MISC 18-000084

December 30, 2019

Middlesex, ss.



=This case is an appeal pursuant to G. L. c. 40A, §17 of an April 19, 2017 decision ("Decision") issued by the Planning Board ("Board") of the Town of Tewksbury ("Tewksbury" or "the Town"), whose members are defendants in their official capacities. In the challenged Decision, the Board granted various special permits under Sections 9300, 9400, 9500, and 8680 of the Tewksbury Zoning Bylaw ("Bylaw" or "Zoning Bylaw") to defendant Tewksbury Hospitality, LLC ("Tewksbury Hospitality" or "private defendant") permitting the construction of a 132-room hotel ("Hotel" or Project") at the intersection of North Street and International Place in Tewksbury. Plaintiff Marilyn McDonagh owns and resides in a single-family home located across the street from the site of the proposed hotel, and in her appeal claims that the Board's Decision was arbitrary, capricious, in excess of its authority, and so must be annulled. The issue now before the court is plaintiff's standing as a "person aggrieved" under G. L. c. 40A, §§ 8 and 17 to challenge the Decision.


On May 8, 2017, plaintiff timely filed a complaint in the Superior Court, Middlesex County, appealing the Decision pursuant to G. L. c. 40A, §17, and also timely filed a copy of its complaint with the town clerk as required by the statute. Plaintiff's complaint identified four sources of aggrievement which she claimed stemmed from the proposed hotel project: excessive light, excessive noise, increased traffic, and loss of privacy. On February 2, 2018, this case was transferred from the Superior Court to this court's Permit Session. On July 27, 2018, the private defendant filed a motion for summary judgment in which it challenged the standing of plaintiff to bring her appeal, arguing that she is not a person aggrieved as required by G. L. c. 40A, §§ 8, 17. Plaintiff filed an opposition on September 14, 2018, and a reply was filed on October 17, 2018. The court held a hearing on the motion for summary judgment on November 2, 2018.

Following argument, the court (Piper, J.) granted defendant's motion in part. The court found that the four expert affidavits submitted by the private defendant rebutted plaintiff's presumption of standing as to each separate harm claimed by plaintiff. The burden then having shifted to plaintiff to put forth credible evidence that she is a person aggrieved, the court found that plaintiff, faced with contrary evidence put in by the defendant, had failed to present facts and credible evidence demonstrating actual aggrievement related to the claimed harms of light, noise, and decreased privacy.

However, the court noted that plaintiff indeed had submitted an expert affidavit on the traffic impacts of the project. That evidence, the court ruled, was sufficient to raise a triable question of fact as to plaintiff's aggrievement (or not) on the grounds of adverse traffic effects the hotel might generate. Given the court's inability to weigh the force and persuasiveness of competing affidavits on summary judgment, the court determined that a trial would be necessary to decide, on all the evidence properly weighed, whether this single ground of aggrievement provided plaintiff with standing to challenge the merits of the Decision.

On December 7, 2018, the court held a hearing at which the court allowed the private defendant's motion to bifurcate proceedings and hold a preliminary evidentiary hearing solely concerning whether plaintiff is aggrieved on the basis of increased traffic which would result from the hotel project. A pre-trial conference was held on January 15, 2019, and the court took a view of the locus on January 31, 2019. A trial on this limited issue was held on February 6, 2019, at which plaintiff, plaintiff's traffic expert Stephen Schneider, the private defendants' traffic expert Kenneth Cram, and the Board's traffic expert Samuel W. Gregorio gave testimony. Closing arguments were heard by the court on June 10, 2019. The court subsequently received the transcript of those closing arguments, and the court took the matter under advisement.


Based on the submissions of the parties, their admissions, the relevant uncontested facts, the testimony and other evidence introduced at the trial I held, and the inferences I draw from the foregoing, I find and rule as follows:

1. Defendant David Ward ("Ward"), as trustee of the North Street Realty Trust, is the owner of the property located at 937 North Street, Tewksbury, Massachusetts ("defendant's property"). [Note 1]

2. The defendant's property is a 3.16 acre parcel bounded by North Street to the southwest, and by International Place to the northwest. North Street is perpendicular to and intersects with International Place. [Note 2]

3. Plaintiff owns and resides in a single family residence located at 922 North Street, Tewksbury, Massachusetts ("plaintiff's property"). Plaintiff's property is located directly across North Street from defendant's property. [Note 3]

4. Defendant's property is located in the Community Village Overlay District ("CVOD") established in the Tewksbury Zoning Bylaw. [Note 4]

