MECHANICWILLOW, LLC, Plaintiff, v. TERRI EVANS, et al., as members of the Natick Planning Board; and TOWN OF NATICK, Defendants

The now-apparent "ghost haunting land use law," site plan review, see Willis v. Nelson, 27 LCR 245 , 245 (2019) (Foster, J.); see also Corner v. Forest Delahunt Development, LLC, 27 LCR 425 , 427 (2019) (Speicher, J.) (same observation), stalks the defendant Town of Natick in this case. A second specter also disquiets the Town: plaintiff MechanicWillow, LLC ("MW"), the owner of a commercial property in Natick. Both made an appearance for a Halloween trial. And while this Court concludes that the Town hasn't done enough to ward away MW's standing under G.L. c. 40A, § 17, to challenge a site-plan approval granted to the Town, the Court holds that the defendant members of the Natick Planning Board (the "Board") properly granted that approval.

The parties appeared for trial on October 30 and November 2-4, 2020. Having listened to the parties' witnesses, reviewed the exhibits admitted into evidence, considered the parties' stipulations of fact, and heard the arguments of their counsel, the Court FINDS the following facts:

The Navy Yard, its Redevelopment, and Mechanic Street

1. In 2014, the Town retained an outside consultant, Weston & Sampson, to prepare a comprehensive inventory and analysis of every recreational field and park in Natick, Massachusetts. For the next two years, Weston & Sampson and various Town boards and staff convened at least sixteen public meetings about Natick's parks. Their efforts culminated in a 70- page Master Plan for Parks and Fields (the "Parks Master Plan," Trial Exhibit 4).

2. The Parks Master Plan includes a thorough review of a Town-owned, 2.53-acre neighborhood park on Washington Avenue in Natick, known as Navy Yard Field (or sometimes just the "Navy Yard"). The Navy Yard is roughly rectangular. Washington Avenue borders the west side of the Navy Yard. A private way, LaGrange Street, borders the north side of the Navy Yard. A property owned by a charitable organization, The Sons of Italy, abuts the south side of the Navy Yard.

3. The Parks Master Plan recommended significant improvements to the 60-year-old Navy Yard, which by 2016 had suffered considerable neglect. The Parks Master Plan recommended that the Town renovate the Navy Yard as one of its first Master Plan projects. Town officials agreed, and in early 2017, Natick's Town Meeting approved between $1.3 million and $1.5 million to renovate the park. The Town published a request for proposals for the design, permitting, and construction of the Navy Yard renovations, and Weston & Sampson submitted the winning bid.

4. One of the Navy Yard's special features is its proximity to what will be another Town-sponsored recreational amenity, the Cochituate Rail Trail (the "CRT"). The Town is building the CRT along a discontinued railbed formerly owned by CSX Transportation, Inc. ("CSX"). The railbed runs along the entire east side of the Navy Yard. As the railbed approaches the southeast quadrant of the Navy Yard from the north, the railbed drifts to the east, creating a triangular space between the Navy Yard and the railbed (the "Triangle"). The Triangle used to be part of the CSX rail properties.

5. Building the CRT has been a dream of Town officials for years, but the Town didn't get around to buying the railbed (as well as the Triangle) until 2016. Construction of the CRT began thereafter. At the time of trial, Town officials believed work on the CRT would be complete in late 2021.

6. In 2016 and early 2017, while the CRT was still more concept than reality, CRT supporters highlighted the Navy Yard's proximity to the CRT. They envisioned a pedestrian path linking the two recreational sites.

7. CRT supporters also talked in 2016 and 2017 about creating access from the CRT to an east/west street that lies directly across the CRT from the Navy Yard, Mechanic Street. The CRT's supporters saw at least two advantages to such a connection. First, since 2007, the Town has owned 11 Mechanic Street, a parking lot on the north side of the street. The Town purchased 11 Mechanic Street with municipal open-space funds. The property is irregularly shaped. A tip of the northern end of the property abuts the CRT. At the time of trial, the Town had leased portions of 11 Mechanic Street to a taxi company. The Town was using other portions of 11 Mechanic Street as a staging area for construction of the CRT. Back in 2016 and 2017, however, CRT supporters expressed publicly their expectation that, eventually, users of the CRT could park at 11 Mechanic Street, unload their bicycles, and hop on the CRT from there.

8. The second anticipated advantage of a connection to the CRT along Mechanic Street was that the street leads to a busy public thoroughfare, Route 27. Route 27 is only a few hundred feet east of the CRT along Mechanic Street. Some thought that Mechanic Street could serve as a connection between Route 27 and the CRT. And, if a pedestrian connection were built from the west side of the CRT to the Navy Yard, one could envision walking or biking west from Route 27 along Mechanic Street, and across the CRT, to end up at the Navy Yard.

9. MW didn't appreciate the covetous looks CRT supporters were casting at Mechanic Street. The 100 feet of Mechanic Street that's closest to Route 27 is a public way. But the western end of Mechanic Street - the part that abuts 11 Mechanic Street and ends at the CRT - is a private way, and MW owns the fee beneath that way. (This Decision will call that stretch of Mechanic Street "Private Mechanic Street.") MW also owns an improved commercial property (the "MW Property") that extends south from Private Mechanic Street. There are three buildings on the MW Property. At the time of trial, those buildings had twelve commercial tenants, all of whom park on the MW Property. The commercial tenants use Mechanic Street to reach the MW Property. There are no sidewalks on Mechanic Street to separate pedestrians from vehicle traffic.

