's proposed driveway will be closer to the abutting property than the existing driveway. Defs.' Add. SOF ¶ 68; Pls.' SOF ¶ 68.

19. Main Street's proposed driveway will have a greater usage than the existing driveway on the subject property, due to the increased number of residents in the proposed project. Defs.' Add. SOF ¶ 69; Pls.' SOF ¶ 69.

20. The ZBA issued a decision on the original petition on October 12, 2017 (original decision). App. 2, Ex. 1.

21. In the original decision, the ZBA noted the current multifamily structure does not meet the lot width requirement under ordinance §94-171(4) and therefore is non-conforming in terms of lot width. Defs.' SOF ¶ 35; Pls.' SOF ¶ 35; App. 2, Ex. 1.

22. The ZBA determined, in its original decision, that the variance request for lot width relief was not required, in part, because "it is existing and is not being altered in any respect" and it is "de minimis." Defs.' SOF ¶ 21; Pls.' SOF ¶ 21.

23. The ZBA found in the original decision that relief from §94-191(c)(6) was permissible to allow a side setback of zero (0) for the purpose of placement of a driveway in a district that requires ten (10) feet under G.L. c. 40A, §10. Defs.' SOF ¶ 22; Pls.' SOF ¶ 22; App. 2, Ex. 1.

24. In the original decision, the ZBA reasoned, in part, that the side yard setback violation proposed by the proposed project would not exist but for the Medford Fire Department's requirement that a two-way travel driveway feature 24' in width, while one-way travel be a minimum of 20' in width. Defs.' SOF ¶ 24; Pls.' SOF ¶ 24; App. 2, Ex. 1.

25. The ZBA also opined that the lot meets the requirements of G.L. 40A, §10, because "the lot is also somewhat unusual in that it is not particularly wide when contrasted to its depth" and "moving the structure to the rear of the Property in order to center the driveway . . . would necessitate a use variance because the proposed structure would then be located in the GR zone where multiple dwellings are not allowed." Defs.' SOF ¶ 25; Pls.' SOF ¶ 25; App. 2, Ex. 1.

26. The ZBA reasoned that without the variance, Main Street and Torossian would go through substantial hardship by being required to configure and build a "reasonably sized (and perhaps modest) structure on an unusually large lot on Main Street." Defs.' SOF ¶ 29; Pls.' SOF¶ 29; App. 2, Ex. 1.

27. The ZBA also stated that it did not identify any substantial detriment to the public good of the proposed project. Defs.' SOF ¶ 30; Pls.' SOF ¶ 30; App. 2, Ex. 1.

28. There is a paved parking area in the rear of the current structure which has been used for parking and will be continued to be used for parking under the proposed project. Defs.' SOF ¶ 36; Pls.' SOF ¶ 36.

29. The proposed parking area and the existing parking is, at least, partially located in the GR zoning district and provides 17 parking spaces accessory to the current structure within 200 feet. Defs.' SOF ¶ 37, 40; Pls.' SOF ¶ 37, 40.

30. No variance was needed for parking, but per ordinance §94-148(d)(51)(b), a parking area in the Apt-1 zoning district within 200 feet of a conforming principal use requires a special permit. Defs.' SOF ¶ 37-38; Pls.' SOF ¶ 37-38; Ordinance App. 2, Ex. 4.

31. Under the February 20, 2018, remand order, the court ordered the case remanded back to the ZBA to make findings under G.L. c. 40A, §6, and §94-241 of the ordinance with respect to the lot width and to consider a special permit or findings with respect to the parking area. Defs.' SOF ¶ 42; Pls.' SOF ¶ 42; App. 2, Ex. 2.

32. The ZBA held a remand hearing, and issued another decision on September 7, 2018, favorable to the Defendants (remand decision). The ZBA issued a special permit with regard to the parking pursuant to § 94-148(d)(51)(b) of the ordinance, and found that, with respect to the shortfall in lot width, the proposed project would not be substantially more detrimental to the neighborhood than the current structure. Defs.' SOF ¶ 43; Pls.' SOF ¶ 43; App. 2, Ex. 3.

33. The Abutters appealed the remand decision to this court. Defs.' SOF ¶ 44; Pls.' SOF¶ 44.

34. The purpose of the ordinance is "[t]o promote the health, safety, morals, convenience and general welfare of its inhabitants, to lessen the danger from fire, congestion, and confusion, and to improve and beautify the city under and pursuant to the provisions of M.G.L.A. c. 40A and all amendments thereto the use, construction, and alteration of buildings or structures and the use of premises in said city are hereby restricted and regulated as hereinafter provided." Defs.' Add. SOF ¶ 64; Pls.' SOF ¶ 64; Ordinance App. 2, Ex. 4.

