Opinion
No. SUCV 2003-6080.
December 12, 2006.
FINDINGS OF FACT, RU:INGS OF LAW, AND ORDER ON PLAINTIFF'S JURY WAIVED TRIAL
The plaintiff, Adriana Contartese ("Contartese"), brought this action for de novo review of a decision of the Zoning Board of Appeal of the City of Boston ("Zoning Board"), to allow defendant Mount Washington Bank ("Mount Washington") to add a drive-up teller window to the bank building located on its premises at 430 West Broadway in South Boston ("the Bank"). Pursuant to Section 11 of the Boston Zoning Enabling Act, St. 1956, c. 665, as amended, Contartese challenges the validity of the Zoning Board's decision to grant the variance permitting Mount Washington to construct the drive-up teller window. Contartese contends that the Zoning Board's action was unauthorized by the Enabling Act and the Boston Zoning Code.
Under the provisions of the Saint Vincent's Neighborhood District, an overlay district in South Boston, the Bank is located in a Neighborhood Shopping District, in which drive-up teller windows are a forbidden use. Contartese owns a home at 356 Athens Street in South Boston, located directly across the street from the rear side of the Bank. As an abutter, Contartese is a "person aggrieved" under St. 1956, c. 665, § 11, and has presumptive standing to challenge the Zoning Board's decision. This matter is before the court for a jury waived trial. After a jury-waived trial, and having considered all of the evidence, this court makes the following findings of fact and rulings of law.
FINDINGS OF FACT
Contartese owns and resides in the property at 356 Athens Street in South Boston. She purchased the property in 1998. Athens Street is a narrow, one way street, with travel permitted from west to east. Contartese also uses 356 Athens Street as her mailing address in her practice as an attorney. The building is a three story residential structure and consists of three rowhouses, at 350, 354, and 356 Athens Street. The neighborhood is a densely populated, urban area. The building at 350-356 Athens Street is located close to the edge of the property line. Consequently, its first floor doors and windows are very near the street. The property at 356 Athens Street is in the 3F-2000, multi-family residential zone of the Saint Vincent's Neighborhood District, an overlay district in South Boston.
The issue of whether Contartese is operating a business in a residential zone has not been resolved, and does not need to be decided here. At her deposition, Contartese disputed this allegation, stating that she primarily works in courtrooms in the Commonwealth or visiting clients in jail. Her professional letter head, however, contains the 354 Athens Street address.
Mount Washington has owned and operated a bank on its premises at 430 West Broadway for over 80 years. The Bank is located in a Neighborhood Shopping District of the Saint Vincent's Neighborhood District. Egress to and from the Bank now takes place from two driveways on West Broadway. The rear section of the Bank's parking lot, which borders on Athens Street, is used for employee parking. The parking lot has two existing entrances with curb cuts that open onto Athens Street. The portion of Mount Washington's property bordering Athens Street is surrounded by a chain link fence, which includes gates at each of the entrances onto Athens Street. These gates have generally been kept closed since 1998, with occasional use for employee egress through one of the two gates. A dumpster had been located along the back fence, blocking access to the other gate, for several years, but has since been moved. The front of Contartese's property overlooks the back of Mount Washington's parking lot. Other commercial enterprises along West Broadway, including a busy municipal parking lot, are also clearly visible from the front of Contartese's property.
West Broadway is a major thoroughfare in South Boston. The lower part of West Broadway, where Mount Washington's property is located, is a busy shopping street, filled with both pedestrian and vehicular traffic. Several MBTA bus routes traverse West Broadway. An MBTA bus stop is located on West Broadway steps from the Bank, as is a 4-stop taxi stand. Traffic congestion, double parking, and inability to find a parking space are neighborhood concerns along this section of West Broadway. Vehicles seeking to avoid the congestion along West Broadway sometimes travel along Athens Street. A 2004 study by McMahon Associates, Inc. (Exhibit 38) found that approximately 35 cars per hour traverse Athens Street on an average weekday morning. This court credits McMahon's study.
Based on the transcript of the hearing before the Zoning Board, and testimony at trial, this court finds that Mount Washington provides a valuable community service to the Lower West Broadway neighborhood, and that the Bank is considered a good neighbor and a stabilizing asset in the neighborhood, as well as providing jobs which benefit the local economy. This court also finds, based on testimony from Edward Merritt ("Merrit"), Mount Washington's president, and the transcript of testimony at the hearing before the Zoning Board, that Mount Washington's customers have expressed an increasing need for more accessible and easier-to-use banking services. Customers are closing their accounts with Mount Washington because of traffic congestion, lack of parking, receiving parking tickets, and the longer walks required by parking where space is more available. Merritt stated that Mount Washington is losing approximately five to ten customers monthly because customers become frustrated with the time required to navigate the congestion on West Broadway and to find a place to park in order to conduct basic banking transactions. A number of local politicians, including three City Council members and representatives of the mayor's office, approached Mount Washington and suggested that adding a drive-up teller window would help to reduce traffic congestion and double parking concerns on West Broadway in front of the bank.
On December 18, 2002, Mount Washington submitted an application to the City of Boston Inspectional Services Division for a permit to add a drive-up teller window to the east side of its existing building. Mount Washington's application included plans showing that cars would enter the drive-up teller line from West Broadway, and exit by turning right onto Athens Street. The proposed drive-up teller line was to be located on one of three parcels of Mount Washington's property at 428-430 West Broadway. Mount Washington acquired each of its three lots at separate times, through separate deeds, and has maintained separate uses on each lot. The Bank is located on parcel 060189900, facing West Broadway. Contartese's house faces the rear of Mount Washington's property at 428-430 West Broadway, parcel number 0601882000, which is currently used as an employee parking lot. Parcel 0601898002 is an odd-shaped, long and narrow lot with a large jog at the rear where it abuts Athens Street. The parcel now serves as an occasional driveway. The proposed exit, on this parcel, was to be positioned to the east of Mount Washington's existing curb cuts on Athens Street, and to the east of Contartese's house. Traffic exiting the teller line would exit facing an empty lot which is located to the east of Pulaski Avenue, a pedestrian way directly adjacent to Contartese's house, turn right on Athens Street, a one-way street, traveling east away from Contartese's house, and never pass in front of her house. A condition of the permit is that the proposed teller window would only be open during regular banking hours. The proposed project included the installation of speed bumps on the driveway exiting the drive-up window, a gate to be closed when the Bank is not open, and the addition of another one-way traffic sign at the entrance onto Athens Street. The Inspectional Services Division denied Mount Washington's request for a permit, citing Article 57-11 of the Zoning Code. Article 51-11 requires a variance for the proposed use, because a "drive-in bank" is not permitted in a Neighborhood Shopping District.