10. The CRT (including the Triangle) separates the MW Property from the Navy Yard, but the Board and the Town concede that the MW Property is within 300 feet of the Navy Yard. MW hasn't granted the public any rights to use Private Mechanic Street, and MW also has a narrow view of what uses the Town may make of Private Mechanic Street as access to 11 Mechanic Street. By the summer of 2017, MW had made clear to Town officials MW's legal position concerning Private Mechanic Street, as well as MW's concerns about the maintenance costs and liabilities associated with any public use of the street.

Site Plan Review of the Project

11. While MW and Town officials were debating the uses of Private Mechanic Street, Weston & Sampson was holding design meetings (many of them public) for renovations of the Navy Yard. What Weston & Sampson learned in those meetings convinced park officials that they should modify the conceptual renovation designs that had appeared in the Parks Master Plan. The final plans (Trial Exhibit 6) called for eliminating a Little League baseball field and replacing it with a multi-use athletic/ball field, designed primarily for youth soccer. The revised plans also proposed construction of new walking paths, new community gardens, a tot lot/playground, a basketball court, and tennis courts, all of which would comply with ADA accessibility requirements. The final plans also called for replacing the Navy Yard's "parking lot" (a former basketball court, with a seven-car capacity) with a professionally designed, properly curbed and drained parking area. The new parking area would have eighteen designated parking spaces, including two for persons with disabilities.

12. Modified plans in hand, Weston & Sampson's next task was to prepare an application to the Board for review of the project's site plan. The Town eventually submitted that application (the "Review Application," Trial Exhibit 5) to the Board in November 2017.

13. Why more review? Because the Town of Natick's Zoning Bylaws (the "Bylaws," excerpts of which are Trial Exhibit 16, and will be quoted in greater detail later) require site-plan review for all "parks," even if those parks are in areas zoned for parks (as the parties stipulate the Navy Yard is), even if those parks are owned by the Town, and even if the park's plans have been through multiple public reviews already.

14. While the Board didn't receive the Review Application until November 2017, members of the Board had heard many of the details of the Navy Yard project months before. That's because Weston & Sampson and park officials had met informally (but publicly) with the Board in May 2017, to discuss the Town's upcoming site-plan review application for the Navy Yard project.

15. During the Town's informal meeting with the Board in May 2017, proponents of the Navy Yard project had mentioned that, if the Yard's new parking lot were full, park patrons could park at 11 Mechanic Street. But something happened between May 2017 (the date of the informal Board meeting) and November 2017, when the Town submitted its actual Review Application: the previously mentioned fight between MW and the Town over public use of Mechanic Street. And while Town officials weren't ready in November 2017 to concede that the public's rights in Mechanic Street were as limited as MW believed, officials were concerned enough about the issue that they tweaked the Navy Yard proposal. They did so to try to inoculate the project from any controversy concerning Mechanic Street.

16. Thus, while an aerial photograph of the project site (see the "before" photo used at trial, taken from Trial Exhibit 4) included the CRT Triangle as part of the Navy Yard project, Weston & Sampson deliberately depicted the Triangle on a later project plan (see the "after" drawing, taken from Trial Exhibit 6) with the legend "Not in Contract." The Review Application also omitted any discussion of parking access or availability at 11 Mechanic Street.

17. The Board started its public hearing on the Review Application on December 6, 2017. The Board continued the hearing to January 10, January 24, February 7, and February 28, 2018. The Board approved the Navy Yard site plan in a decision (the "Board's Decision") signed on March 7, 2018 and received by Natick's Town Clerk on March 12, 2018. The Board's Decision is Trial Exhibit 15.

18. MW timely appealed the Board's Decision to this Court under c. 40A, § 17. Notwithstanding the appeal, the Town proceeded with the work described in the Board's approved site plan. As of the time of trial, all of that work was complete except for final installation of the park's electrical systems. The park reopened to the public in early 2020, before the coronavirus pandemic escalated in Massachusetts.

The Bylaws

19. The parties stipulate that the Bylaws do not require, for park lands, a minimum number of vehicle parking spaces.

20. Section VI-DD of the Bylaws is entitled "Special Permit Procedures and Site Plan Review." Section VI-DD(1), "Purpose and Intent Administration" [sic], provides:

a) . . . The purpose of the Site Plan Review Procedure hereby established is to protect the safety, public health, convenience and general welfare of the inhabitants of the Town by providing a comprehensive review of plans for those uses and structures which have a significant impact upon the character of the Town and upon traffic, utilities and property values therein. Factors to be considered are . . . parking, loading [and]. access to the development . . . . It is intended to insure that the design and layout of those developments so subject to this procedure in this bylaw will constitute suitable development and will not result in a detriment to the neighborhood or to the environment. It is also intended hereby to assist those wishing to build projects within the Town by providing them with the necessary information about all of the Town's requirements affecting their project prior to the start of any construction or the issuance of . . . permits.

. . .

c) It is the further intent of the Site Plan Review Procedure that any Final Site Plan filed with the SPGA shall receive the approval of such SPGA if said plan conforms to the standards established herein and to the reasonable rules and regulations of the SPGA made in conformity with these bylaws. . . .

