CHARLES BROOKS, and GUY FARETRA and CRAIG D. FARETRA, as TRUSTEES OF C&G REALTY TRUST vs. BOARD OF APPEALS OF THE TOWN OF CHELMSFORD, JOHN BLAKE, JR., EILEEN DUFFY, JOHN COPPINGER, LEONARD RICHARDS, JR., WILLIAM J. GILET, SR., and JOEL LUNA, in their capacity as members of THE CHELMSFORD BOARD OF APPEALS, and CHELMSFORD HILLSIDE GARDENS, LLC

Plaintiffs Charles Brooks (“Brooks”) and Guy Faretra and Craig D. Faretra, as Trustees of C&G Realty Trust (the “Trust”) (together, “Plaintiffs”) filed their unverified Complaint on October 20, 2008, appealing pursuant to G. L. c. 40B, § 21 a decision of Defendant Board of Appeals of the Town of Chelmsford (the “ZBA”) approving a comprehensive permit (the “Comprehensive Permit”) issued to Defendant Chelmsford Hillside Gardens, LLC (“Hillside Gardens”). Hillside Gardens filed its Answer on November 7, 2008. A case management conference was held on December 15, 2008. [Note 1] Hillside Gardens filed a Motion to Dismiss Plaintiffs’ Claims pursuant to Mass. R. Civ. P. 12(b)(1) on April 15, 2009, together with supporting memorandum and Affidavit of Charles Emanouil. On April 21, 2009, Plaintiffs filed their Opposition. A status conference was held on April 24, 2009, at which this matter was scheduled for trial. A pre-trial conference was held on July 29, 2009. A site view and the first day of trial at the Radisson Hotel in Chelmsford, Massachusetts were held on October 26, 2009. At the completion of Hillside Gardens’ case, Plaintiffs filed a Motion for a Directed Finding, which this court denied. Hillside Gardens filed Proposed Findings of Fact on the same day. The second day of trial was held at the Land Court in Boston on October 27, 2009. Plaintiffs filed their Post Trial Brief on January 25, 2010, and Hillside Gardens filed their Post Trial Memoranda on February 4, 2010, at which time the matter was taken under advisement.

Testimony for Hillside Gardens was given by Peter Emanouil (principal of Hillside Gardens) and Joseph Peznola (“Peznola”) (civil engineer). Testimony for Plaintiffs was given by Charles Brooks (Plaintiff), Craig Faretra (Plaintiff), Guy Faretra (Plaintiff), and Thomas Houston (“Houston”) (engineer). Forty-eight exhibits were entered into the trial record, some in multiple parts.

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Hillside Gardens is the proposed buyer of property located at 311 Littleton Road, Chelmsford, Massachusetts (“Locus”) under a purchase and sale agreement (the “Purchase and Sale Agreement”) with Chelmsford 110 Holdings, LLC (“Holdings”) dated September 2007. Locus is a 4.96 acre parcel of land. [Note 2] Locus is zoned as Commercial Roadside under the Zoning Bylaws of the Town of Chelmsford (the “Bylaws”).

2. Pursuant to a letter dated February 8, 2008, the Department of Housing and Community Development notified Hillside Gardens that its application for designation as a “Local Initiative Program” was approved with respect to a residential project on Locus. Thereafter, on March 14, 2008, Hillside Gardens submitted an application to the ZBA for a comprehensive permit for a fifty-nine dwelling unit project on Locus, pursuant to G. L. c. 40B, §§ 20-23. This application was eventually modified to contain forty-four units (the “Project”), as reflected in the First Amended Application dated May 5, 2008.

3. Brooks is the owner of Brooks Precision Machines and three commercial condominiums, all located at 4 Kidder Road in Chelmsford (“Brooks Property”). Brooks Property is a direct abutter to the easterly side of Locus and is located within the Commercial Roadside zoning district under the Bylaws. Brooks Precision Machines manufactures defense and medical supplies inside the buildings on Brooks Property. Its operations typically begin at 6:00 A.M., but at times operates twenty-four hours a day.

4. The Trust is the owner of property located at 6 Kidder Road in Chelmsford (the “Trust Property”). The Trust Property is a direct abutter to the easterly side of Locus, and is located within the Commercial Roadside zoning district under the Bylaws. The Trust Property also abuts, and is located directly to the north of, Brooks Property. On the Trust Property, the Trust operates Chelmsford Crane Service, Inc. (“Chelmsford Crane”), a business providing equipment rental (consisting of mobile truck cranes and trucks) to the construction industry, marine and demolition contractors, and emergency rescue services. Chelmsford Crane typically operates from approximately 4:30 A.M. to between 4:30 P.M. and 7:00 P.M. At times it operates twenty-four hours a day, seven days a week. The Trust owns four cranes (three mechanical and one hydraulic) that are stored on the Trust Property and that are used primarily to load and unload trucks. The cranes extend from thirty-five feet to 250 feet. The cranes are usually stored in an “up” or vertically extended position, 100-150 feet extended, at a sixty to seventy degree angle.