The Lower End Political Action Committee ("L.E.P.A.C"), a South Boston neighborhood association, held a series of meetings concerning the drive-up window. Brian R. Mahoney, L.E.P.A.C.'s president, stated that he posted flyers providing notification of the meetings at all of the addresses on Athens Street, including all three of the addresses in Contartese's row house, although two of them were undergoing renovation and not then occupied. L.E.P.A.C determined that its members' main concern was that Athens Street remain a one-way street. After meetings in March and April 2003, each of which was attended by approximately 25 people, the neighborhood association voted to support Mount Washington's proposal.
Mount Washington then mailed notice of the public hearing before the Zoning Board to all parties "deemed affected." On July 1, 2003, Mount Washington also published notice of the public hearing regarding its application for a variance in the Boston Herald. As the Zoning Board's transcript indicates, Contartese participated in the hearing before the Zoning Board on July 22, 2003. A number of local political leaders, including state representative Jack Hart, City Council members Stephen Murphy and James Kelley, and representatives from Mayor Menino's office, all spoke in favor of permitting the drive-up window. Several South Boston residents spoke in favor of the drive-up window. Contartese and former plaintiff Reilly testified that they opposed the drive-up window due to their concerns about its impact on Athens Street. Reilly stated that his concern was that traffic would travel the wrong way on Athens Street. The president of the South Boston Action Council expressed concerns that the proposed teller window would increase traffic on West Broadway, as customers waited to enter the teller line near the bus stop, and therefore impact students exiting a nearby Head Start program. On July 22, 2003, the Zoning Board unanimously approved Mount Washington's request for a variance. On December 17, 2003, the Zoning Board filed the notice of its decision to grant the variance for 428-430 West Broadway, Ward 6, with the City of Boston Commissioner of Inspectional Services.
Pursuant to St. 1956, c. 665, § 11, Contartese and two other plaintiffs, Tamarah Belcyzk and John Reilly, owners of the other two rowhouses which share Contartese's building, appealed the Zoning Board's action to the Superior Court. On January 20, 2004, the court (Sanders, J.) granted the plaintiffs' motion for a preliminary injunction to prevent Mount Washington from constructing the drive-up window, in reliance on the variance, pending the outcome of this action. On February 6, 2004, the court (Sanders, J.) also denied the defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), finding that the plaintiffs had alleged sufficient facts relative to their standing. On December 22, 2005, the court (Botsford, J.) denied the defendants' motion for summary judgment. Plaintiff Reilly filed a stipulation of dismissal on October 8, 2004. Plaintiff Belcyzk filed a stipulation of dismissal on August 24, 2006, leaving Contartese as the only plaintiff. This court heard the non-jury trial over ten days, from August 28, 2006 through September 9, 2006. This court also viewed the site, with Contartese and her counsel, as well as Mount Washington's counsel, on August 28, 2006.
In its decision granting the variance, the Zoning Board determined that Mount Washington had met all of the conditions necessary for a variance, pursuant to Article 7, § 7-3 of the Zoning Code. The Zoning Board's decision contains findings of specific factors that it stated supported each of its three determinations under Section 7-3. In support of its conclusions under Section 7-3(a), the Zoning Board determined that Mount Washington's lot has a unique shape, long and narrow, with "a small jog at the rear," surrounded by smaller lots. The Zoning Board determined that "despite the existence of some residential units, the area is primarily businesses and a strict enforcement would deny the appellant any reasonable use of the land."
Pursuant to Section 7-3(b), the Zoning Board found that due to the "[p]ractical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of a variance is necessary for the reasonable use of the land or structure and the variance as granted by the Board is the minimum variance that will accomplish this purpose." The Zoning Board described specific factors to support its determination, finding that "Mount Washington operates a bank at the location and has served the community of South Boston for numerous years and desires to further serve existing clientele by installation of drive-thru window. Mount Washington has an excellent reputation for 'energizing and invigorating' an area. Impact of drive-thru minimal, as its hours of operation coincide with banking hours and is far less impactful than other competing and allowable business uses in the district. Mount Washington has spent a large amount of time working with the community in addressing its inquiries and its concerns. Desires to serve banking needs and desires of community and to expand level of service to existing customers. Relief necessary for reasonable use of land and structure. Drive-thru teller window minimum variance that will accomplish this purpose."
The Zoning Board also found that granting Mount Washington a variance would comply with Section 7-3(c) of the Boston Zoning Code, that the "variance will be in harmony with general purpose and intent of code and will not be injurious to neighborhood or otherwise detrimental to public welfare." The Zoning Board stated that "the variance sought will accomplish the desired goals of promoting the health, safety, convenience, morals and welfare for the inhabitants of the City." It found that "approval of the variance will likely provide for new economies, job opportunities, and will likely increase the overall appearance of the area." It also found that the variance would have "no injurious or detrimental impact" on the neighborhood and would "likely refresh and revitalize the neighborhood and provide a much needed service to the public." The Zoning Board asserted that it had considered the number of people working or residing on the land, the character and use of adjoining lots as well as those in the neighborhood, and traffic conditions in the neighborhood.
Having considered the testimony at trial, the view of the site, the zoning maps and regulations, and copies of the proposed plans for the drive-up window, this court finds that the lot on which Mount Washington proposes to construct the driveway for its drive-up teller, one of three contiguous parcels it owns in this area, is a unique shape, a small, narrow strip, 111 feet long, 10 feet wide where it abuts West Broadway, and 30 feet wide at its egress onto Athens Street. The lot extends along the length of the eastern side of the Bank building. There is no building or structure currently on this lot, and it is not suitable for construction of a building. For most of its length, the lot is too narrow to allow a vehicle to turn around, or for two vehicles to pass each other. Therefore, the lot is not suitable as a parking lot. In addition, installation of an ATM kiosk on this lot would be physically and practically infeasible.