21. Section VI-DD(2.B)(e) of the Bylaws (part of "Site Plan Review Applicability and SPGA Designation") provides: "Where Site Plan Review is not otherwise required by these provisions of Section VI.DD, in all zoning districts the construction of parks . . . shall be subject to the Site Plan Review procedure [sic] described herein to be administered by the Planning Board as the SPGA. . . ."

22. Section VI-DD(3)(b) of the Bylaws, under "General Requirements," provides:

Content of Final Site Plan and Other Submittals: In addition to any other requirements which the SPGA may reasonably make, a Final Site Plan shall show all existing and proposed . . . parking spaces, driveway openings, . . . and landscape features such as . . . walks . . . . The Site Plan shall also show the relation of the above features to adjacent ways and properties. . . . The applicant shall further submit a traffic study which shall project traffic flow patterns into and upon the site for both vehicles and pedestrians, and an estimate of the projected number of motor vehicle trips to and from the site for an average day and for peak hours, as well as the existing patterns and existing ways for passage of traffic and pedestrians. . . .

23. Section VI-DD(4) of the Bylaws, "Procedures," provides:

The SPGA shall adopt such rules and regulations for carrying out its duties under this Section as a SPGA . . . . The SPGA may in any particular case, where such action is allowed by law, in the public interest and not inconsistent with the purpose and intent of this Site Plan Review Procedure, waive strict compliance with its rules and regulations. . . .

24. Several witnesses testified without objection from MW that the Board has treated § VI-DD(3)(b)'s requirement of a traffic study as a "rule and regulation" that the Board may waive pursuant to § VI-DD(4) of the Bylaws. The Board's standard site-plan review application form includes a box that allows the applicant to request, specifically, a waiver of the traffic assessment. (See Trial Exhibit 5.) It's also undisputed that (a) the Review Application asked the Board to waive the traffic-study requirement for the Navy Yard site plan, (b) the Town didn't furnish a traffic study, and (c) the Board approved the site plan anyway. Witnesses also testified without objection from MW that the Board has waived traffic assessments where the project under review pertains to an existing use of a site, with no change in use.

25. MW has not argued that the phrase "rules and regulations" in § VI-DD(4) of the Bylaws pertains only to the "rules and regulations" that an SPGA may adopt under § VI-DD(4) "for carrying out its duties under this Section as a SPGA . . . ." (The Board has adopted such rules. They are Trial Exhibit 17. The rules that pertain to this dispute largely repeat the provisions described in Findings ##19-24 above and Findings ##26-27 below, and add nothing that's material to this dispute.) MW also has not argued that the Board illegally waived § VI DD(3)(b)'s traffic-study requirement.

26. Section VI-DD(5), "Criteria for Approval," provides:

In considering a Final Site Plan for approval, the SPGA shall assure that the following criteria are met:

a) Compliance with all provisions of the . . . Bylaws.

. . .

c) Convenience and safety of vehicular and pedestrian movement on the site and in relation to streets and properties in the surrounding area, and for the location of driveway openings in relation to street traffic, so as to prevent traffic congestion and dangerous access within the site and onto existing ways. . . .

27. Section VI-DD(6) of the Bylaws, "Standards for Site Plan Review," provides:

The following performance standards shall be utilized by the SPGA in addition to any specific standards prescribed elsewhere in these bylaws, or in the Rules and Regulations of the SPGA, in reviewing all site plans. These standards are intended to provide guidance to the applicant in the preparation of his plans as well as guidelines for review. These are not intended to be exhaustive, and specific additional standards may be applied for a project if in the opinion of the SPGA such are reasonably necessary. . . . The issues and concerns represented by the standards enumerated below must be addressed to the satisfaction of the SPGA in the Final Site Plan:

. . .

d) Circulation:

With respect to vehicular and pedestrian circulation, including entrances, ramps, walkways, drives and parking, special attention shall be given to location and number of access points to the public streets (especially in relation to existing traffic controls), width of interior drives and access points, general interior circulation, separation of pedestrian and vehicular traffic, access to community facilities, and arrangement of parking areas that are safe and convenient and, insofar as practicable do not detract from the use and enjoyment of proposed buildings and structures and the neighboring properties. . . .

The Project's Parking and Vehicular/Pedestrian Circulation

28. The Town's site plan, Trial Exhibit 6, shows both the Navy Yard's existing parking area and its proposed parking lot. Trial Exhibit 6 shows how these areas relate to adjacent ways and neighboring properties. Trial Exhibit 6 shows the point at which one may access the proposed parking lot from Washington Street, and the relation of that access point to existing traffic controls on Washington Street. Trial Exhibit 6 shows the arrangement of the proposed parking lot and its relationship to all proposed structures at the renovated park.

29. The Town presented no traffic assessments at trial. The Town also offered no testimony at trial (expert or otherwise) concerning existing or anticipated traffic on Mechanic Street.

30. In conjunction with the Board's consideration of the Review Application, Weston & Sampson had the Town's Chief of Police and its Safety Officer review (a) the layout of the proposed Navy Yard parking lot, (b) the parking lot's single entry/exit on Washington Avenue, and (c) the Navy Yard's proposed sidewalk along Washington Avenue. The Chief of Police and the Safety Officer approved those features of the Navy Yard site plan. Having heard the evidence at trial, the Court agrees with and adopts the Chief's and the Safety Officer's conclusions. There is no evidence in the trial record, however, that the Chief or the Safety Officer reviewed other aspects of the parking associated with the Navy Yard or the projected circulation patterns of the park's vehicular traffic apart from the Washington Avenue parking-lot entrance.

