VALLEY PROPERTIES, INC. vs. PINNACLE PARTNERS, INC., CHARLES WOTJAS, SUSAN E. CARTER, KIM J. MACKENZIE, JAMES P. GOOD, ROBERT C. MORSE, CHRISTOPHER T. GARRAHAN, AND JOHN S. GOFFIN, as they all are were members or alternate members of the PLANNING BOARD OF THE TOWN OF CHELMSFORD, and the PLANNING BOARD OF THE TOWN OF CHELMSFORD.

On August 27, 2001, Valley Properties Valley Properties, Inc. ("Valley Properties") filed an unverified Complaint (Misc. Case No. 274274) pursuant to G.L. c. 40A, § 17 and G.L. c. 249, § 4 seeking to annul three Special Permits (the “Landscaping Special Permit,” the “Major Business Complex Special Permit,” and an Off-Street Parking and Loading Special Permit [“Parking Special Permit 1”]) and a Site Plan Approval (the “Site Plan Approval”) granted by Defendant Planning Board of the Town of Chelmsford ("Planning Board") to Defendant Pinnacle Partners, Inc. ("Pinnacle") for the construction of a Super Stop & Shop facility (the "Project") on a parcel of land located at 299 Chelmsford Street (being the intersection of Chelmsford Street (Route 110), Route 3 and Glen Avenue), Chelmsford, Massachusetts ("Locus"). On September 7, 2001, Valley Properties filed an unverified Complaint (Misc. Case No. 274535) pursuant to G.L. c. 40A, § 17 seeking to annul a Special Permit granted by the Zoning Board of Appeals of the Town of Chelmsford ("ZBA") to Pinnacle for the construction of the Project (the “ZBA Special Permit”). Pinnacle filed an Answer to the Complaint filed in Misc. Case No. 274274 on September 24, 2001. On that same day, Valley Properties filed a Motion to Consolidate both actions, which was allowed by this Court (Lombardi, J.) on September 28, 2001.

On December 23, 2003, the parties filed a Joint Pre-Trial Memorandum in which the parties agreed upon certain facts and exhibits. [Note 1] A view was held on April 28, 2004, and on the same day a three day trial commenced before this court (Sands, J.) at the Land Court in Boston. On August 27, 2004, Valley Properties and Pinnacle each filed a Post-Trial Brief, and at that time this case (Miscellaneous Case Nos. 274274 and 274535) went under advisement. A decision (“Decision I”) was issued on January 10, 2006, affirming the Site Plan Approval, the Landscaping Special Permit and the Major Business Complex Special Permit issued by the Planning Board, and the ZBA Special Permit issued by the ZBA for the construction of the Project (but remanded the Landscaping Special Permit and the Major Business Complex Special Permit to the Planning Board to make findings consistent with Decision I), and remanding Parking Special Permit 1 to the Planning Board. [Note 2] Upon remand, the Planning Board was to determine the number of parking spaces required for the Project under Article V, Section 195-17 of the By-law, and to determine whether a special permit for parking was necessary and, if so, warranted for the Project under the requirements of Article V. The Planning Board granted a new Off-Street Parking and Loading Special Permit (“Parking Special Permit 2”) by decision dated August 30, 2006, which was filed with the Chelmsford Town Clerk on September 1, 2006.

Valley Properties filed an unverified Complaint (Miscellaneous Case No. 329694) on September 21, 2006, appealing, pursuant to G. L. c. 40A, § 17, Parking Special Permit 2 granted by the Planning Board to Pinnacle. Parking Special Permit 2 granted a waiver of the parking requirements under Article V, Section 195-18 (A) of the Town of Chelmsford Zoning By-law ("By-law") in connection with the construction of the Project on Locus. This case was consolidated with the two earlier cases on October 13, 2006, following a case management conference of the same day.

On February 1, 2007, the parties filed a Joint Pre-Trial Memorandum in which the parties agreed upon certain facts and exhibits. A view was held on March 28, 2007, and on the same day a two day trial commenced before this court (Sands, J.) at the Land Court in Boston. On July 20, 2007, Valley Properties and Pinnacle each filed a Post-Trial Brief, and this case went under advisement at that time. A decision (“Decision II”) of today’s date has been rendered.

In accordance with Decision I and Decision II it is:

ORDERED and ADJUDGED that Valley Properties has standing.

ORDERED and ADJUDGED that Pinnacle's calculation relative to Parking Special Permit 1 under Section 195-17 of the By-law, as testified to by Stephen Stapinski and the Town of Chelmsford Building Inspector, is not reasonable.

ORDERED and ADJUDGED that, under Decision I, this court cannot affirm Parking Special Permit 1.

ORDERED and ADJUDGED that the buffer strip along the eastern and southern boundaries of Locus meets the requirements of Article IX, Section 195-42 for the Landscaping Special Permit.

ORDERED and ADJUDGED that the Planning Board did not act in an arbitrary, capricious, or unreasonable manner, nor base its decision on a legally untenable ground, in granting the Landscaping Special Permit.

ORDERED and ADJUDGED that Pinnacle's evidence shows that the Project will not cause a net increase of runoff above current flows and that the design capacity of the receiving system of the runoff from the Project will not be exceeded pursuant to Section 195-57 (B) of the By-law.

ORDERED and ADJUDGED that pursuant to Article XIX, Section 195-103, of the By-law the evidence shows that any adverse impacts of traffic generated by the Project do not outweigh the overall benefit the Project will have on the neighborhood, by improving aesthetics, drainage, and the use of Locus.

ORDERED and ADJUDGED that the Planning Board did not act in an arbitrary, capricious, or unreasonable manner, nor base its decision on a legally untenable ground, in its approval of the Major Business Complex Special Permit pursuant to Article XI, Section 195-57, and Article XIX, Section 195-103 (B) of the By-law.

ORDERED and ADJUDGED that there was not anything improper relative to the ex parte meeting between Planning Board members Kim MacKenzie and Susan Carter Sullivan and Pinnacle’s attorney in connection with the landscaping, elimination of a loading dock, and the reduction of the square footage of the Project.

ORDERED and ADJUDGED that the adverse effects of the Project will not outweigh its beneficial impacts to the town or the neighborhood.

ORDERED and ADJUDGED that the ZBA met the requirements of Section 195-103(B) of the By-law in issuing the ZBA Special Permit.

ORDERED and ADJUDGED that the ZBA did not act in an arbitrary, capricious, or unreasonable manner nor base its decision on a legally untenable ground, by approving the ZBA Special Permit.

ORDERED and ADJUDGED that the Planning Board did not act in an arbitrary, capricious or unreasonable manner, nor base its decision on a legally untenable ground, in granting the Site Plan Approval.

ORDERED and ADJUDGED that Parking Special Permit 1 shall be remanded to the Planning Board to determine, consistent with Decision I, the number of parking spaces required for the Project under Article V, Section 195-17, and to determine whether a special permit for parking is needed and, if necessary, warranted for the Project under the requirements of Article V.

ORDERED and ADJUDGED that the Planning Board arrived at a legally tenable conclusion that 287 parking spaces will adequately serve the Project.

ORDERED and ADJUDGED that the evidence presented by Pinnacle at trial allowed the Planning Board to grant Parking Special Permit 2.

ORDERED and ADJUDGED that the Planning Board did not violate the By-law or act beyond its discretion in granting Parking Special Permit 2.

ORDERED and ADJUDGED that the Planning Board did not act in an arbitrary, capricious or unreasonable manner, nor base its decision on a legally untenable ground, in granting Parking Special Permit 2.

By the court. (Sands, J.)