5. In December of 2016, Tewksbury Hospitality filed an application with the Board seeking the issuance of special permits in connection with its plans to construct a Hilton Garden Inn Hotel on the defendant's property. The application requested the issuance of a special permit pursuant to Section 9300 of the Bylaw, a site plan special permit pursuant to Section 9400 of the Bylaw, a special use permit pursuant to Section 9500 of the Bylaw, and a CVOD special permit pursuant to Section 8680 of the Bylaw. [Note 5]

6. On March 20, 2017, after public hearing, the Board voted unanimously to issue all four requested special permits. [Note 6]

7. The proposed hotel, as permitted by the Decision, has 132 rooms and 144 parking spaces. Its design lacks a number of major features that typically are present in a full-service hotel, such as banquet halls, ballrooms, multiple meeting rooms, and full-service restaurant(s) open to the public. [Note 7] However, the hotel as designed would have one small meeting room and a limited restaurant (restricted to guests and their invitees, with a limited staff, and a limited menu); these features are not typically present in a business hotel. [Note 8] I find the proper characterization of the hotel to fall somewhere in between a full-service hotel and a business hotel, tending markedly towards the latter. [Note 9]

8. In connection with Tewksbury Hospitality's special permit application, Bayside Engineering, Inc. ("Bayside") prepared a Traffic Impact and Access Study ("TIAS") which forecasts the traffic impacts of the proposed hotel on the roadways in the vicinity of defendant's property. Kenneth Cram ("Cram"), the Director of Traffic Engineering at Bayside, testified at trial on behalf of the private defendants.

9. Stephen Schneider ("Schneider"), a traffic engineer with a principal place of business in Ronkonkoma, New York, testified on behalf of plaintiff. Schneider himself did not conduct any traffic counts. He accepted Bayside's data, as reported in the TIAS, concerning both existing traffic volumes and the projected traffic increases that will be attributable to the project. [Note 10] Schneider's report and testimony instead critiqued the methodology of Bayside's TIAS, and offered differing interpretations of the data with regard to the resulting impact on the plaintiff's property.

10. In preparing the TIAS, Bayside conducted daily traffic counts to establish existing average traffic conditions on North Street and International Place. [Note 11] Approximately 6,700 vehicles per day travel along International Place, with approximately 786 vehicles traveling during the weekday morning peak hour, and 657 vehicles traveling during the weekday evening peak hour. [Note 12] Approximately 8,400 vehicles per day travel along North Street, with approximately 827 traveling during the weekday morning peak hour, and 915 traveling during the weekday evening peak hour. [Note 13]

11. Automobiles queue on North Street in front of plaintiff's property during periods of dense traffic, such as during the weekday peak hour. [Note 14]

12. To develop the baseline traffic conditions which would exist in 2023 if the hotel were not to be built, Bayside applied a background growth rate of 1.0% per year to the existing traffic volumes. I credit that this growth rate, which was supplied by the Northern Middlesex Council of Governments, is appropriate, and find that Schneider's suggested 2-6% growth rate, which was derived from a single data point from 2013, is not. [Note 15]

13. I find that the proposed hotel itself will generate, as of 2023, at most a total of approximately 808 vehicle trips per day. It will generate, at most, approximately 70 trips during the weekday morning peak hour, and 80 trips during the weekday evening peak hour. [Note 16]

14. At most, approximately 10 of these trips will travel over North Street during the weekday morning peak hour, and approximately 12 will travel over North Street during the weekday evening peak hour. These figures respectively represent increases of .9% and 1.0% on North Street over the baseline conditions which will exist if the hotel is not built. This amounts to the addition of approximately one vehicle attributable to the hotel on North Street every five to six minutes during peak hours. [Note 17]

15. As those trips are split between the northbound and southbound lanes, only half - five to six vehicles per peak hour - will be added to the northbound lane that experiences queuing in front of plaintiff's house. [Note 18]

16. The proposed hotel will have two driveways: one on International Place, and one on North Street in close proximity to the Plaintiff's Property. [Note 19] In its Decision, the Board imposed a condition limiting the use of the defendant's North Street driveway to right-hand turns entering the site, and forbidding the use of that driveway to exit the site. [Note 20] I find that this will likely cause the hotel to generate less congestion on North Street than if the driveway was allowed to function as an unrestricted egress.

17. I find that the projected changes attributable to the project in level of service at local intersections will have no particularized impact on plaintiff. The majority of signalized and unsignalized intersections in the area are a significant distance from plaintiff's property, and will not experience a decline in level of service as a result of the construction of the hotel. The additional delays projected for nearby intersections are almost entirely attributable to background growth of traffic, rather than the de minimis impact of the hotel. [Note 21] While the level of service associated with the unsignalized intersection of International Place and the Raytheon driveway will decline from a projected grade of "D" in a no-build scenario to a grade of "E" if the hotel is constructed, this drop to a lower grade results from the de minimis addition of a 0.5-second delay. [Note 22]

18. The Engineering Corporation ("TEC") was engaged by the Board to conduct a peer review of Bayside's TIAS during the permitting process. [Note 23] Samuel W. Gregorio ("Gregorio"), a traffic engineer at TEC, testified at trial on behalf of the defendants.