31. Before renovations, the Navy Yard had no sidewalks or other paths designated for pedestrian use. By contrast, the renovated park features five pedestrian-only sidewalks: (a) the previously mentioned sidewalk along Washington Avenue; (b) a circular perimeter sidewalk; (c) a sidewalk that runs along the northern edge of the new parking lot and its driveway; and (d) two east-west sidewalks, one at the north and one at the south, that connect the Washington Avenue sidewalk to the circular park-perimeter sidewalk. Only one of the five sidewalks, the Washington Avenue sidewalk, directs pedestrian traffic across ways that vehicles use. The only two vehicular ways that flank sidewalks, Washington Avenue and the parking-lot/driveway, are curbed - in other words, the sidewalk is separated from the vehicular way. The Court finds that these sidewalks provide convenience and safety for pedestrians within the park, along Washington Avenue, and along the park's proposed parking lot. The sidewalks make all of the renovated park's features accessible to all who would need a sidewalk to reach them.

32. The issue of parking arose during the Board's formal meetings on the Navy Yard site plan. During those hearings, Julian Munnich, a 23-year veteran of the Board, concluded that the proposed renovations to the Navy Yard would convert what had been a "neighborhood" park (that is, one within walking distance of its primary users) into a "town" park (that is, one that would attract users and their cars from a wider area). He believed that the parking shown on Trial Exhibit 6 would not accommodate the additional parking demands of the renovated Navy Yard. Munnich didn't have that concern at the time of the Board's informal hearing on the project in May 2017, owing to the statement at that hearing that 11 Mechanic Street would supply additional parking for the Navy Yard. Munnich's concerns arose only after the Town took the position during the Board's formal hearings that the Board should not treat parking at 11 Mechanic Street as part of the Navy Yard project.

33. Board Member Munnich voiced his views about parking during a Board hearing on February 7, 2018. He stated he would vote against the project unless the Town provided an "assurance" for parking. One month later, on March 7, 2018, Munnich changed his vote. What made the difference? Between the two meetings, the acting Town Administrator, William Chenard, told Munnich that the Town would make 11 Mechanic Street available for parking for Navy Yard users. The Town's concession won Munnich's vote for the Navy Yard site plan.

34. The Town offered five witnesses at trial. Two of them (the Town's deputy administrator, James Erickson, and the Town's parks and recreation director, Karen Partanen) expressed their non-expert opinions that parking at the renovated Navy Yard would be adequate. Those opinions don't persuade the Court as to the Navy Yard's parking effects. The Town qualified neither witness as a traffic or a parking expert. Erickson rested his opinions on three facts:

Fact 1: The Navy Yard already was a park, and it would remain one after renovations. (True, but before renovations, the park was dilapidated and unattractive. A third Town witness, the Navy Yard project's designer, Michael Moonan, testified that the park was underused. A fourth witness, Mr. Chenard, testified that the park's playground was closed between 2014 and 2016 because it was unsafe. Witnesses agreed that renovations have made the park a "gem"; Moonan anticipated that use of the park would increase.)

Fact 2: The Town didn't propose to expand the park. (True, but only in terms of the park's physical dimensions. The whole point of the renovations, according to the Parks Master Plan, was to allow the park to be "utilized to its full potential," with "multi generational facilities for community-wide use." Mr. Erickson admitted that post renovations, despite the lack of any formal "programming" of the Navy Yard, its use has increased.)

Fact 3: The project would replace a seven-vehicle, substandard parking area with a modern, eighteen-vehicle parking lot. (Also true, but that comparison overlooks other renovations that eliminated several illegal (but often used) "lawn parking" spaces on the Washington Avenue side of the park.)

Ms. Partanen based her opinions on her observations since the Navy Yard reopened. She nevertheless admitted that since the reopening, use of the park has been subject to state coronavirus restrictions. She also conceded that the park's community gardens haven't opened. She didn't know, nor could she rationally estimate, the number of persons and vehicles that would be at the park during times of maximum use (that is, two concurrent youth soccer games, a basketball game, unrestricted use of the playlot, and planting season in the community gardens). By contrast, the Town's fifth witness, Barbara Sanchez, testified that the park's parking lot has been full several times since the park reopened. (Sanchez offered no views about traffic or parking along Mechanic Street.)

35. Mr. Moonan (formerly of Weston & Sampson) led both the Parks Master Plan effort and the Navy Yard renovation project. Moonan is a landscape architect by training; he wasn't qualified at trial as either a traffic or a parking expert. He testified that Weston & Sampson designed the Navy Yard's new parking lot without analyzing parking demands. Instead, the Town told Weston & Sampson how much of the renovated park the Town was prepared to set aside for parking, and Weston & Sampson fit the new parking lot to that space. Moonan offered no testimony about traffic or parking on or along Mechanic Street. He also didn't know where park users would park if the Navy Yard's new parking lot were full.

36. Mr. Chenard (the official who assured Board Member Munnich that 11 Mechanic Street could be used for Navy Yard parking) offered no testimony about actual or potential traffic along Mechanic Street.

* * *

The parties appeared for trial on three issues: (1) whether MW has standing under c. 40A, § 17, to challenge the Board's Decision; (2) whether, in approving the Navy Yard site plan, the Board lawfully addressed all parking issues relating to the Navy Yard; and (3) whether, in approving the site plan, the Board lawfully addressed all vehicular- and pedestrian-circulation issues relating to the Navy Yard. The Court addresses each issue in turn.