35. Abutters Lela, Nikolaidis, and Smithedajkul have raised concerns about privacy, congestion, density, and increased noise from the proposed project. Defs.' Add. SOF ¶ 70; Pls.' SOF ¶ 70.

36. Abutter Chilton has raised concerns about the increased noise that will result from the proposed project. Defs.' Add. SOF ¶ 71; Pls.' SOF ¶ 71.

Discussion

Main Street and Torossian's Motion for Summary Judgment challenges the Abutters' standing to maintain their appeal of the original and remand decisions, and asserts that the ZBA applied the proper standards under the applicable sections of G.L. c. 40A and under the ordinance in issuing its decisions. The Plaintiffs' Opposition to Defendants' Motion for Summary Judgment and Cross-Motion for Summary Judgment asserts that the Abutters have standing to challenge the decisions of the ZBA, challenges whether the ZBA applied the proper standard under G.L. c. 40A, §6, in determining whether the proposed structure would not be substantially more detrimental than the existing structure to the neighborhood, challenges whether the ZBA exceeded its authority in concluding that the proposed structure would not be substantially more detrimental than the existing structure to the neighborhood, challenges whether Main Street and Torossian have satisfied the requirements for a variance under G.L. c. 40A, §10, and whether the ZBA exceeded its authority in granting the variance, and challenges the ZBA's issuance of the special permit for parking and whether the ZBA exceeded its authority in granting the special permit.

I. Standing

In order to have standing to challenge the original and remand decisions, the Abutters must be "person[s] aggrieved" by the decisions. G.L. c. 40A, §17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 701 (1998). Persons entitled to notice under G.L. c. 40A, §11, including abutters to the subject property and abutters to abutters within 300 feet of the subject property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of §17. G.L. c. 40A, §11; 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). Abutters Lela, Nikolaidis, and Smithedajkul are direct abutters to the subject property and are therefore entitled to the rebuttable presumption that they are aggrieved. Abutter Chilton is an abutter to an abutter within 300 feet of the subject property and is therefore entitled to the rebuttable presumption that he is aggrieved.

In the zoning context, a defendant can rebut the presumption of standing at summary judgment in two ways. First, the defendant can show "that, as a matter of law, the claims of aggrievement raised by [a plaintiff], either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. "Second, where [a plaintiff has] alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." Id. at 703. "[T]he defendant may present affidavits of experts establishing that [a plaintiff's] allegations of harm are unfounded or de minimis." Id. at 702, citing Kenner, 459 Mass at 119–120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 23–24 (2006). As part of that showing, a defendant need not present affirmative evidence that refutes a plaintiff's basis for standing; "it is enough that the moving party 'demonstrate [ ] by reference to material described in Mass. R. Civ. P. 56(c), [ 365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving' a legally cognizable injury." Id. at 703, quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "Once the presumption of standing has been rebutted successfully, the plaintiff [has] the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the plaintiff has standing and rendering summary judgment inappropriate." 81 Spooner Road, LLC, 461 Mass. at 703 n.15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519–521 (2011).

The Abutters raise as grounds for aggrievement privacy, congestion, density, and increased noise. Main Street and Torossian aim to rebut the presumption of standing by submitting expert evidence that no negative impact will befall anyone with regard to traffic as a result of the project. Additionally, they assert that the Abutters reside in buildings similar to the proposed project, and that the buildings the Abutters live in create more density than the proposed project. Finally, Main Street and Torossian submit a landscape plan showing the installation of a six-foot privacy fence bordering the private driveway by the lot line, arguing that the privacy fence addresses the Abutters' privacy concerns about the location of the proposed driveway.

Assuming without deciding that Main Street and Torossian have rebutted the Abutters' presumption of standing, the question of the Abutters' standing is fully controlled by the Appeals Court's recent holding in Murchison v. Zoning Board of Appeals of Sherborn, No. 18-P-1092, 2019 WL 4747046 (Mass. App. Ct. Sep. 30, 2019), further appellate review sought, No. FAR- 27128. [Note 1] In Murchison, "the Sherborn zoning enforcement office (ZEO) issued a foundation permit for a single-family residence on the defendant's property." Id. at *1. Sherborn's bylaws require a minimum lot width of 250 feet, but the defendant's property measured 209.56 feet and 192.42 feet at the front setback line and building line, respectively. Id. The Land Court dismissed the case for lack of standing, concluding that there was no particularized harm alleged. Id. at *4.