19. TEC's review recommended a number of minor critiques and changes to Bayside's methodology, including, amongst others, noting that there will be increased delay at the intersection of International Place and Andover Street, which is a significant distance to the northwest of both plaintiff's property and the hotel site; suggesting that November traffic counts be adjusted upwards by 4.6% for the purposes of determining the level of service; and recommending that the hours defined as "peak" be slightly adjusted. [Note 24] I find that TEC's review does not call into question the accuracy of Bayside's conclusions as to the projected impact of the hotel on traffic volumes and on plaintiff's property.

20. I credit Gregorio's testimony agreeing, generally, with Bayside and Cram's projections as to the quantity and distribution of traffic that will be attributable to the hotel. [Note 25]


Under G. L. c. 40A, §17, only "persons aggrieved" have standing to appeal a decision of a zoning board of appeals. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 n.9, (2008). If a plaintiff's legal or property rights will (or likely will) be infringed by a board's action, then he or she qualifies as a "person aggrieved." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term "person aggrieved" is not to be narrowly construed, the plaintiff's injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be "special and different from the concerns of the rest of the community"); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest"). In addition, the injury claimed by the plaintiff also must be "legitimately within the scope of the zoning laws." Marashlian, 421 Mass. at 722.

There is an initial presumption that an individual who is entitled to notice of board hearings is a "person aggrieved," although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-204 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff "must put forth credible evidence to substantiate his allegations." Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided "must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of "credible evidence," the evidence offered must provide specific factual support for each claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Id. "Conjecture, personal opinion, and hypothesis" are insufficient. Id. Furthermore, "[a]ggrievement requires a showing of more than minimal or slightly appreciable harm." Kenner v. Zoning Bd. of Appeals, 459 Mass. 115 , 121 (2011). "[T]he analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be ‘impacted' by such changes." Id. at 122.

As this court previously determined that plaintiff's presumption of standing receded following defendants' evidentiary submissions, the burden shifted to plaintiff to put forth credible evidence of her aggrievement. The court will determine plaintiff's aggrievement by weighing all the evidence the parties have put in at trial on the question of adverse traffic impacts which will flow from the hotel project and visit themselves particularly on plaintiff and her residential property.

Plaintiff's contention is that the project will injure her by causing increased traffic congestion on North Street as it abuts her home, making it far more difficult for her to exit her driveway. Claims of aggrievement concerning increased traffic and decreased parking have been recognized by Massachusetts courts as a sufficient basis, if adequately proved, to confer standing. See Marashlian, 421 Mass. at 723 (a decrease in parking and an increase in traffic were "neither speculative nor too remote to make the persons 'aggrieved.'"). Even so, such claims still must show a sufficient degree of actual injury, rather than mere impact, that flows from the change in traffic or parking conditions. See Kenner, 459 Mass. at 122. "The fact that increased traffic is among the concerns of zoning does not mean that any increase, however slight, constitutes an impact to a protected property interest sufficient to support standing under §17 . . . Almost every project produces an increase of some magnitude in the traffic on the abutting street; for an increase in traffic to constitute a source of aggrievement a plaintiff in a zoning appeal must show that the increase will adversely affect a protected property interest." Caso v. Fletcher, 7 LCR 293 , 296 (1999) (Green, J.) (finding increase of "less than two percent over the existing volume along an already busy highway" insufficient to confer standing). See Michaels v. Zoning Bd. of Appeals, 71 Mass. App. Ct. 449 , 451 (2008) (finding "very slight incremental increase in the number of vehicles" insufficient to confer standing).

Here, plaintiff has failed to present sufficient evidence to carry her burden of establishing that the effect of the traffic attributable to the project is plausibly likely to rise to the level of harm required by Kenner. See Kenner, 459 Mass. at 121-122. The balance of evidence in the record overwhelmingly weighs in favor of the conclusion that the traffic generated by the project in the vicinity of plaintiff's property will be so slight as to have no noticeable change on traffic conditions. I credit Cram's testimony, which was supported by Bayside's TIAS and confirmed by Gregorio's testimony, that the project will generate approximately ten to twelve additional vehicles per hour on North Street during peak hours. This equates to approximately one additional vehicle every five to six minutes, and is an increase of approximately one percent as compared to projected baseline traffic volumes. Furthermore, as those trips are split between the northbound and southbound lanes, only half - five to six vehicles per peak hour - will be added to the northbound lane that experiences queuing in front of plaintiff's house. These figures credibly support Cram's characterization of the project's impact on traffic and queuing as "very, very small." [Note 26] Significantly, these traffic generation figures were not contested by any evidence introduced by plaintiff: Schneider did not conduct his own independent counts of current traffic volume, and accepted the figures of the TIAS both as to the current observed traffic volume and the predicted volume of traffic to be generated by the project. [Note 27] It is worth noting that, even had he not expressly accepted Bayside's projections, Schneider offered no other testimony that plausibly suggests different traffic counts than those offered by Bayside.