This court finds that Mount Washington is suffering substantial hardship without the drive-up teller, because it is losing customers and goodwill in the community due to inadequate parking and traffic congestion. This court finds that Contartese's proposed alternative, installation of an ATM kiosk, besides its practical infeasibility, would not alleviate any of the parking or congestion issues, since, under the Saint Vincent Neighborhood District definition of a drive-in bank, in order to permit installation of an ATM as of right, customers would be required to park their cars and exit their vehicles prior to using the ATM machine. Installation of an ATM kiosk at the rear of the bank, on the separate lot owned by Mount Washington which is currently serving as employee parking, would not be economically feasible, since it would require customers to drive down the narrow strip to the east of the Bank, turn left and park in an isolated area not visible from the street, exit their cars, and then enter the ATM kiosk. In a densely populated urban environment, where customers anticipate using an ATM machine close to the street and facing the street, to deter crime, customers are unlikely to avail themselves of an ATM kiosk at the rear of the Bank building.
The record before this court includes traffic and noise studies conducted by McMahon Associates, Inc., Engineers and Planners in Boston ("McMahon"). After considering the studies, the testimony, and the site, this court finds that McMahon's traffic and noise studies are credible and reliable. Gary R. McNaughton ("McNaughton"), a professional licensed engineer and Vice President and General Manager of McMahon, submitted a report based on a traffic study he performed on March 19, 2004, at Mount Washington's request, to assess any impact of the drive-through teller. The study was based on existing traffic conditions, the mechanics of drive-through teller operations, actual trip generation data, and a potential noise assessment analysis. McNaughton performed an empirical study using an Automatic Traffic Recorder ("ATR") and also relied on the Institute of Transportation Engineers ("ITE") research publication, Trip Generation, 7th Edition. McNaughton concluded that traffic at the drive-up teller window would have a negligible impact on the adjoining parcels.
Based on McMahon's study, this court finds that approximately 32 vehicles per hour currently travel along Athens Street during the weekday morning peak period from 7 a.m. to 9 a.m., and 35 vehicles per hour travel along Athens Street during the weekday afternoon peak period. At another Mount Washington branch, the average transaction time per drive-through transaction is 2 minutes, 45 seconds, and on an average day approximately 16% of transactions are processed through the drive-up window. Based on transaction length, the proposed drive-up window would have a capacity of 22 vehicles per hour. ITE guidelines recommend an estimate of 30% of a bank's transactions for a drive-up teller window, much higher than Mount Washington's observed percentage at another branch. Using the more conservative 30% drive-up transaction rate, the proposed drive-up teller at 430 West Broadway would result in approximately 9 vehicles per hour exiting onto Athens Street during the weekday morning two-hour peak travel period, and 15 vehicles per hour during the weekday afternoon two-hour peak travel period. Relying on ITE guidelines, McMahon determined, and this court finds credible, that these increases are considered a negligible variation in existing conditions.
McMahon conducted a noise study in the vicinity of Contartese's house on March 19, 2004. In its noise assessment, McMahon relied on Federal Transit Administration Guidelines for determining any potential noise impact. After evaluating the existing noise levels in decibels, and considering the possible noise associated with the drive-up teller, McMahon's study, and trial testimony by one of its traffic engineers, indicated that the anticipated noise from the drive-up window, if any, would be overshadowed by the existing ambient noise associated with the MBTA, including the MBTA bus stop 190 feet from Contartese's house, and that there would be no increase in overall ambient noise associated with the drive-up teller.
McMahon determined, and this court finds credible, that sources of noise on Athens Street include vehicle traffic on West Broadway, Dorchester, and Athens Streets. Among the most common vehicles are passenger cars, trucks, and MBTA buses, with MBTA buses along Route #9 being the loudest. While idling at bus stops, the buses' cooling fans and engine casings are the dominant source of noise. While traveling on West Broadway and accelerating away from the curb at bus stops, their diesel exhaust and tire/roadway interactions are the dominant source of noise. McMahon determined, and this court finds credible, that the average noise from the MBTA bus stop 190 feet away from Contartese's house is 46 dBA. This measure of 46 dBA only represents noise associated with buses, and does not include other traffic on West Broadway. McMahon found, and this court finds credible, that the equivalent noise 25 feet away from Contartese's house, from vehicles exiting the proposed teller window onto Athens Street, would be 47 dBA. McMahon determined, and this court finds credible, that, combined with the existing noise from MBTA buses, the drive-up teller window would result in a noise level of 50 dBA at Contartese's property, which is below the threshold level of impact as defined by the Federal Transit Administration for urban residential neighborhoods. If noise from other vehicular traffic on West Broadway and Athens Streets were included, buses would continue to be the loudest source of noise for residents on Athens Street after construction of the drive-up teller window. The minimal noise related to vehicles exiting the drive-up window would not result in an increase in overall ambient noise. Given the current number of vehicles on Athens Street, its proximity to the MBTA bus stop, the existing traffic patterns, the limited hours of usage of the drive-up teller window, and established federal guidelines and threshold acceptance levels, this court finds that the addition of the drive-up window would have no appreciable impact on existing traffic on Athens Street.
In support of her contention that her property will decrease in value, Contartese relied on testimony and two single-page reports from one real estate appraiser, George Papulis ("Papulis"). Papulis is a licensed, certified Massachusetts real estate appraiser, with 15 years of experience in residential real estate appraisal. Papulis noted that his evaluation was based on "common knowledge and conventional wisdom." His report stated that "by design" the proposed teller window would generate increased traffic in Contrartese's "immediate area." It also noted that "[c]onventional wisdom dictates" that commercial enterprises "thrive on above average, moderate traffic flows, (foot and/or vehicular), whereas residential areas tend to prosper with limited, little traffic. As such, what is good for one zone is detrimental to the other." The report continues, "[f]rom a residential perspective, it appears as though a heavy traffic flow adds an element of danger, while a lesser traffic flow enhances an area's privacy."
Papulis testified at trial that he had no commercial appraisal license and no experience with commercial appraisals. He also stated that he did not review any documents prior to producing his report, and that he did not enter Contartese's premises during his initial half-hour visit to the site, on which his first report is based, although he did do so prior to preparing his second report, in February 2006. Papulis said that he did not conduct any traffic, noise, or pollution studies, and did not review any other person's traffic, noise, or pollution studies in making his report. He made no comparable sales evaluations, did not view any appraiser's reports, and did not know the market value of Contartese's house when he produced his first report. Papulis stated that the only information he considered in producing both of his reports was his observation of the site, as well as his training, education and experience. When further questioned by Mount Washington's counsel, Papulis stated that he did not have any information about Mount Washington's business hours, and that he did not know where on the bank's property the proposed driveway would be located, just that it would be "someplace at the back of the bank."