5. The Town of Chelmsford has identified Locus as part of its housing plan for the construction of affordable residential housing. Low or moderate housing existing in the Town of Chelmsford does not exceed ten percent of the total housing units reported in the last U.S. census.

6. By letter dated May 14, 2008, the Town of Chelmsford Fire Prevention Department made several requests with respect to the Project relating to fire hydrants, driveway turning radii, sidewalks, and house numbers and related signage. This letter concluded by saying that “[t]his office would approve the plan with these conditions, . . .” By letter dated July 7, 2008, the Chelmsford Fire Prevention Department stated that it was informed by the Department of Public Safety, “as long as the crane is up to date on its annual inspection and the crane has been erected and inspected by a competent operator, the crane presents no undo hazard to the public.”

7. By letter dated May 19, 2008, the Chelmsford Water District stated, “The Chelmsford Water District has no concerns with this proposed 40B development.”

8. By letter dated May 20, 2008, the Town of Chelmsford Police Department (the “Police Department”) indicated that its Traffic and Safety Unit was concerned that the Project’s “plans do not indicate that any changes were made to address the inadequate sight distances to the left upon exiting the property due to the large tree and overgrowth of bush.” By letter dated June 13, 2008, the Police Department stated, “Mr. Emanouil has assured me that he will be removing the large tree and overgrowth of brush from the area of 311 Littleton Road. Based on this conversation, the Police Department has no additional safety concerns or issues with this site.” [Note 3]

By letter dated May 20, 2008, the Town of Chelmsford Department of Public Works provided comments, in part, with respect to the Project’s retaining walls, stormwater management plan, Massachusetts Highway Department permits, and sewer lines. [Note 4]

9. On October 2, 2008, by a unanimous vote, the ZBA issued the Comprehensive Permit for the Project, which incorporated, in part, the following findings:

10. The Project includes a six-foot high vinyl fence around the perimeter of Locus. Adjacent to Plaintiffs’ properties, this fence would be eight-feet high (with a four-foot wall underneath). Plaintiffs store trailers along the boundary line with Locus.

11. The Project’s stormwater design includes multiple underground infiltration basins, one of which is linked to a discharge pipe that directs flow across Brooks Property to an existing swale.

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Plaintiffs argue that the Comprehensive Permit is defective on several technical grounds, and that it is arbitrary, capricious and unreasonable. Hillside Gardens argues that Plaintiffs lack standing to challenge the Comprehensive Permit and that the Comprehensive Permit is not defective and not arbitrary, capricious, or unreasonable. I shall address each of these issues in turn.

Standing.

“Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, § 11. [Note 5] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). A presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). In order for a defendant to rebut the presumption of standing, a defendant must offer evidence “warranting a finding contrary to the presumed fact.” Id. If standing is properly challenged, standing is then decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marotta, 336 Mass. at 204. See also Marashlian, 421 Mass. at 721 (“A review of standing based on ‘all the evidence’ does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff”). Without the presumption, “individual . . . property owners acquire standing by asserting a plausible claim of 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 , 492-93 (1989). “To qualify for that limited class, a plaintiff must establish – by direct facts and not by speculative personal opinion – that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting that the plaintiff’s injury flowing from the board’s decision must be “special and different from the injury the action will cause to the community at large”). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721.

“Credible evidence” has both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. 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 board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.

Butler, 63 Mass. App. Ct. at 441.

Brooks and the Trust are both abutters to Locus and, thus, are “parties in interest” as this term is defined in G. L. c. 40A, § 11, and have presumed standing to challenge the Comprehensive Permit. Plaintiffs alleged harms of noise, smell, traffic, lighting, safety concerns, and stormwater runoff adjacent to Locus. In arguing that commercial and residential uses are incompatible with one another, Plaintiffs allege that these harms emanating from their properties would present problems for the residential use of Locus, thereby raising their insurance premiums and causing an attractive nuisance for the residents of Locus. [Note 6], [Note 7]

As a result of Plaintiffs’ presumed standing, the burden shifts to Hillside Gardens to produce evidence that rebuts the harms alleged by Plaintiffs. Hillside Gardens asserts that the Town made a zoning determination that Locus was a proper location for a 40B project, and that the complaint by Plaintiffs did not relate to the Project, but instead to the Town’s determination of the zoning of this area in general. As a result, Hillside Gardens reasons, Plaintiffs’ concerns are neither particularized harms for Brooks Property or the Trust Property, nor are they harms caused by Hillside Gardens.