Standing

In order to challenge a local board's decision under c. 40A, § 17, a private entity such as MW must be a "person aggrieved" by the decision. Section 17 presumes that persons who are abutters to abutters within 300 feet of the property that's the subject of the decision are "persons aggrieved." See also Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 212 (2003). At page 2 of their trial brief, the Board and the Town concede that MW qualifies for the presumption. That shifts to the Board and the Town the burden of rebutting MW's claimed standing, whether standing is an issue at summary judgment (see 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 703 (2012)) or at trial (see Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117-118 (2011)).

Massachusetts cases have outlined several ways in which a defendant may rebut a plaintiff's asserted standing under § 17, but the Board and Town employ only two such methods here: that (a) the harms MW anticipates from the Navy Yard project "are not interests that the Zoning Act is intended to protect," 81 Spooner Road, 461 Mass. at 702; and (b) in fact, the project won't harm MW. See id. (defendant may attack plaintiff's presumed standing by offering evidence that the anticipated harms won't occur). Neither assault succeeds in rebutting MW's presumption of standing in this case.

In its answers to the Board and the Town's interrogatories (Trial Exhibit 33) and at trial, MW claimed that the renovations to the Navy Yard would increase vehicular traffic along Private Mechanic Street. That's because, according to MV, parking at the renovated Navy Yard will be inadequate, and thus park users will try to park at 11 Mechanic Street or on the MW Property. MW further claimed that the park renovations would increase pedestrian and bicycle use of Private Mechanic Street, as pedestrians and bicyclists would view it as a convenient way to access the Navy Yard. MW claimed that the increases in vehicle, pedestrian and bicycle traffic would result in (a) inconvenience to MW and its commercial tenants, owing to traffic delays and pedestrian/bicycle interruptions; (b) trespasses onto the MW Property (including Private Mechanic Street); (c) increased liability costs for MW; and (d) increased costs to MW of maintaining and supervising the Private Mechanic Street.

The Board and the Town argue that since the Bylaws don't require a minimum number of parking spaces for park lands, see Finding #19, the Bylaws don't protect MW's interests in preventing increases in vehicular, pedestrian and bicycle traffic along Private Mechanic Street. The Board and the Town ignore the stated purpose of the Town's Site Plan Review Procedure (found in § VI-DD(1) of the Bylaws) and the Bylaws' substantive criteria for site-plan reviews. According to § VI-DD(1), the purpose of the Procedure "is to protect the safety, public health, convenience and general welfare of the inhabitants of the Town by providing a comprehensive review of plans for those uses and structures which have a significant impact upon the character of the Town and upon traffic . . . therein." (Emphasis added.) By mandating that all park projects receive site-plan review (see id. at § VI-DD(2.B)(e)), Natick's Town Meeting has decided that parks could have a significant impact on traffic. Section VI-DD(1) further directs that when conducting site-plan review, the "[f]actors to be considered are . . . parking, loading [and] access to the development," with the end of "insur[ing] that the design and layout of those developments . . . will not result in a detriment to the neighborhood or to the environment." (Emphases added.)

The Bylaws' substantive criteria reinforce the notion that those conducting site-plan review must consider vehicular and pedestrian traffic. Section VI-DD(3)(b) of the Bylaws requires those requesting site-plan approval, unless they ask for a waiver of the requirements, to show the number of parking spaces proposed for the site, and to "submit a traffic study [projecting] traffic flow patterns into and upon the site for both vehicles and pedestrians, and an estimate of the projected number of motor vehicle trips to and from the site for an average day and for peak hours, as well as the existing patterns and existing ways for passage of traffic and pedestrians. . . ." Section VI-DD(5)(c) of the Bylaws obligates the reviewing board to "assure" that the site plan provides for the "[c]onvenience and safety of vehicular and pedestrian movement on the site and in relation to streets and properties in the surrounding area . . . ." (Emphasis added.) Because the Bylaws claim that they try to prevent inconvenient and unsafe vehicular and pedestrian traffic associated with projects required to undergo site-plan review, MW's stated interests in this case fall within the scope of the Bylaws' protections.

The Board and the Town's attempt to rebut, as a factual matter, MW's claims of harm likewise fails. In order to force a § 17 plaintiff who benefits from a presumption of standing under c. 40A to prove at trial his or her claims of aggrievement, a § 17 defendant first

"must offer evidence 'warranting a finding contrary to the presumed fact.'" "Once the presumption is rebutted, the burden rests with the plaintiff to prove standing [i.e., aggrievement], which requires that the plaintiff 'establish - by direct facts and not by speculative personal opinion - that his injury is special and different from the concerns of the rest of the community.'"

Kenner, 459 Mass. at 118, quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33-34 (2006). The trial court then must determine, based on all the evidence, merely whether "'the plaintiff [has] put forth credible evidence to substantiate his allegations.'" Kenner, 459 Mass. at 118, quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996) (emphasis in Kenner). The court need not find that the plaintiff's allegations are meritorious. See Kenner, 459 Mass. at 118; see also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441-442 (2005) ("When the judge determines that the evidence is both quantitatively and qualitatively sufficient" to support the plaintiff's claims of particularized injury, "the plaintiff has established standing and the inquiry stops. . . . [P]laintiffs are not required to persuade the judge that their claims of particularized injury are, more likely than not, true.").