Though the data of the TIAS by itself would support a finding that plaintiff will not be injured by the minimal traffic impacts of the project, it is worth noting that a number of factors suggest that the traffic generated by the project will have an even smaller impact on plaintiff than even these figures would suggest. The first of these is the Decision's limitation on use of the project's driveway leading onto North Street. One of the conditions imposed on the project by the Decision - Condition 8 - limits use of the project's North Street driveway to right-hand ingress turns only. This limitation on access was imposed after the TIAS was generated; accordingly, the calculations of the TIAS concerning expected traffic volumes on North Street contemplated full, rather than limited, use of this driveway. Condition 8's subsequent restriction on use of the driveway is likely to limit further the impact of the project on North Street traffic, and plaintiff's' ability to exit her own driveway. In particular: vehicles will (1) be forbidden from pausing in front of plaintiff's home with the intention of turning left, through traffic, into the North Street driveway, and (2) if intending travel on North Street after exiting the hotel, will enter the flow of traffic further north at the intersection of North Street and International Place, as opposed to cutting onto North Street right in front of plaintiff's home. [Note 28] Schneider testified that some drivers nonetheless likely will make illegal turns into and out of the driveway in contravention of this condition. However, I find that this does not rise above the level of hypothesis or speculation, and certainly does not offset entirely the implication naturally drawn from Condition 8 that use of the driveway will be further reduced. Even accounting for the existence of illegal turns, the logical expectation remains that not every driver will choose to spurn the rules of the road, and many will abide by the requirements of Condition 8; I find that this condition indeed will lessen to some meaningful degree the already trivial impact on plaintiff of traffic generated on North Street by the hotel. [Note 29]

A second factor likely to lessen the projected volume of newly generated traffic is the hotel's design, which is intended solely to cater to business travelers rather than the general public. The project lacks a number of amenities typically present in a traditional full-service hotel, such as a ballroom, banquet hall, or flexible event space, as it is intended primarily for use by traveling businesspersons. [Note 30] It will, however, contain a restaurant limited in function and a small meeting room, which are not typical of a full-fledged business hotel; as articulated by Bayside Engineering's response to TEC's report, "the actual use falls somewhere in between the two types of hotels." [Note 31] Nevertheless, in predicting the quantity of traffic generated by the project, the TIAS utilized the ITE trip generation code for a full-service hotel, rather than the ITE code for a business hotel. Cram testified that this was a conservative approach: a traffic model employing the full-service hotel code would project more generated trips than a model using the business hotel code. Schneider agreed that, with regard to the traffic generated by a full-service hotel as compared to a business hotel, "the numbers are quite larger." [Note 32] Accordingly, with a design cleaving closer to that of a business hotel than a full-service hotel, it is likely that the project will generate even fewer than the ten to twelve vehicles per hour projected by the TIAS for a full-service hotel.

Having accepted the figures of the TIAS concerning projected traffic generation, Schneider's assertion is that the addition of a maximum of ten to twelve vehicles per hour nonetheless "could have a tremendous impact" on plaintiff because they "make it into a larger queue," she may not be expecting vehicles to enter the queue from the direction of defendant's driveway, and "[s]he would have a lot of problems making a left turn" of her own through the queue. [Note 33] This is vague, speculative, and quantitatively insufficient to counterbalance the contrary conclusions of defendants' experts, which, in contrast, logically and credibly flow from the minimal number of trips that the project will add to North Street.