Papulis testified that properties west of Mount Washington's bank building would not be affected by traffic egressing to the east, and that only properties across the street from the bank would be affected in marketability or value by the proposed drive-up teller, regardless of where the cars entered Athens Street. Papulis also gave his opinion that potential buyers would not care whether Mount Washington operated a drive up window or an ATM, and would not be interested in the hours that the drive-up window was open. He testified that he thought potential buyers would have a "perception" that either an ATM or a drive-up window would create problems, and that this would have a negative effect on Contartese's property value. Papulis stated that 356 Athens Street presently has a "minimal" element of "external obsolescence," but that a potential buyer's concern about the view of Mount Washington's bank from the front of the property would not be a significant obstacle in selling it. "External obsolescence" is a term used by real estate appraisers to indicate a negative influence outside the property which impacts a property's market value, here the commercial influence, including mainly commercial views from the property, surrounding a residential area.
In February, 2006, Papulis determined that the value of Contartese's property was $411,000 without the teller window and that it would be 10% less, or $370,000, if the window were constructed. His second report, however, did not contain any of the data customarily used in an appraisal, such as comparable sales of property within close proximity to Contartese's. This court finds that Papulis is experienced in residential, but not commercial, real estate appraisal. This court finds that Papulis did not consider any of the standard information generally used in an appraisal in producing his opinion of the potential impact of the teller window on Contartese's property. This court finds that Papulis' reports, as well as his testimony at trial, are not supported by evidence, and that they represent personal opinion and speculation about what potential buyers might think.
Stephen G. Elliot ("Elliot"), a partner in Gottschalk Associates, Inc. of Framingham, one of the defendants' experts, testified that he has 30 years of experience in commercial and residential real estate appraisal, and has performed over 18,000 commercial, residential and industrial appraisals. He is a licensed, certified Massachusetts real estate appraiser, was Director of the Society of Real Estate Appraisers for three years, has held a number of offices on the Massachusetts Board of Real Estate Appraisers, including the office of president in 2004, and is an Appraisal Foundation Certified instructor. The defendants' other real estate expert, Richard Lipof ("Lipof"), is president and founder of Lipof Real Estate Services, Inc. of Newton. He testified that has been a real estate appraiser since 1988, and appraised over $700 million in commercial and residential real estate during just his first three years as an appraiser. He is a member of the Appraisal Institute, the Greater Boston Real Estate Board, and the Massachusetts Board of Real Estate Appraisers.
Elliot determined, and this court finds credible, that based on existing factors, including the fact that Athens Street is a one-way street, and that any additional traffic generated would exit to the east of Contartese's property, the commercial nature of the area, and the limited hours of operation of the proposed teller window, none of the properties at 350-356 Athens would suffer any diminution in value because of the installation of the drive-up teller. No additional traffic would pass Contartese's property as a result of the drive-up teller because cars would exit onto Athens Street traveling away from her property. Lipoff also determined that based on a number of factors, including the commercial nature of the area, the view of retail and office properties and a parking lot from 356 Athens Street, the limited hours of operation of the proposed teller window, the existing traffic and commercial activity, and the lack of any appreciable negative impact on traffic from the proposed teller, the drive-up window would have no negative impact on abutting structures. Lipoff stated that Contartese's property had reached the maximum "external obsolescence" due to the commercial nature of the surrounding area. Both of the defendants' experts reviewed McMahon's traffic study subsequent to making their appraisals, and stated that McMahon's study confirmed their professional opinions that the market value of Contartese's premises would be unaffected by the teller window. After considering the reports and testimony from the two real estate appraisers hired by the defendants, as well as Papulis' reports and testimony, this court finds that the proposed drive-up window would have no impact on the value of Contartese's property at 356 Athens Street.
It is undisputed that Mount Washington's proposed use requires a variance. According to Tables A and B of the Saint Vincent Neighborhood District use regulations, a "drive-in bank" is explicitly forbidden in both the multi-family residential and neighborhood shopping districts. As the defendants correctly indicate, parking lots, parking garages, post offices, and automatic teller machines ("ATMs") are uses allowed by right in the neighborhood shopping zone, but prohibited in the residential zone. Table B of the Saint Vincent Neighborhood District use regulations also indicates that a bank, a day care center, an art gallery, a plumbing shop, a tailor or shoe repair, a local retail store, and a take-out or eat-in restaurant are uses allowed as of right in a neighborhood shopping district. Additionally, drive-in restaurants are allowed with conditional approval.
At trial, Contartese contended that Mount Washington is operating under a non-conforming use at the present time. This assertion is not supported by evidence in the record. Based on testimony from the City of Boston Inspectional Services Division, this court finds that Mount Washington could, as of right, permit customers to use its existing driveways and curb cuts to exit onto Athens Street after conducting their business within the bank. Since the curb cuts and the current use as a bank and an associated parking lot are permitted as of right, Contartese's argument that Mount Washington has not been actively using the curb cuts, and has therefore lost the benefit of any "grandfathering" of a non-conforming use, does not bear on whether Mount Washington's use conforms to the zoning code. Additionally, based upon Merrit's testimony, this court finds that Mount Washington employees have sporadically exited the parking lot onto Athens Street through one of the two existing curb cuts since 1998.
This court further finds that a drive-through teller tied to Mount Washington's hours of operation would have a smaller impact on the surrounding area than would the installation of a 24-hour ATM or a take-out restaurant, uses permitted as of right in the neighborhood shopping district. Installation of a 24-hour ATM or a take-out restaurant would create vehicular and pedestrian traffic during evening, night, and weekend hours, times when Mount Washington's customers currently do not use the bank's facilities, and when residents of the neighborhood are more likely to be at home.
RULINGS OF LAW
The Boston Zoning Enabling Act, St. 1956, c. 665, § 11, authorizes any "person aggrieved" by an action of the Zoning Board to challenge it by an action in the Superior Court. The definition of a "person aggrieved" is identical to that under G.L. c. 40A, § 17. Decisions concerning standing under G.L. c. 40A, § 17 apply to questions of standing under the Boston Enabling Act. Circle Lounge Grille, Inc. v. Board of Appeals of Boston, 324 Mass. 427, 432-433 (1949); McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 930 (2004); Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657, 659 (2001); Sherill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274, 275 (1985).