In rebutting Plaintiffs’ presumed standing, Hillside Garden argues, and this court agrees, that Plaintiffs’ asserted harms, but for their concerns related to stormwater runoff, relate to Plaintiffs’ conduct on their respective properties; such harms are not caused by the Project. In this context, the essence of Plaintiffs’ alleged “harms” is that the Project’s residents will object to the ongoing industrial use on Brooks Property and the Trust Property. These sorts of claims fail to confer Plaintiffs standing to object to the Comprehensive Permit. First, Plaintiffs provide no evidence to support these allegations. Their only expert, Houston, supplied generalized testimony without any independent testing or analysis. Moreover, Plaintiffs’ fear of how the Project’s residential nature will mesh with Plaintiffs’ industrial use are generalized harms of public safety (as opposed to particularized harms to Plaintiffs’ properties) that are speculative at best, and insufficient to confer standing. See Barvenik, 33 Mass. App. Ct. at 132; Butler, 63 Mass. App. Ct. at 440. Finally, Plaintiffs’ allegations are at odds with the reports of various Town boards that attest to the adequacy and safety of the Project.

With respect to stormwater concerns, Hillside Gardens successfully rebuts Plaintiffs’ presumed standing with the testimony of its engineering expert, Peznola. Peznola, referencing the Comprehensive Permit in addition to Hillside Garden’s stormwater reports and the Town’s peer review, established that the Project complied with the Town’s stormwater requirements in addition to those imposed by the Massachusetts Department of Environmental Protection. Peznola concluded that the Project would not adversely effect Plaintiffs. As Hillside Gardens has successfully offered evidence that “warrant[s] a finding contrary to the presumed fact,” Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003), the ultimate question of Plaintiffs’ standing shall be decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marotta, 336 Mass. at 204. While this court may not weigh the testimony of the parties’ respective experts, Michaels v. Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 453 (2008), “[i]n this context, standing becomes, then, essentially a question of fact for the trial judge.” Marashlian, 421 Mass. at 721.

As such, whether this court may proceed to the merits of the Comprehensive Permit hinges upon whether Plaintiffs have asserted a plausible claim of stormwater injury, as supported by “credible evidence.” Marashlian, 421 Mass. at 721. The Trust admits that it did no independent study on the Project’s stormwater runoff. Rather, Plaintiffs’ expert (Houston) simply referenced the technical data contained within the reports prepared by Hillside Gardens. [Note 8] Based on the higher elevations and locations of the Project’s stormwater basins, as compared to Plaintiffs’ properties, Houston stated that it was “likely” that Plaintiffs’ properties would be adversely impacted by increased groundwater elevations caused by the Project. [Note 9] However, this conclusion is not adequate to satisfy Plaintiffs’ burden to establish a plausible injury with credible evidence.

Most of Houston’s trial testimony concerned the cranes stored on the Trust Property. In the brief testimony that he provided regarding the strormwater design of the Project, he simply noted the relative elevations and locations of the Project’s proposed underground drainage structures as well as the maximum volume of water that one basin was designed to accommodate. Based on this information, Houston concluded that Plaintiffs’ properties were “likely” to be adversely impacted by increased groundwater elevations. Even so, Houston failed to explain why the Project’s layout would likely result in increased groundwater. In the language of Butler, while Houston arguably provided quantitative evidence by cross-referencing the Project’s drainage design specifics, he failed to furnish a qualitative component on which this court “could rely to conclude that the claimed injury likely will flow from the board’s action.” Butler, 63 Mass. App. Ct. at 441. As such, his “[c]onjecture, personal opinion, and hypothesis are therefore insufficient.” Id.

Houston also alleged that there was no easement for a stormwater discharge pipe running from Locus onto an existing swale on Brooks Property. However, on cross-examination, he admitted that he saw no evidence that the swale was newly constructed, nor had he reviewed any site or subdivision plans related to Brooks Property or titles to either Locus or Brooks Property. In addition to the fact that Plaintiffs failed to satisfy their burden to establish that Locus lacks the right to discharge water into the swale on Brooks Property, such a property right is unlikely the sort of interest that might confer standing under G. L. 40B. [Note 10]

As a result of the foregoing, I find that neither Brooks nor the Trust has standing to challenge the Comprehensive Permit. Consequently, this court lacks jurisdiction to address the issues pertaining to the validity of the Comprehensive Permit or the issues relative to whether the Comprehensive Permit was arbitrary or unreasonable.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: July 7, 2010