For the foregoing reasons, I find that the volume of vehicles added to the flow of traffic on North Street by the hotel will not materially affect queuing outside of the plaintiff's home, and will not cause any appreciable impact, let alone injury, to plaintiff's ability either to exit her driveway or travel on North Street. Accordingly, the negligible impact on traffic attributable to the hotel is insufficient to confer standing. See Kenner, 459 Mass. at 121-122. See, e.g. Caso, 7 LCR at 296; Elles v. Desroche, 17 LCR 265 , 269 (2009)(Piper, J.) (finding no standing where "the most plaintiffs plausibly can claim is that delay will increase by not more than four seconds (and in many cases, for a far shorter interval), during a one to two hour period"); Kiessling-Cooper v. Aumann, 11 LCR 317 , 320 (2003) (Lombardi, J.), aff'd Kiessling-Cooper v. Zoning Bd. of Appeals, 61 Mass. App. Ct. 1114 (2004) (finding no standing where "the project is expected to generate 970 new vehicle trips daily, or a seven and one-half percent increase in the existing daily volume of traffic on Concord Road"); Scanlon v. Stein, 18 LCR 371 , 373 (2010) (Scheier, J.) (finding no standing where "[t]he projected increase in traffic for each of these streets will be less than ten percent, taking into account the traffic calming measures Riverview is required to implement"); Brookins v. Boston Zoning Comm'n, 24 LCR 643 , 647 (2016) (Cutler, C.J.) (finding no standing where "[p]laintiffs altogether failed to rebut the expert testimony of Ms. Pyke, characterizing as 'insignificant' the approximately 1-4% increase in trips projected to be generated by the Proposed Development"); Maloof v. Carroll, 12 LCR 359 , 361 (2004) (Long, J.) (finding no standing where "[m]orning and afternoon peak hour traffic will be increased by only 15 vehicle trips").

Plaintiff's other main criticism based on Schneider's testimony is that the hotel fails to provide adequate parking to meet the demand that it will generate. However, the evidence in the record does not sufficiently support a finding that plaintiff will experience any injury related to the hotel's parking supply. First, I do not credit Schneider's conclusion that the quantity of parking planned for the project will be inadequate, as he has failed to supply credible quantitative evidence supporting this allegation. In support of this claim, Schneider primarily relies upon what he perceives as noncompliance with Tewksbury's zoning bylaw. He argued that the zoning bylaw will require the hotel to have at least 144 spaces for hotel use (which is indeed the number of spaces required in the Decision), but that the zoning bylaw additionally requires, for a restaurant use, one parking space per two and a half seats. Speculating that there will be at least fifty or sixty seats in the hotel's dining facility, Schneider testified that the zoning bylaw therefore requires the project to have approximately 175 parking spaces.

There are a number of serious flaws with this entire line of argument. First, Schneider's interpretation of the bylaw requirements overlooks the possibility that the 144-space parking requirement is intended already to contemplate the demand generated by an integrated hotel dining facility. Indeed, Condition Eighteen of the decision suggests that, for the purposes of the bylaw's parking requirements, the restaurant is not an independent use requiring its own separate and additional parking, but instead properly should be considered to be incorporated within the hotel use: that condition requires occupancy of the restaurant to be limited to guests and their invitees, and requires the restaurant to have both a limited menu and a limited staff. These limitations appear to tailor the restaurant use particularly so as to avoid generating, among other things, additional parking demand beyond that already occasioned by the hotel use. And it is entirely proper for a court to defer to a local board on a perfectly plausible interpretation the board gives to the meaning of a particular provision in the local zoning law. Furthermore, the expert testimony and reports in the record indicate that a restaurant or dining facility of some sort is a typical integrated feature of a generic hotel use, suggesting strongly that a bylaw provision generally addressing hotel use, such as the parking requirements here, is intended to contemplate the demand generated by that integral feature.

More importantly, though, for the purposes of standing, demonstrating that the project fails to comply with the parking requirements of the bylaw is not equivalent to an evidentiary showing that the project, as a factual matter, will have inadequate parking for its actual needs. The question before me is not one the court would reach should it proceed to evaluate the Decision on its merits–the permitted project's compliance with the zoning bylaw. Rather, the question currently to be resolved is whether the plaintiff is aggrieved, and that requires the court to focus on whether, regardless of the bylaw's numerical parking requirement, the hotel's parking needs will be underserved, and then, if so, whether that will visit itself adversely on the plaintiff's property. It also is possible that, for whatever reason, the legal requirements of the zoning bylaw do not reflect accurately the tangible demand generated by this particular project, and those legal requirements therefore do not carry significant evidentiary weight in the court's review of the plaintiff's aggrievement. Plaintiff must point to sound quantitative analysis that is premised upon the realities on the ground, rather than the facial legal requirements of the bylaw, to credibly demonstrate that the project will have an inadequate parking supply to serve the generated demand. See, e.g., Chi Wing Lee v. Sampson, 25 LCR 376 , 379 (2017) (Cutler, J.) (where parties' arguments boiled down to whether or not the project violated the bylaw's parking and density requirements, court declined to view this as pertinent to standing, as "this interpretive dispute is not factual in nature, but instead presents a question of law for the court to determine upon reaching the merits of the case.").