Although the Zoning Board is properly named the Zoning Board of Appeal, some case names refer to it as the Zoning Board of Appeals. The names used here are as they appear in the case caption.
Contartese's Standing
To prevail in her challenge of the Zoning Board's decision to grant a variance for the drive-up teller, Contartese must first establish that she is a "person aggrieved." Green v. Board of App. of Provincetown, 404 Mass. 571, 572 (1989). Only a "person aggrieved" may challenge a decision of a zoning board of appeals. See Watros v. Greater Lynn Mental Health and Retardation Assoc., 421 Mass. 106, 107 (1995); McGee, 62 Mass. App. Ct. at 931. A plaintiff is a "person aggrieved" if she suffers a "definite violation of a private right, a private property interest, or a private legal interest." Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493, rev. denied, 405 Mass. 1204 (1989). See Marashlian, 421 Mass. 719, 721 (1996) ; Circle Lounge Grille, Inc. v. Bd. of App. of Boston, 324 Mass. 427, 430 (1949) ; Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995) (requiring a "plausible claim of particularized injury"). Abutters, as "parties in interest," are entitled to a rebuttable presumption that they are persons aggrieved. Watros, 421 Mass. at 111; Marrota v. Board of Appeals of Revere 336 Mass. 199, 204 (1957). To show an infringement of his or her legal rights, a plaintiff must demonstrate a particularized injury flowing from the zoning board's action that is special and different from the injury to the community at large. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 554 (1999); Butler v. City of Waltham, 63 Mass. App. Ct. 435, 441 (2005); Nickerson v. Zoning Bd. Of Appeals of Raynham, 53 Mass. App. Ct. 680, 682 (2002). The infringement must be more than speculative. Marashlian, 421 Mass. at 721-723.
Because Contartese is an abutter, she has presumptive standing to appeal the Zoning Board's decision to grant Mount Washington a variance. See G.L. c. 40A, § 11 (defining abutter as a "party in interest"); Denneny v. Zoning Bd. of App. of Seekonk, 59 Mass. App. Ct. 208, 212 (2003). "Person aggrieved" is not to be read narrowly. Marrota, 336 Mass. at 204. Nonetheless, the presumption of standing ends if the defendant offers evidence to rebut the plaintiff's standing. Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 376 (1988). If, as here, the defendants challenge the plaintiff's standing, the question of standing is decided on "all the evidence, with no benefit to the plaintiff from the presumption." Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992).
In reviewing Contartese's standing based on all the evidence, this court is not required to determine whether her allegations are meritorious, but rather whether she has put forth credible evidence to substantiate her allegations. Marashlian, 421 Mass. at 721 ; Denneny, 59 Mass. App. Ct. at 211-212 ; Bedford, 25 Mass. App. Ct. at 377-378. Credible evidence has both a qualitative and quantitative component. Butler, 63 Mass. App. Ct. at 441. Quantitatively, the plaintiff must provide specific factual support for each claim of particularized injury. Marashlian, 421 Mass. at 724 ; Butler, 63 Mass. App. Ct. at 441. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the Zoning Board's action. Any harm must be definite and material. Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619, 622, rev. denied, 417 Mass. 1102 (1994). Conjecture, personal opinion, speculation, and hypothesis are not sufficient. Butler, 63 Mass. App. Ct. at 441; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688 (1994); Cohen, 35 Mass. App. Ct. at 622. Since the question of whether a plaintiff has made the requisite showing is a question of fact; a judge's finding that a person is not aggrieved will not be set aside unless it is clearly erroneous. Nickerson, 53 Mass. App. Ct. at 721-722 ; Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 476 (1986).
Contartese claims harm to the quiet enjoyment of her home, "permanent alteration to the unique quality of her real estate," diminished value of her property, and safety risks from increased traffic. She asserts that fumes from standing traffic in the teller line would be offensive, and alleges a loss of privacy because of the possibility that she would overhear cell phone conversations or banking transactions in the parking lot. She also claims that she would be harmed by the quality and reliability of the zoning districts now and in the future. The defendants assert that Contartese will not be harmed in any way by the addition of the drive-up teller, and that the neighborhood as a whole will benefit.
A defendant who challenges the standing of an abutter must produce evidence warranting a finding contrary to the presumed fact of standing on each basis of asserted standing which is legally cognizable. S tanderwick v. Zoning Bd. of Appeals of Andover, 64 Mass. App. Ct. 337, 341-342, 344 (2005), reversed on other grounds, 447 Mass. 20 (2006). Once a defendant offers evidence to rebut the presumption that the plaintiff has standing as an aggrieved person, the presumption ends and this court is required to decide the issue of the plaintiff's standing based on all the evidence. Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52, 54 (2005). The plaintiff must demonstrate, not merely speculate, that there has been some infringement of his or her legal rights. Butler, 63 Mass. App. Ct. at 441 (deciding that a showing of a particularized injury and "credible evidence" of a particularized injury have the same meaning); Sheehan, 65 Mass. App. Ct. at 54. Here, the burden of persuasion is on Contartese, since her standing has been challenged, and since the defendants have produced witnesses, expert testimony, and a number of studies rebutting her claims. "Even when positing legitimate zoning-related concerns . . . a plaintiff must nonetheless offer more than conjecture and hypothesis." Bavernik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 133 (1992).
Diminution of real estate values may be a tangible and particularized interest, Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 555, 559 (1992), and therefore a valid basis for a claim of standing under some circumstances. Increased noise can be a cognizable injury under the Zoning Enabling Act. Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912, 912 (2003) (upholding standing where abutters expressed concerns about light, noise, and privacy due to construction of two houses on lot zoned for one single family house). Loss of privacy may be cognizable to support a claim of standing. McGee, 62 Mass. App. Ct. at 931; Bertrand, 58 Mass. App. Ct. at 912 (finding standing where proposed building would be taller than plaintiffs' building, and within one foot of their windows, markedly decreasing their "light, air, view, and privacy"). Concerns about increased traffic and decreased parking may be sufficient to confer standing whether or not ultimately insufficient to defeat zoning relief on the merits. Marashlian, 421 Mass. at 723-724 (holding that plaintiff's concerns about traffic and parking because of the presence of a new hotel were sufficient to confer standing); Circle Lounge, 324 Mass. at 42.
