Plaintiff 90 Exchange LLC, through its Manager Jonathan Bedard (Bedard), filed its Verified Complaint with the Essex Superior Court (Civil Action No. 7-2194) on November 16, 2007, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant City Council of the City of Lynn (the City Council) granting an amendment to a pre-existing special permit. [Note 1] The City Council filed its Answer and Jury Demand on December 5, 2007. [Note 2] This case was transferred to the Permit Session of the Land Court (08 PS 381683) on June 20, 2008, and a case management conference was held on August 15, 2008. The City Council and Defendant Mayo Group Development, LLC (Mayo) (together, Defendants) filed their Motion for Summary Judgment on March 16, 2009, together with supporting memorandum, Statement of Undisputed Facts, and Affidavits of Timothy N. Schofield, Esq. and Taran T. Grigsby, Esq. Plaintiff filed its Cross-Motion for Summary Judgment and Opposition to Defendants summary judgment motion on April 16, 2009, together with supporting memorandum, Concise Statement of Material Facts, and Affidavits of Bedard, George E. Richardson, Esq. and Gennadiy Itskin (Director of an adult day care center located at 80 Exchange Street). Defendants filed their Opposition to Cross-Motion on May 18, 2009, together with supporting memorandum. On June 8, 2009, Defendants filed their Motion to Strike Portions of the Affidavit of Bedard. Plaintiff filed its Opposition to Mayos Motion to Strike on June 23, 2009. A hearing was held on all motions on June 24, 2009, at which time all motions were taken under advisement. A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Mayos Motion to Strike Portions of the Affidavit is ALLOWED IN PART, as the following paragraphs of the Affidavit are hereby stricken: 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 40, 41, 42, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 59, and 60. [Note 3]
ORDERED and ADJUDGED that Plaintiff has provided little but speculation with no credible evidence, as to any of its alleged harms.
ORDERED and ADJUDGED that Plaintiff does not have standing in this case as a person aggrieved.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is DENIED, and Defendants Cross-Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
Deborah J. Patterson
Dated: November 16, 2009
[Note 1] Plaintiff filed an Amended Complaint on January 4, 2008, clarifying the status of Plaintiff.
[Note 2] The City Council filed a waiver of its demand for jury trial on January 27, 2009.
[Note 3] With respect to paragraph 13 of the Affidavit, relative to the fact that Locus is within 1500 feet of the Central Square Commuter Rail Station in Lynn, Defendants agreed at oral argument that this fact was probably true; with respect to paragraphs 57-59 of the Affidavit, Defendants have given undisputed affidavit evidence that there will be no roof deck on the building on Locus. As a result, the alleged harm of potential increased noise from such roof deck shall not be addressed by this court. It should be noted that the Affidavit speaks of the potential for noise.