Other than arguing that project will provide fewer parking spaces than are required by the zoning bylaw – a point itself that plaintiff has not established at all convincingly as a matter of law – Schneider's testimony at trial supplied no other credible facts or analysis suggesting that the project in fact will fail to provide sufficient parking for the demand the project would actually generate. Though Schneider did not testify at trial himself as to the number of spaces required by application of a scientific methodology or analysis, Schneider's affidavit did report that ITE trip generation standards require 1.3 parking spaces per hotel room, which here would amount to 172 spaces (as compared to the 144 spaces planned). However, he made this calculation using the ITE code for a full-service hotel; as noted above, his assumption that the project would be a full-service hotel with all of the attendant amenities was erroneous. Bayside Engineering's responsive report to TEC's review further calls Schneider's calculation into doubt. Bayside's report, and Gregorio's testimony, both indicate that the figure of 1.3 spaces per room incorrectly references the average parking supply per room, not the demand generated per room. [Note 34] Bayside, whose approach on this I credit, instead indicated that the average weekday peak demand generated by a full-service hotel is .89 spaces per occupied room (118 spaces here), and the average weekend peak demand is 1.2 spaces per occupied room (159 spaces); for a business hotel, it indicates that the peak weekday demand is .60 spaces per occupied room (80 spaces) and the peak weekend demand is .66 spaces per occupied room (87 spaces). Taking into account the fact that the nature of the hotel will be closer to a business hotel than a full-service hotel, it appears that the hotel's planned supply of 1.09 spaces per room and 144 spaces total will likely be sufficient for its needs. This also accords with Gregorio's credible testimony that 144 spaces is "within the acceptable range" for the proposed use, and TEC's conclusion in its report that "the 144 parking spaces proposed on-site should adequately accommodate the parking demand generated." [Note 35] In sum, Schneider failed to offer any testimony that further buttresses the questionable methodology of his affidavit (which I do not credit), and otherwise only offered the bald allegation of noncompliance with the bylaw in support of the contention that there will be insufficient parking. [Note 36] Based on the foregoing, I find that plaintiff has not produced credible evidence that the project supplies insufficient parking for the demand it will generate.

Even were I to accept plaintiff's contention concerning the inadequacy of parking (and I most certainly do not), I nonetheless would be compelled to find that plaintiff still has not met her burden of showing aggrievement, as there is no evidence in the record connecting any such parking inadequacy with a particularized, plausible harm to the plaintiff. The bare existence of inadequate parking is insufficient, in and of itself, to confer standing; plaintiff must provide evidence of an injury, particular to her, that plausibly flows from that inadequacy. See Cohen v. Zoning Bd. of Appeals, 35 Mass. App. Ct. 619 , 623 (1993). The most intuitively obvious type of harm that can result from a project's insufficient parking supply is a plaintiffs' reduced ability to use on-street parking due to increased occupation of those spaces by a project's parking overflow. For example, in Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 809 (2009), the plaintiff testified that she utilized street parking, and expert testimony indicated that the proposed project would result in a reduction, albeit a mild reduction, of her ability to park on the street close by her home, and this was sufficient to establish the existence of a particularized injury for the purposes of standing. Similarly, in Marashlian v. Zoning Bd. of Appeals, 421 Mass. 719 , 723 (1996), "the record show[ed] that both plaintiffs currently utilize public street parking to meet their business and personal needs," and as a result of the project to be constructed directly across from their properties, that public parking would be lost. Cf. Bergmann v. Town of Lexington Zoning Bd. of Appeals, 25 LCR 154 , 159 (2017) (Speicher, J.) (noting that "the plaintiff does not claim that she uses on-street parking, so even a reduction in available on-street parking would not cause her a cognizable injury"); Cross v. Volo, 16 LCR 725 , 730 (2008) (Grossman, J.) (finding no standing where plaintiff alleged "a decrease in available parking, without explaining where or how available public parking is impacted by the store; nor does he explain whether or how such parking concerns impact him personally").

In both Marashlian and Hoffman, there was direct, credible evidence that plainly connected the circumstance of inadequate parking to a concrete injury - decreased access to the on-street parking supply on which those plaintiffs relied - likely to be experienced directly by the plaintiffs in those cases. Here, plaintiff has not bridged the gap between the claimed circumstance of inadequate parking and any particularized harm to her own use and enjoyment of her property. Plaintiff herself did not testify that inadequate parking at the hotel would affect adversely or harm her in any way, and Schneider likewise confined his testimony to the bare circumstance of inadequate parking without proposing any theory whatsoever as to how that that inadequacy would actually harm the plaintiff. Indeed, it is difficult to see how the manner of harm present in Hoffman or Marashlian could flow here from the hotel's alleged lack of parking. Not only has the plaintiff provided no indication that she utilizes public on-street parking, it is undisputed that there is no on-street parking on North Street at all. [Note 37] In her post-trial memorandum of law, plaintiff does attempt to employ the alleged fact of insufficient parking as a means to return to her arguments concerning increased traffic. She contends that inadequate parking supply is a factor the defendants' traffic projections failed to account for, and those traffic projections therefore are not accurate. I find that there is inadequate support in the record to conclude that the claimed lack of parking would affect adversely the quantity of traffic generated by the project at all, let alone increase it to such a degree that it would injure plaintiff.