After trial, the Court concludes that the Board and the Town have not presented evidence that would support a finding that the Navy Yard project will not increase vehicular or pedestrian traffic along Mechanic Street, or that such increases wouldn't harm MW. See Findings ##28-36 above. None of the Board/Town witnesses expressed any facts or expert opinions concerning vehicular or pedestrian traffic along Mechanic Street. While two witnesses, Mr. Erickson and Ms. Partanen, claimed that parking at the Navy Yard would be adequate (implying, but never stating, that MW's feared increases in traffic along Mechanic Street won't materialize), neither witness was qualified to give that opinion, and the facts on which they rested their (lay) opinions were incomplete. See Butler, 63 Mass. App. Ct. at 441 (in order for standing evidence to be "credible," it "must be of a type on which a reasonable person could rely" in reaching a conclusion on the disputed issue; "Conjecture, personal opinion, and hypothesis are therefore insufficient."); Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 137 n. 13 (1992) (while "credible" evidence need not always be expert evidence, expert testimony is necessary where "the subject matter is beyond the scope of the common knowledge, experience and understanding of the trier of fact without expert assistance").

The Board and the Town point to a second source of evidence that they argue not only rebuts MW's presumption of standing, but legally negates it. They argue that even if the Navy Yard improvements cause more vehicles and pedestrians to use Private Mechanic Street, the Town's ownership of 11 Mechanic Street, and the Town's associated rights of access to 11 Mechanic Street along Private Mechanic Street, allow such public uses. Therefore, according to the Board and the Town, MW can't complain about vehicles or pedestrians along Private Mechanic Street. [Note 1]

MW disputes the extent of the Town's rights over Private Mechanic Street, and the parties are eager to have this Court decide just what deeded rights the Town has. The Court needn't do that in order to decide whether MW has standing to challenge the Board's Decision: MW's claimed injuries relate not only to its interests in Private Mechanic Street, but also to its interests as owner of the MW Property. MW contends that increased pedestrian use of Mechanic Street will interfere with (or increase the hazards for) commercial traffic going to and from the MW Property. Those effects wouldn't disappear if the Court declared that the public had unfettered rights to use Private Mechanic Street. See Marashlian, 421 Mass. at 722 (abutter's claim of reduced parking availability on a public street sufficient to give abutter standing under local zoning laws); Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 808-810 (2009) (same).

The Court thus concludes that the Board and the Town's evidence at trial is not enough to rebut MW's presumption of standing. But even if the Board and Town had provided the requisite proof at trial, other evidence satisfies MW's burden of putting forth credible evidence to substantiate its allegations of injury. That evidence is (a) Board Member Munnich's opinion, based on his 23 years as a Board member and site-plan reviewer, that the Navy Yard's parking lot would not satisfy post-renovation demands for parking; (b) the Town's assurance to Munnich, in advance of the Board's March 7, 2018 hearing, that Navy Yard users could park at 11 Mechanic Street; (c) the undisputed fact that the sole access to 11 Mechanic Street is from Mechanic Street (including Private Mechanic Street); (d) the widespread promotion, by Town officials and others, of Mechanic Street as a link between Route 27, the CRT, and on to the Navy Yard; (e) MW's ownership of Private Mechanic Street and the abutting MW Property; (f) the costs MW incurs in maintaining Private Mechanic Street; (g) the absence of sidewalks or other pedestrian protections along Mechanic Street; and (h) the commercial traffic to and from the MW Property, via Mechanic Street. MW also has provided credible evidence that its claimed injuries are special to MW, as opposed to the community at large. MW thus has standing under c. 40A, § 17 to challenge the Board's Decision.

Standard of Review of Site-Plan Decisions

While § 17 requires a reviewing court to find the facts de novo, even when it is reviewing a local board's site-plan decisions, see Prudential Ins. Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282 (1986), how it treats the board's decision in view of the facts so found turns on three questions. The first is whether the use or structure that requires site-plan approval is "as of right" under the municipality's zoning laws, or whether those laws require a special permit for the use or structure. See id. at 280-282; Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20-21 (1995). In this case, it's undisputed that (a) the Navy Yard's use as a park triggered site-plan approval of its proposed renovations; and (b) land in the Navy Yard's zoning district may be used as of right for a municipal park. See Findings ## 13, 21.

The second question is whether the board denied site-plan approval or granted it. If the board denies approval for an as-of-right use or structure, the question for the reviewing court is whether "the public interest can be protected 'to a degree consistent with the reasonable use of the site for the uses permitted [in the zoning district].'" Prudential Ins., 23 Mass. App. Ct. at 282. See also Quincy, 39 Mass. App. Ct. at 22 (same). A court may uphold a denial of site-plan approval for an as-of-right use or structure only if the problem prompting the denial is "so intractable that it could admit of no reasonable solution," Prudential Ins., 23 Mass. App. Ct. at 283, or if the applicant "fails to furnish adequate information on the various considerations imposed by the by-law as conditions of the approval of the plan," id. at 283 n. 9.