In contrast, an interest in preserving the rural character of a neighborhood is not a legally cognizable interest for purposes of standing. Standerwick, 64 Mass. App. Ct. at 345. Additionally, there is no private right or interest in protecting the integrity of the zoning district or enforcing the zoning by-laws. Denneny, 59 Mass. App. Ct. 208, 215-216 (2003). Moreover, "[a] separate and essential element of standing" is "whether the plaintiff's concerns are special and different from those of the rest of the community." Nickerson v. Zoning Bd. Of Appeals of Raynham, 53 Mass. App. Ct. 680, 682 (2002).
To prevail as an aggrieved party, Contartese's alleged harms must be within the "scope of concern" of the zoning laws. Circle Lounge, 324 Mass. at 429-430; Harvard Square Defense Fund, 27 Mass. App. Ct. at 495. Here, Contartese asserts that she has an interest in having the district to which the zoning variance applies preserved. The Appeals Court has determined, however, that plaintiffs who occupy a different zoning district could not have an interest in preserving the zoning district occupied by the defendants, since "parties in interest" must occupy the same zoning district to demonstrate "a legitimate interest in preserving the integrity of the district." Harvard Square Defense Fund, 27 Mass. App. Ct. at 495. See also Owens v. Board of Appeals of Belmont, 11 Mass. App. Ct. 994, 995 (1981) (holding that property within a materially different type of zoning district than the one to which the variance applies may be outside the scope of concern of the zoning provisions at issue). Failure to consider suitability to the neighborhood scheme, and failure to conform to the layout of the local neighborhood, are not legally cognizable injuries from a decision of a zoning board. Standerwick, 64 Mass. App. Ct. at n. 15, citing Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. at 554. Here, Contartese's property is in a multi-family residential district, while Mount Washington's property, actively now being used as a bank, is in a business shopping district. Thus, Contartese's claim that she wants to protect the integrity of the Saint Vincent's Neighborhood District is not legally cognizable to confer standing.
Contartese alleges that the proposed drive-up window will diminish the market value of her property. Contartese has not put forth any credible evidence that her property's value would be harmed by the installation of a drive-up teller window. The only evidence she has offered is an unsubstantiated statement of a residential real estate appraiser's personal opinion, who did not perform a market analysis or evaluate comparable sales data, but simply relied on "common wisdom" and his personal opinion of potential buyers' "perceptions," precisely the sort of speculation which the standing requirements of G.L. c. 40A, § 17 were intended to avoid. The Supreme Judicial Court has recognized that residential property adjacent to a commercial district is likely to be less valuable than residential property not contiguous to a business area. Sullivan v. Board of Appeals of Belmont, 346 Mass 81, 84 (1963). As both of the real estate appraisers this court found credible determined, Contartese's location next to a neighborhood shopping district, rather than Mount Washington's intended addition of a drive-up teller window, is the commercial influence which affects her residential property's value. Since, as two experts testified, the market value of Contartese's property would not be impacted by a drive-up window, she does not have standing to assert damages based on the diminished value of her property.
Even if Contartese had produced sufficient credible evidence showing the potential diminution in her property value, her claim on the issue of market value would not be legally cognizable. Zoning legislation "is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live." Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495, 503-504 (1940). Although Contartese relies on the Appeals Court's ruling in Standerwick, 64 Mass. App. Ct. at 344, to assert that diminution in property values alone is sufficient grounds for standing, the Supreme Judicial Court reversed the Appeals Court's holding this year. The Supreme Judicial Court explained that diminution in property values could be a cognizable personal injury only if the "attendant legal interest that the zoning scheme at issue protected" was a cognizable legal interest. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 31 (2006). "To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision. A developer may conclusively demonstrate, for example, that an increase of traffic will not adversely impact plaintiffs or their property such that plaintiffs are unable to establish a traffic-related 'aggrievement.' . . . But a real estate appraiser may then opine that the increase in traffic will nevertheless cause a property to diminish in value. . . . To confer standing in such circumstances would permit any plaintiff to make an 'end run' around the rigorous standing requirements we have consistently recognized." Standerwick, 447 Mass. at 32 (noting that in other cases such as Tsagronis, 33 Mass. App. Ct. at 59, where diminution in property value was found sufficient to confer standing, the zoning interest being protected was to prevent further construction in a district in which the existing development was already more dense than the applicable zoning regulations permitted).
Contartese also alleges that she will be harmed because lights from cars in the teller line may shine through her windows, even though the teller window would be operational only during normal weekday banking hours. The Appeals Court has found, however, that a speculative assertion that more lights from automobiles might shine into a plaintiff's home is not a plausible claim of a definite violation of a private right or interest, but rather the type of "uncorroborated speculation" sought to be avoided by the standing requirements of G. L. c. 40A, § 17. See Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995). Thus, Contartese has failed to assert a legally cognizable claim on this ground.
Contartese further alleges that the view from the front of her property will be less desirable if the drive-up teller window is installed. Although Contartese has not offered any evidence to support this claim, concerns about the visual impact of a structure are generally not sufficient to confer standing. Sheehan, 65 Mass. App. Ct. at 54. Any aesthetic deterioration may or may not be specific and personal to Contartese, but it is beyond the scope of interests protected by the zoning act. Denneny, 59 Mass. App. Ct. at 213. Thus, Contartese's claims of a less aesthetically pleasing view are not a legally cognizable injury.
Contartese claims harm from increased noise and traffic on Athens Street, a narrow street with narrow sidewalks. Increased traffic and decreased availability of parking are concerns within the scope of the zoning laws. Marashlian, 421 Mass. at 723. Here, however, a detailed and credible traffic study found that the impact on Contartese's property from additional cars leaving the drive-up window and exiting onto Athens Street would be negligible. Moreover, a detailed study of ambient noise in the area showed that ambient noise would not increase because of cars at the teller window, and that the most significant source of noise near Contartese's house is the MBTA buses on West Broadway. There are no others studies in the record which suggest a different conclusion. To support her allegations regarding increased traffic, Contartese relies on the speculative opinion of an appraiser who stated that it is "common wisdom," without any supporting data, that any increased traffic at all would lower Contartese's property value because of potential buyers' "perceptions."