The Appeals Court reversed the judgment of the Land Court and applied the standard analysis required to prove standing, which requires any plaintiff claiming aggrievement to assert harm to a right or interest protected by G. L. c. 40A. Id. at *3. It is undisputed that "[m]any cases hold that the prevention of overcrowding (sometimes referred to as 'density') is an interest protected by the Zoning Act." Id. The issue in Murchison was whether or not the plaintiffs would be harmed by the defendants building on a lot that did not meet the lot width required by the bylaws. Id. at *1. The Appeals Court held that because the plaintiffs are abutters to the proposed project and alleged that they had density concerns, allegations of aggrievement were substantiated and the plaintiffs had standing. Id. at *2-3. In the court's view, "the placement of the house on the lot across the street from the plaintiffs . . . demonstrates particularized harm to the plaintiffs," and the plaintiffs "did not need an expert" to demonstrate the particularized harm. Id. at *4 n.5. No further analysis was conducted to demonstrate whether the plaintiffs would suffer specific particularized harm from the proposed house. Id. at *4.

Here, similar to the plaintiffs in Murchison, all of the Abutters are abutters or abutters to abutters, and assert they are aggrieved because the proposed structure will increase the density of the proposed project, which they claim is "overcapacity." [Note 2] Applying the holding in Murchison, since all of the Abutters allege harm from an increase in density and they are abutters or abutters to abutters of the proposed project, they have established that they will suffer harm to an interest protected by G. L. c. 40A and the ordinance (namely the interest in regulating density), and therefore are persons aggrieved by the remand decision. They are entitled to summary judgment in their favor, declaring they have standing to bring this appeal. [Note 3]

II. Proper Standard Under G.L. c. 40A, §6

The Abutters challenge the original and remand decisions pursuant to G.L. c. 40A, §17. An appeal of a zoning board of appeals decision is de novo; that is, in an action under §17, the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, §17. Section 17 review of a local board's decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, §17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings"). After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court must give deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In the remand order, the court held that the subject property's shortfall in lot width -- having 99.8 feet of width in a zone requiring 100 feet -- rendered the current structure lawfully nonconforming, and instructed the ZBA to consider whether the proposed project would not be substantially more detrimental to the neighborhood under G.L. c. 40A, § 6, and § 94 -- 242 of the ordinance. The ZBA made such a finding in the remand decision. The Abutters argue that the ZBA improperly applied this standard. Because the ZBA's findings focus on the existing nonconforming structure and the proposed structure, the Abutters argue the ZBA failed to make any findings concerning how the proposed structure will affect the neighborhood. The ZBA's specific findings, even if they do not always explicitly mention the neighborhood, address the proposal's effects on the neighborhood.

The remand decision states the correct standard before listing its findings. The ZBA's finding that a single or two family structure, which would avoid the shortage in lot width, would be "grossly out of character for the neighborhood" shows consideration of the effects on the neighborhood of the proposed structure's use. Even though it does not explicitly mention "the neighborhood," the ZBA's findings that the proposed structure is "modestly sized . . . , is conforming in almost every respect and will mark a substantial improvement from the strange structure on the Property which is in disrepair" go towards the proposed structure's effect on the neighborhood. Even though it does not explicitly mention the proposed structure, the ZBA's finding concerning safety hazards caused by "the de minimis shortage in lot width" addresses the proposed structure's effect on the neighborhood. The Abutters' arguments amount to objections as to how the ZBA framed its findings.

No genuine issue of material fact exists as to whether the ZBA applied the proper standard in determining that the proposed structure would not be substantially more detrimental than the existing structure to the neighborhood. The ZBA stated the correct standard and made findings relevant to that standard. See Wojck v. Lovett, 24 LCR 343 , 346 (2016) ("[T]here is nothing in G.L. c. 40A requiring that [Section 6 findings] . . . be subject to the requirement for detailed factual findings that must be made in conjunction with the granting of a special permit or variance."). [Note 4]

The Abutters then argue that the ZBA exceeded its authority in concluding that the proposed structure would not be substantially more detrimental than the existing structure to the neighborhood. The preexisting nonconformity is a 0.2-foot, or less than three-inch, shortage in the width of the locus. The proposed structure will replace the existing structure's four units with eight units in a building that is one-half of a story taller. The Abutters assert that the proposed structure will have visual, aesthetic, noise, and privacy effects on the neighborhood. In response, Main Street and Torossian note the ZBA's findings which might support its decision. However, on §17 review, this court must find the facts de novo. See Britton, 59 Mass. App. Ct. at 72. A genuine issue of material fact therefore exists with regard to whether the ZBA's decision on the proposed structure's effect on the neighborhood exceeded the ZBA's authority. Although this court must view the ZBA's decision with deference, the Abutters have alleged that the proposed structure will have visual, aesthetic, noise, and privacy effects on the neighborhood. Without drawing inferences in the Main Street and Torossian's favor, summary judgment on this issue is inappropriate at this time.

