Contartese v. Mount Washington Bank
| Decision Date | 12 December 2006 |
| Docket Number | SUCV20036080 |
| Citation | 2006 MBAR 543 |
| Parties | Adriana Contartese v. Mount Washington Bank et al.[1] |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Troy, Paul E., J.
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.
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.[2] The building is a three-story residential structure and consists of three row houses, 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.
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...
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