Contartese also expresses concerns that cars might exit the teller window, illegally turn left, and accidentally drive into the front of her house. In support of these allegations, Contartese offers several newspaper articles from other cities in the Commonwealth where cars traveling at high speeds crashed into dwellings. Public safety may be a legitimate goal of the zoning code. Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657, 660 (2001). Nonetheless, testimony at trial, as well as the proposed plans, established that cars would exit to the east of Contartese's house and turn right, heading away from her property. Speculation on the possibility of a car exceeding the speed limit while driving over the proposed speed bumps, making an illegal left turn, and then accidentally running into her house, is too remote a possibility to be legally cognizable.
Mount Washington is not proposing to expand its building or change the basic use of its property. A bank is already in operation on Mount Washington's property at 428-430 West Broadway. Mount Washington and local political leaders assert, as the Zoning Board found, that the ability to use the drive-up window will increase the number of parking spaces available to the public in the surrounding area, because a portion of existing customers will no longer need to park to conduct banking business. Moreover, a desire to reduce traffic and parking congestion underlie Mount Washington's decision to request the variance. Contartese's claims regarding increased traffic on Athens Street, which this court has found would increase insignificantly, are similar to the plaintiff's claim in Rinaldi, where the Appeals Court found that the addition of a sixth dwelling to a building containing five dwellings, in a densely populated urban area, was too trivial a claim and not a clearly cognizable injury to a private right. Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657, 659-660 (2001).
Likewise, the Appeals Court determined that a finding of credible evidence of a particularized injury would have been clearly erroneous where a traffic expert had visited the plaintiff's property six times to observe traffic flow, and had observed that traffic reached to the plaintiff's driveway on three occasions, but had performed no study or calculation to determine queue lengths or the duration of the queues. The Court held that even if the evidence was qualitatively sufficient that the plaintiff would be harmed by installation of a traffic signal, it did not support a claim that the traffic signal would impact the plaintiffs' ability to leave their driveway during peak hours. The traffic expert found that the queues would extend west 275 feet or less 95% of the time, and the plaintiffs' driveway was 380 feet west of the proposed signal. Butler, 63 Mass. App. Ct. at 442. The Court noted that common sense also suggested that traffic queues would likely be shorter and that there would be less congestion since traffic would be more orderly, even though testimony was divided at trial on whether or not additional traffic would be created. Butler, 63 Mass. App. Ct. at 443.
Here, Contartese speculates that pedestrians walking in the street instead of on the narrow sidewalks along Athens Street might risk injury if cars exiting the drive-up window do not wait for them to leave the street. She also asserts, without any foundation, that cars will be backed up in the teller line while attempting to exit onto Athens Street, although evidence indicates that a car would leave the teller window and attempt to turn onto Athens Street every 2 minutes and 45 seconds during banking hours. Contartese's speculations regarding potential harms from increased traffic are too remote and insubstantial to constitute a legally cognizable claim of specific personal injury.
Morever, Contartese has not provided any evidence showing that her claims regarding increased traffic on Athens Street are peculiar to her, and differ from the owners of the other two properties in the same rowhouse. Contrast Butler, 63 Mass. App. Ct. at 438 (finding fact peculiar to one plaintiff on traffic issue because of length of time he spent waiting in his own driveway to enter the road, where only one of several plaintiffs alleged this specific issue but all alleged concerns about increased traffic). It is undisputed that several of Contartese's neighbors initially joined this action, alleging identical concerns about traffic, noise, and reduced property values. Contartese's claims are therefore not unique. After considering all the evidence, this court finds that Contartese has not offered more than unsubstantiated opinions as to the potential negative consequences of increased traffic from Mount Washington's proposed teller window. Thus, Contartese has not met her burden of providing quantitatively and qualitatively credible evidence supporting her allegations of harm from increased traffic.
Since Contartese has not provided sufficient evidence to support her claims of harm from traffic, noise, and diminution in value of her property, she does not have standing on these issues. She has also provided no credible evidence to support her claims of harm from lack of privacy, aesthetic, or safety concerns. Furthermore, she has no standing to assert an interest in preserving the integrity of the zoning districts. "Standing is the gateway through which one must pass en route to a decision on the merits." Butler, 63 Mass. App. Ct. at 440-441. Because Contartese has failed to establish her standing as an aggrieved person under the zoning laws, this court must dismiss all counts of her claim.
The Zoning Board's Decision to Approve the Variance
Even if Contartese had established her standing as a person aggrieved, she would still not prevail in overturning the Zoning Board's decision to grant Mount Washington a variance for the drive-up window. In order to uphold the Zoning Board's decision, this court must independently find that all conditions relative to granting of the variance have been met. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308, 311 (1973). See Shopper's World, Inc. v. Beacon Terrace Realty, Inc., 353 Mass. 63, 67 (1967) (board must set forth substantial facts that "rightly can move an impartial mind, acting judicially, to the definite conclusion reached"). The Zoning Board must provide specific findings supporting its conclusions, and avoid the "common vice of parroting the statutory standards for a grant of a special permit in lieu of findings." Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152, 159 (1992).
Under St 1956, c. 665, § 9, the Zoning Enabling Act, the Zoning Board may grant a variance only "where, owing to conditions especially affecting such parcel or such building, but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of such zoning regulation would involve substantial hardship to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of such zoning regulation, but not otherwise."
Article 7 of the Boston Zoning Code, § 7-3 requires three prerequisites for granting a variance. First, the Board must find that there are special circumstances or conditions applying to the land or structure for which the variance sought, and describe these conditions in the findings. These circumstances may include narrowness, shallowness or shape of the lot or exceptional topographic conditions, peculiar to the land or structure but not to the neighborhood. The Zoning Board must determine that circumstances are such that these conditions would deprive the applicant of the reasonable use of the land or structure if the zoning code were applied. Second, the Zoning Board must describe the reasons for the practical difficulty and "demonstrable and substantial hardship," so that granting the variance is necessary for reasonable use of the land or structure, and the variance is the minimum variance which will accomplish this purpose. Third, the Zoning Board must determine that granting the variance will be in harmony with the general purposes and intent of the zoning code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
The requirement that the Zoning Board make specific findings supports informed judicial review of their merits. Prusik v. Board of Appeal of the Building Dept. of the City of Boston, 262 Mass. 451, 458 (1928). The Board must describe "substantial facts which rightly can move an impartial mind acting judicially to the definite conclusion reached." Zoning variances should be granted "sparingly" so as not to destroy the purposes and utility of the zoning code. The 30 Joy Street Condominium Ass'n v. Board of Appeal of Boston, 427 Mass. 485, 489 (1998). The applicant retains the burden of proving the entitlement to a variance before this court, even if the applicant prevailed in front of the Zoning Board. Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 10 (1981).