III. Proper Standard Under G.L. c. 40A, §10

The Abutters challenge whether Main Street and Torossian have satisfied the requirements for a variance under G.L. c. 40A, § 10. To grant the setback variance, the ZBA was obligated to find that:

owing to circumstances relating to the soil conditions, shape, or topography of [the Property] and especially affecting [the Property] but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the [Ordinance] would involve substantial hardship, financial or otherwise, to [Torossian and Main Street], and . . . desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of [the Ordinance].

G.L. c. 40A, §10. The standard is conjunctive; all three of these conditions must be met to issue a variance. Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460 , 462 (1969); Spaulding v. Board of Appeals of Leicester, 334 Mass. 688 , 692 (1956); Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 , 142 (2002). The Abutters first argue that the ZBA did not make the findings required under G.L. c. 40A, §10. That argument was addressed in the remand order. The court found that in the original decision the ZBA had made the necessary findings for a variance, and will not revisit the issue here.

In the original decision, the ZBA specifically found that:

due to the shape of the current structure and Property and the additional non-zoning requirements as to the width of the driveway, a literal enforcement of the requirements with respect to width and §94-191(c)(6) would cause the petitioner substantial hardship. The hardship that would befall the petitioner is that he would be deprived of configuring and building a reasonably sized (and perhaps modest) structure on an unusually large lot on Main Street. The Board did not identify any substantial detriment to the public good, in part because the specific configuration of the driveway proposed by the petitioner is ubiquitous on Main Street. Moreover, the Board did not find that the intent or purpose of §94- 191(c)(6) will be nullified or substantially derogated by the issuance of a variance . . .

App. 2, Ex. 1.

The Abutters then challenge whether the ZBA exceeded its authority in granting the variance that completely eliminates the setback requirement that serves as a buffer. The Abutters assert that there is nothing unique about the subject property, that it is not unusually large for its zoning district, nor does it have any unique lot lines or dimensions in comparison to the adjacent properties. The Abutters contend that desire to construct a larger property than the one already situated at 252 Main Street is not a substantial hardship supporting the issuance of a variance.

The lot shape of the subject property is undisputed. It is roughly a rectangle, longer than it is wider and somewhat wider in the front than in the rear. App. 2, Ex. 1. Its shape may or may not be different than that of neighboring lots, and may or may not cause Main Street and Torossian substantial harm if the setback is enforced. To conclude that the subject property's lot shape is not unique and does not cause hardship on this record would require the drawing of inferences in the Abutters' favor, which cannot be done on a motion for summary judgment. Willitts, 411 Mass. at 203. The Abutters' summary judgment motion with respect to the variance is denied.

IV. Special Permit for Parking

The Abutters challenge whether the ZBA made sufficiently detailed findings in issuing a special permit for the parking area. To grant the special permit for parking, the ZBA was required to find that: the subject area is "an appropriate location" for parking; allowing parking to continue in the subject area would not "adversely affect the neighborhood;" parking would not be a "nuisance or serious hazard to vehicles or pedestrians;" and the petitioner has "[a]dequate and appropriate facilities…for the proper operation" of parking. Ordinance §94-81(f), App. 2, Ex. 4. In the remand decision's findings, the ZBA relied on the absence of evidence showing the factors are not satisfied as evidence that the factors are satisfied. The Abutters point out that the ZBA was required to find that "in its judgment all of the following [criteria] are complied with," and the ZBA did not expressly determine whether the requirements are satisfied under §94- 81(f).

The absence of contrary evidence is not enough to satisfy the special permit requirements. The Abutters assert that the special permit for parking area required the ZBA to consider whether "[t]he use as developed will not adversely affect the neighborhood." Ordinance §94-81(f)(2), App. 2, Ex. 4. Without drawing inferences in the movant's favor, a genuine issue of material fact exists as to whether a reasonable ZBA could have reached the conclusion of this ZBA. [Note 5] Although this court must view the ZBA's decision with deference, the Abutters have alleged that the ZBA did not make the proposed adequate findings under the ordinance. Without drawing inferences in Main Street and Torossian's favor, this court cannot decide whether this ZBA decision exceeded the ZBA's authority.

Conclusion

For the foregoing reasons, Main Street and Torossian's Motion for Summary Judgment After Remand challenging the Abutters' standing to maintain its appeal of the first and remand decisions is DENIED, and the Abutters' cross-motion for summary judgment regarding standing is ALLOWED. The remainder of the motions for summary judgment are DENIED. A pretrial conference is set down for December 9, 2019, at 10:30 a.m.