But here the Board granted site-plan approval. That prompts the third question: did the board approve the site plan with conditions? If so, and if someone challenges those conditions, the issues for the reviewing court are (a) whether the board entertained "'any standard, criterion or consideration not permitted by the applicable statutes or bylaws,'" Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 , 374 (2008), quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003); and, if not, (b) whether the board's conditions are reasonable, based on the facts found by the court, in light of the use or structure that triggers site plan review. See Muldoon, 72 Mass. App. Ct. at 374; see also Castle Hill Apartments L.P. v. Planning Bd. of Holyoke, 65 Mass. App. Ct. 840 , 846-849 (2006) (same).

In this case, the Board approved the Navy Yard site plan without any conditions that address MW's parking, traffic and pedestrian-circulation concerns. In such instances, the only questions for the reviewing court are (a) whether the local board concluded that the site plan meets the applicable local criteria for its approval, and (b) whether that conclusion is based "on legally tenable ground[s]," and is not "unreasonable, whimsical, capricious, or arbitrary . . . ." Conlon v. Rosa, 16 LCR 754 , 756 (2008) (Long, J.). See also Lee v. Sampson, 25 LCR 376 (2017) (Cutler, C.J.) (invalidating site-plan approval for an as-of-right use where site plan did not meet bylaw's requirements). Conlon holds that in reviewing a site-plan approval, the court should be "'highly deferential'" to the local board's decision. Conlon, 16 LCR at 756, quoting Britton, 59 Mass. App. Ct. at 74. According to Conlon, it's "'the board's evaluation of the seriousness of the problem, not the judge's, which is controlling,'" Conlon, 16 LCR at 756, quoting Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005), and "'a highly deferential bow [is given] to local control over community planning,'" Conlon, 16 LCR at 756, quoting Britton, 59 Mass. App. Ct. at 73 (brackets in Conlon).

One could question Conlon's description of the standard of review. Conlon expressly relies on Britton and Barlow, each of which involved judicial review of a special permit. The Appeals Court has warned warns that the deference afforded to the special-permit decisions of local boards isn't always appropriate under c. 40A, § 17 when a court is evaluating a site-plan decision that affects an as-of-right use. See Prudential Ins., 23 Mass. App. Ct. at 280-282. But the concern of the Prudential Ins. court was preventing local boards from exercising site-plan approval powers in a way that unreasonably (and, hence, impermissibly) regulates as-of-right uses. See id. When a board declines to regulate an as-of-right use, the board avoids that particular evil. It thus stands to reason that if a local board reasonably and non-arbitrarily opts to allow an as-of-right use, it's appropriate for the reviewing court to treat the board's decision with the same deference the board's other discretionary decisions deserve. [Note 2]

The Court thus will use Conlon's two-part test to review the Board's Decision as to parking and vehicle/pedestrian circulation issues.

The Board's Decision and Parking

The Town's Site Plan Review Procedure contains only three provisions that address a project's parking. The Board reasonably found that the Navy Yard project met each one:

The site plan must "show all . . . existing and proposed . . . parking spaces . . . ." The plan also must show the relation of the parking area "to adjacent ways and properties." Bylaws at § VI-DD(3)(b). Trial Exhibit 6 shows the Navy Yard's existing parking area, its proposed parking lot, and the relation of both to adjacent ways and properties. See Finding #27. The Board thus had a reasonable basis for finding in its Decision that Trial Exhibit 6 complied with § VI-DD(3)'s requirements as they relate to parking.

Section VI-DD(5)(a) provides that in considering a site plan for approval, the Board "shall assure . . . [c]ompliance with all provisions of the . . . Bylaws." While the Bylaws establish parking requirements for some uses in some zoning districts, MW concedes that the Bylaw has no such requirements for municipal parks in the Navy Yard's district. The Board thus had a reasonable basis for finding in its Decision that the project complies with the Bylaws with respect to parking.

Section VI-DD(6)(d) of the Bylaws, which sets forth "performance standards" for site plans, provides with respect to parking:

[S]pecial attention shall be given to location and number of access points to the public streets (especially in relation to existing traffic controls), width of interior drives and access points, . . . separation of pedestrian and vehicular traffic, access to community facilities, and arrangement of parking areas that are safe and convenient and, insofar as practicable do not detract from the use and enjoyment of proposed buildings and structures and the neighboring properties. . . .

The Navy Yard's new parking lot is superior to its prior parking area with respect to every criterion identified in § VI-DD(6)(d). See Finding #11. The Board thus had a reasonable basis for finding that the Navy Yard site plan met § VI-DD(6)(d)'s performance standard.

MW nevertheless argues that there were too few parking spaces around the Navy Yard prior to the park's renovation, and contends there are still too few, post-renovation. That may be, but the Town's Site Plan Review Procedures don't mandate that the Board assure that a project provide adequate parking. Indeed, had the Board imposed some sort of minimum parking requirement on the Navy Yard project, the resulting decision could have run afoul of the principle that a local board may not impose on an as-of-right project criteria not set forth in the applicable zoning ordinance or bylaw. See Muldoon, 72 Mass. App. Ct. at 374.

MW also has offered no evidence that the Board acted arbitrarily in deciding not to require more in the way of parking for the Navy Yard. MW presented no testimony, for example, that in every other site-plan review for an as-of-right project, the Board has undertaken a parking analysis, or has withheld approval when the Board has concluded that a project doesn't provide enough parking. The minutes of the Board's meeting of December 6, 2017 do note that (a) a Town "dog park" project, which was undergoing site-plan review at the same time as the Navy Yard, would be expanding its parking lot from seventeen spaces to 36 spaces; and (b) a second Town park renovation project, that at the East School, would increase its parking by six spaces, to a total of 45. But MW presented no evidence that the Planning Board required, as a condition of site-plan approval, those projects to furnish those additional spaces. The Board's minutes (the only evidence offered with respect to the other two park projects) suggest instead that the Town simply designed the other two projects that way, without the Board forcing the matter. One might be able to accuse the Town or its parks department of inconsistency with respect to parking, but one can't level that attack on the Board.