I do note that Schneider's report states that a lack of parking supply will "add more traffic to the intersection than what was anticipated by the consultants [sic] trip generation calculations and put more of a demand on the intersection." [Note 38] However, neither the report nor his testimony at trial provided any further specificity, analysis, or opinion as to the quantity of traffic he believed it would add, or the proportionate impact this would have on plaintiff. In fact, Schneider at trial made no mention at all of the claim that lack of parking would increase traffic beyond the Bayside projections, and instead contradicted this conclusion by accepting Bayside's projection of an additional ten to twelve vehicles on North Street attributable to the hotel during peak hours. Given the vague and speculative nature of the statement in his report, his failure to elaborate further at trial, and the contrary testimony he offered accepting Bayside's traffic projections, I do not find there to be any credible evidence that the circumstance of inadequate parking, even assuming it exists, would injure plaintiff by increasing traffic.

Schneider's remaining criticisms of the project provide no further support for plaintiff's contention that she will experience injury. Schneider disapproved of the TIAS' use of a 1% background growth rate for traffic instead of, as he suggests is proper, a 2-6% growth rate. He testified that using the higher growth rate could result in a baseline traffic volume that is 400 to 500 trips greater than current conditions, if the maximum rate of 6% is used. I find that the 1% growth rate used in the TIAS is proper, as I credit Cram's testimony that the 2-6% percent rate, being based upon a single traffic count conducted in 2013, is a less reliable projection than the 1% rate that was provided by the Northern Middlesex Council of Governments.

Even had I credited Schneider's growth rate, though, this is a point of little consequence, as the growth rate is used to establish the baseline level of traffic, regardless of whether the project is built or not. It is true that the use of a higher background growth rate may predict a larger baseline volume of traffic on the road than is suggested by the TIAS; as Schneider's report and testimony admits, however, background growth of traffic is entirely independent of the project's existence, and does not change the quantity of traffic attributable to the project. [Note 39] The relevant inquiry here is not whether plaintiff will be inconvenienced by the general and inexorable growth of traffic in the area, but whether the traffic particularly generated by the project will injure plaintiff. To the extent plaintiff intends to suggest that the traffic generated by the project will have a far greater impact on the plaintiff if it is added to a denser background volume of traffic, this is neither supported by Schneider's testimony, nor would it be a credible suggestion in light of the negligible number of vehicles being added to traffic flow by the project.

Schneider also drew attention to the fact that the level of service at a number of intersections in the vicinity are classified with a grade of "F," which is poor, and that delays at these intersections are expected to increase between now and 2023. However, Cram credibly testified that the additional delay actually attributable to the project, as opposed to general background traffic growth, is quite minimal, and that these intersections, in any event, are largely quite distant from plaintiff's property. I accordingly credit his testimony, and so find, that the de minimis impact of the hotel on the level of service at these intersections will cause no injury to plaintiff. Schneider similarly pointed out that the level of service at the intersection of International Place and the Raytheon driveway will decline from a projected grade of "D" in the no-build scenario to a grade of "E" if the hotel is constructed. However, this is the result of an increase in delay of only half a second: in changing from 34.7 seconds to 35.2 seconds, the delay will break the 35-second threshold for level "E" service. Regardless of the technical categorization of the delay, I find that the addition of an extra half-second of delay will not adversely affect in the real world, and certainly will not injure, plaintiff's ability to navigate traffic.

For the foregoing reasons, I find and rule that plaintiff is not aggrieved by the Decision on the basis of traffic and parking. This being the only remaining basis for standing not previously disposed of on summary judgment, plaintiff lacks standing to prosecute her appeal pursuant to G.L. c. 40A, §17. The defendants are entitled to judgment dismissing this zoning appeals for lack of standing.

Judgment accordingly.


[Note 1] Complaint ¶ 5. Though both private and municipal defendants are named in the complaint, the property at 937 North Street is referred to as "defendant's property" throughout this decision for the purposes of simplicity.

[Note 2] Ex. 4, Decision, p.1; Ex. 8, Bayside TIAS, p. 1, Fig 2.

[Note 3] Ex. 10, Schneider Report, p. 2.

[Note 4] Ex. 4, Decision, p. 1.

[Note 5] Ex. 4, Decision, p. 1.

[Note 6] Ex. 4, Decision, p. 1.