Contartese alleges that the board did not make any findings before the variance was granted. Contartese's claims that the Zoning Board did not make any factual findings is not supported by the record. As discussed supra, this court has determined that the Zoning Board did make specific findings and described the factors on which it relied, in writing, for each of the three parts of Article 7, § 7-3(a), § 7-3(b), and § 7-3(c). Therefore, Contartese cannot prevail on her claim that the Zoning Board's decision is facially inadequate.
This court is not restricted to the evidence before the Zoning Board, and may consider any relevant evidence. On appeal, the Zoning Board's decision has no evidentiary weight, and is to be treated simply as the report of an administrative body. Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321 (1955). If this court finds any reason on which the Zoning Board can be fairly said to have relied, and that finding is within the standards of the zoning by-law, the Zoning Board's actions must be sustained, no matter what other reasons the Zoning Board may have given. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 356 (2001); S. Volpe Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 360 (1976). Because the Zoning Board could have written a more detailed or cohesive report is not enough to nullify its decision. The inquiry is whether the Zoning Board could have found facts sufficient to allow it to reach such a decision. Davis, 52 Mass. App. Ct. at 356-360.
In her claim regarding the requirements of Article 7, § 7-3(a), Contartese asserts, correctly, that inadequate lot dimensions, both in terms of frontage and lot size, do not generally qualify as satisfying the "shape" requirement of G.L. c. 40A, § 10. Whelan v. Zoning Bd. Of Appeals of Norfolk, 430 Mass. 1009, 1009 (2000); Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 332 (1993). Nonetheless, the Boston zoning code explicitly states that odd-shaped lots, such as Mount Washington's, do constitute a unique and peculiar condition. Contartese's reliance on the doctrine that two adjoining, non-conforming lots held in single ownership should be treated as one lot, if combining the lots avoids the nonconformity, is inapt. See Beckett v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96, 104 (1978) (noting the question is whether the sum of the components of the adjoining lots would meet the by-law); Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 132 (1972) (holding that where owner had received a deed combining two formerly separate parcels, owner could not attempt to artificially divide them to obtain a grandfathered non-conforming use exception, because to retain the exemption, the lots must retain a "separate identity"). Here, the issue is one of non-conforming use, not non-conforming size or setback requirements. Mount Washington does not have two parcels which when combined would permit it to construct a drive-up window. The parcel which Mount Washington proposes to use as the driveway for a drive-up teller has no separate, economically feasible use. Additionally, unlike the plaintiff in Lindsay, Mount Washington obtained its three parcels at separate times, in separate deeds; the lots are separately indicated on the assessors' maps and separately taxed. This court finds, as supported in the record, that special circumstances and conditions apply to the land on parcel 0601898002.
In discussing the requirements of Article 7, § 7-3(b), Contartese alleges that Mount Washington has not shown a substantial hardship, so the Zoning Board's decision to grant the variance does not comply with the intent and purpose of Section 9 of the Boston Zoning Act because it is arbitrary, capricious, and unsupported by evidence. Contartese contends that Mount Washington is not suffering economic hardship, since it has maintained a bank on its West Broadway property for more than 80 years. Contartese also contends that the property in question is being used as a parking lot, and that this is a viable use. Mount Washington states, however, as this Zoning Board found, and this court determined after viewing the site, that the lot in question is neither suitable for nor used as a parking lot, and that Contartese is referring to an adjacent lot which serves as employee parking. Moreover, the Supreme Judicial court has rejected "the proposition that a variance is unwarranted if any other possible use can be made of a site," upholding a determination that where other uses of the property were not economically feasible, the owners had shown a substantial hardship. Marashlian, 421 Mass. at 726.
Mount Washington asserts, as this court has found, that the inconvenience of traffic congestion and parking availability is a significant harm to its customer base. Mount Washington asserts that it is losing between five to ten customers per month, and that deposits have diminished from $140 million to $126 million, because customers are frustrated with the difficulty of parking and the congestion on West Broadway, and the length of time required to do simple withdrawals and deposits at Mount Washington's location on West Broadway. A number of local politicians and neighborhood groups have indicated their concerns that traffic and parking problems on West Broadway are exacerbated by customers double parking to use the Bank. Local representatives approached Mount Washington and proposed a teller window as a potential solution to the neighborhood congestion. Sufficient evidence exists to support the conclusion that Mount Washington has suffered, and continues to suffer, substantial hardship because of its inability to construct the drive-up window.
In considering the requirements of Article 7, § 7-3(c), Mount Washington's real estate experts, whom this court found credible, have demonstrated that there would be no effect on the value of Contartese's property if the drive-up teller window were to be installed. This court has found that traffic on Athens Street would increase negligibly if the drive-up teller window were constructed. City Council members and neighborhood residents testified at the Zoning Board's hearing that the drive-up window would be a benefit to the neighborhood, and would enhance safety and reduce traffic and parking congestion on West Broadway. Based on an examination of the Saint Vincent Neighborhood Zoning code, and testimony from the director of the Inspectional Services Division, this court determined that Mount Washington could, as of right, maintain a 24 hour ATM machine or a take-out restaurant on the property. This court finds that the Zoning Board did not abuse its discretion, and that granting the variance would be in harmony with the general purposes of the zoning code, including to reduce traffic and congestion, and that it would not be injurious to the South Vincent Neighborhood District to add a drive-up teller to an existing bank.
Because this court finds that Contartese does not have standing to challenge the Zoning Board's decision, it need not address the merits of the Zoning Board's decision to grant the variance. Nonetheless, given that, at trial, Contartese argued the merits of the Zoning Board's decision, this court has addressed the issues she raised, while declining to enter a ruling on the merits of the Zoning Board's decision to issue Mount Washington a variance.
ORDER
For the preceding reasons, in that plaintiff lacks standing to bring this action, it is hereby ordered that entry of judgment be made dismissing the plaintiff's complaint seeking judicial review under G.L. c. 40A, § 17.