Absent criteria in the Bylaws that prescribe "adequate parking," or a showing that the Board departed in the case of the Navy Yard from the Board's usual practices regarding parking for as-of-right projects, this Court must (and will) defer to the Board's decision not to require more from the Town in the way of parking in connection with the Board's approval of the Navy Yard site plan.

The Board's Decision and Vehicle/Pedestrian Circulation

The Town's Site Plan Review Procedures contain these criteria concerning vehicle and pedestrian circulation:

Section VI-DD(3)(b) of the Bylaws requires a final site plan to "show all . . . existing and proposed . . . parking spaces, driveway openings, . . . and landscape features such as . . . walks . . . . The Site Plan shall also show the relation of the above features to adjacent ways and properties." Trial Exhibit 6 meets all of these requirements. See Findings #28. The Board thus had a reasonable basis for concluding that the Navy Yard site plan met § VI DD(3)(b)'s requirements as they pertain to vehicle and pedestrian circulation.

Section VI-DD(5) of the Bylaws provides that, in considering a site-plan approval, the Board "shall assure . . . [the c]onvenience and safety of vehicular and pedestrian movement on the site and in relation to streets and properties in the surrounding area, and for the location of driveway openings in relation to street traffic, so as to prevent traffic congestion and dangerous access within the site and onto existing ways. . . ." The Chief of Police, the Town's Safety Officer, and the Board reviewed vehicular and pedestrian movements on the Navy Yard "site" as well as "in relation to the streets and properties in the surrounding area . . . ." The Chief and the Safety Officer found them to be convenient and safe, and the Court agrees with that conclusion. The Chief and the Safety Officer also reviewed the location of the driveway opening for the new parking lot (the only driveway opening on the site) and concluded it was properly offset so as to prevent traffic congestion and dangerous access within the site and onto existing ways. See Finding #30. As for pedestrian movements, the Navy Yard has five new sidewalks (there were none before), and they provide convenient and safe access to pedestrians within the park and along all vehicular ways. See Finding #31. The Board thus had a reasonable basis for concluding that the Navy Yard site plan met § VI-DD(5)'s requirements as to vehicular and pedestrian movement.

Section VI-DD(6)(d)'s "performance standards" require the Board to give "special attention" to the "location and number of access points to the public streets (especially in relation to existing traffic controls), width of interior drives and access points, . . . separation of pedestrian and vehicular traffic, [and] access to community facilities . . . and, insofar as practicable do not detract from the use and enjoyment of proposed buildings and structures and the neighboring properties. . . ." As discussed earlier, the Navy Yard site plan shows only one vehicular entrance from a public way, and directs pedestrians across vehicular ways in a manner that the Chief of Police and the Town's Safety Officer approved. The renovated park separates "pedestrian and vehicular traffic." Its sidewalks afford greater "access to community facilities" by able pedestrians as well as those with disabilities. The parking area and the sidewalk systems promote, rather than detract from, the use and enjoyment of the park; they don't detract from neighboring properties. See Findings ##30-31. The Board thus had a reasonable basis for concluding that the Navy Yard site plan met § VI-DD(6)(d)'s standards.

The Board thus reasonably concluded that the Navy Yard site plan met the Bylaws' criteria as they pertain to vehicles and pedestrians. [Note 3]

MW failed to offer at trial any evidence that the Board's conclusion was arbitrary, capricious, or otherwise departed from the Board's usual practices in reviewing vehicle and pedestrian circulation issues arising from as-of-right uses. Instead, MW argues that parking for the renovated Navy Yard is inadequate, and because there's not enough parking, a parade of "circulation horribles" will occur: distracted drivers will look for parking on side streets and unauthorized areas; cars in travel lanes will halt traffic while they wait for spaces to open up; and parents will let children exit their cars in the middle of busy streets. Owing to the constraints on judicial review under § 17 for approved site plans that allegedly shouldn't have been approved, or supposedly lack appropriate conditions, the Court must reject MW's claims, for two reasons. First, while the Board and the Town failed to prove at trial that parking will be adequate, and while there's evidence that parking might be inadequate, MW never proved that parking is or will be inadequate. MW also offered no evidence as to the extent of the inadequacy, or that such inadequacy will cause some or all of the consequences MW claims. While § 17 doesn't obligate MW to prove at trial its parking or traffic contentions in order to maintain standing under § 17 to challenge the Board's Decision, § 17 does impose that burden on MW if it wants this Court to hold that the Board's Decision was unreasonable. See Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 810-811 (1981) (review of planning board's decision under G.L. c. 41, § 81BB; "The burden of proving that the board has exceeded its authority lies, of course, with the plaintiffs.").

The second problem with MW's argument is the one highlighted earlier: it presses the Board (or the Court) to impose requirements on an as-of-right use that aren't found in the Bylaw. The Board (and this Court) may not do that.

For these reasons, the Court will affirm the Board's Decision. Judgment to enter accordingly.