Opinion
22-P-419
02-03-2023
ANGELA ADDEZIO, trustee,[1] & others[2] v. ZONING BOARD OF APPEALS OF WINCHESTER & another.[3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Angela Addezio as trustee of the Addezio Realty Trust, Wine Country, Inc., and Town Pantry, Inc. (collectively, the Addezios), appeal from a judgment of the Land Court affirming the decision of the Winchester zoning board of appeals (board) to grant a special permit and to approve a site plan allowing 735 Main LLC (735 Main) to construct a three-story mixed-use building (project) located at 735 Main Street in Winchester (proposed site). The Addezios, abutters to the property, contend that the trial judge and board relied on "fatally flawed" traffic and parking data that resulted in clearly erroneous factual findings that the project would not 1 unreasonably or negatively impact traffic in the area and met minimum parking requirements. We affirm.
Background.
735 Main owns the proposed site, which was previously a residential dwelling but is currently a vacant lot. The Addezios own, or operate businesses located in, a single-story commercial building, with a surface parking lot in front of the building, adjacent to the proposed site. 735 Main applied for a special permit and site plan approval to construct a three-story building that would have approximately 2,000 square feet of commercial space and a parking garage on the first floor, eight residential units on the second and third floors, and a surface parking lot to be shared by the commercial and residential users. Following multiple public hearings and project design modifications fashioned in tandem with an architectural consultant retained by the board, the board unanimously approved the application. The Addezios filed an action in the Land Court, pursuant to G. L. c. 40A, § 17, challenging the board's approval of 735 Main's application. After a three-day trial, the judge, who also took a view of the property, affirmed the board's decision. This appeal followed.
On appeal, 735 Main's argument that the Addezios lacked standing to challenge the project is relegated to a footnote to which the Addezios did not respond. We see no reason to disturb the judge's finding that the Addezios' evidence supported their claim that their property would be affected by traffic generated by the proposed project. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 574 (2016) (standing is question of fact for judge).
"On review of a decision by a local zoning board of appeals in an appeal to the Superior Court or the Land 2 Court under G. L. c. 40A, § 17, the judge determines the facts de novo, and considers whether the decision of the board is arbitrary, capricious, whimsical, or based on a legally untenable ground." Stevens v. Zoning Bd. of Appeals of Bourne, 97 Mass.App.Ct. 713, 717 (2020). A judge's review of a zoning board's decision is "highly deferential" to "local control over community planning" (citation omitted). Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 382 (2009) (Wendy's). We review the trial judge's findings of fact for clear error but consider the judge's determinations of law de novo. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012); Wendy's, supra at 383. "If the board's decision is supported by the facts found by the judge, it may be disturbed only if it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary" (quotations and citation omitted). Fish v. Accidental Auto Body, Inc., 95 Mass.App.Ct. 355, 362 (2019).
The facts found by the Land Court judge in his detailed and thorough written ruling support the board's decision. The 3 Addezios do not assert legal error, and we agree with the judge that the board's decision was based on legally tenable grounds, and was not unreasonable, whimsical, capricious, or arbitrary.
The Addezios argue that the judge made clearly erroneous factual determinations regarding Winchester Zoning Special Permit bylaw § 9.4.2(2) based on traffic and parking data that "underestimated the trip generation of the proposed development," and failed to reflect that "available public parking in the area will not be sufficient to absorb any excess parking demand caused by [the project]." In support of this argument, they cite the testimony of their own expert witness and assert that 735 Main's expert analysis was based on low-traffic volume, "variety store" use rather than higher-traffic volume, "coffee shop, [] bakery, or [] convenience store" use that was more appropriate for the site.
In its decision, the board incorporated the Special Permit bylaw, § 9.4.2, requirements of traffic flow and parking consideration into the site plan review discussion of the Winchester Zoning bylaw, § 9.5.1.
Although the judge acknowledged the testimony of the Addezios' expert, that "a high intensity use at the Project would generate more traffic and demand more parking spaces," he credited the testimony of 735 Main's expert that the project in fact would not "unreasonably or negatively impact traffic and parking in the immediate area" based on the Village Center 4 Overlay District (VCOD)'s pedestrian-oriented focus.Ultimately, the judge concluded that "the VCOD does not encourage the high intensity uses hypothesized by [the Addezios' expert]." Despite the Addezios' assertions to the contrary, the judge was entitled to make those credibility determinations. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 575 (2016), quoting New England Canteen Serv. v. Ashley, 372 Mass. 671, 675 (1977) ("the trial judge . . . by virtue of his firsthand view of the presentation of evidence [] is in the best position to judge the weight and credibility of the evidence").
The proposed site is located in the General Business District, which allows mixed-use business and residential uses by special permit, and in the VCOD. The VCOD's stated intent is to "provide a focal point for intensive pedestrian-oriented retail activity" and alter the setback requirements to "encourage active pedestrian-oriented uses."
To the extent the Addezios' claim of error relies on a challenge to the methodology and analysis of 735 Main's expert, it is equally unavailing. The judge found the analysis performed by 735 Main's expert credible because it was based on traffic and parking data collected and evaluated from the area of the proposed site, whereas the Addezios' expert "did not perform his own traffic impact analysis, did not present alternative or adjusted traffic data . . . and focused much of his testimony on critiquing [735 Main's expert's] testimony." 5 The judge further determined that 735 Main's expert's "assumption that the anticipated use of the retail space will be low intensity is supported by the minimum parking requirements of the VCOD" because the "reduction in the number of parking spaces required in the VCOD furthers [pedestrian-oriented retail activity]." We discern no error in these findings. See Crown v. Kobrick Offshore Fund, Ltd., 85 Mass.App.Ct. 214, 226 (2014) .
According to the town's bylaws, the VCOD requires two parking spaces per dwelling unit or one space per 1,200 square feet of retail space. The proposed site provides nineteen parking spaces, one more than the eighteen required under the bylaw.
Accordingly, we discern no reason to invalidate the board's decision to grant 735 Main's special permit and site plan approval. See Stevens, 97 Mass.App.Ct. at 717.
Judgment affirmed.
Green, C.J., Vuono & Brennan, JJ. 6
The panelists are listed in order of seniority.