[Note 7] Tr. 141:4-10, 88:2-25, 168:14-23; Ex. 9, Bayside Response, p. 1.

[Note 8] Ex. 4, Decision, p. 13; Ex. 8, Bayside TIAS, pp. 1, 20.

[Note 9] Ex. 8, Bayside TIAS, p. 20; Ex. 9, Bayside Response to TEC Report, p 1. Schneider described other full-service Hilton hotels in the region to include such amenities as a 3,000 sq. ft. meeting room, a 1,300 sq. ft. meeting room, a 2,400 sq ft. ballroom, and on-site catering. See Ex. 6, Schneider Aff., ¶ 19; Tr. 39:10-40:2.

[Note 10] Tr. 84:4-85:12, 104:12-14.

[Note 11] Ex. 6, Cram Aff., ¶ 11.

[Note 12] Ex. 8, Bayside TIAS, p. 3; Tr. 142:20-23.

[Note 13] Ex. 8, Bayside TIAS, p. 4; Tr. 142:20-23.

[Note 14] Ex. 9, Bayside Response to TEC Report, p. 8; Tr. 22:5-18.

[Note 15] Ex. 8, Bayside TIAS, p. 17; Ex. 6, Cram Aff., ¶ 14; Tr. 145:4-14, 178:8-23.

[Note 16] Ex. 8, Bayside TIAS, p. 20; Ex. 6, Cram Aff., ¶ 15; Tr. 150:14-22.

[Note 17] Ex. 8, Bayside TIAS, p. 26; Ex. 6, Cram Aff., ¶ 20; Tr. 153:22-154:6.

[Note 18] Tr. 177:10-13.

[Note 19] Ex. 8, Bayside TIAS, p.1; Tr. 35:7-14.

[Note 20] Ex. 4, Decision, p. 12.

[Note 21] Tr. 179:10-182:7.

[Note 22] Tr. 162:21-163:23.

[Note 23] Ex. 9, TEC Report, p. 1.

[Note 24] Ex. 9, TEC Report, pp. 1-3.

[Note 25] Tr. 217:13.

[Note 26] Tr. 177:25.

[Note 27] Tr. 84:4-85:12 (Q: "You've seen the TIAS that Mr. Cram produced for Bayside?" A: "And I agree with his counts. As a matter of fact, I have a chart here. I don't know if it was in the report, but I do agree with his counts. I'm not disputing his counts whatsoever." . . . Q: "And when he says in his TIAS that trip generation from the hotel will be 70 trips in the AM peak hour and 80 trips in the PM peak hour, which he does in the TIAS on page 5, do you agree or disagree with that?" . . . A: "I really don't have much of an issue with what they expected to have coming in and out from a trip generation standpoint, if that's your question." See also Tr. 104:12-14 (Q: "And you've agreed with the trip generation for the - " A: "That's correct.").

[Note 28] Tr. 152:6-19.

[Note 29] It is worth noting once more that, even were the exit completely unrestricted, the number of vehicles exiting onto North Street would be so small that there would still be no harm to plaintiff.

[Note 30] While Schneider's affidavit opined that the project should be considered a full-service hotel rather than a business hotel, the basis for this opinion was his assumption that the project would contain the same facilities as a number of other Hilton hotels he reviewed in the Commonwealth and elsewhere. However, he testified that he had not reviewed the architectural plans for this particular project in forming that opinion; the evidence in the record indicates that the hotel does not possess the facilities Schneider opined would necessitate a classification as full-service, and instead is designed, as Cram testified, to be far closer to a business hotel than a full-service hotel.

[Note 31] Ex. 9, Bayside's Response, p. 1.

[Note 32] Tr. 69:2-3.

[Note 33] Tr. 129:9-22. See also 48:11-25.

[Note 34] Tr. 232:8-9; Ex. 9, Bayside's Response to TEC's Report, p. 2.

[Note 35] Tr. 227:6; Ex. 9, TEC's Response to Bayside's Response, p. 2.

[Note 36] I also do not credit Schneider's testimony at trial that "[i]n this case, there is no justification for this specific site to say how many parking spaces are required based on ITE." Tr. 52:9-11.

[Note 37] Tr. 186:15-21.

[Note 38] Ex. 10, Schneider's report, p. 7.

[Note 39] Indeed, Schneider's report simply argues that this background increase will have an impact on plaintiff's property whether or not the project is built: "[A]n additional 35% increase in traffic (over what the consultant suggested) at that intersection using only growth factors . . . is a major impact to the intersection, and the adjoining local residents not including any other developments anticipated, i.e., a Hilton Hotel. This background traffic growth will further contribute to traffic congestion directly in front of our client's home, even without any new, known developments." Ex. 10, p. 5.