LOWE'S HOME CENTERS, INC. vs. TOWN OF AUBURN PLANNING BOARD and DAVID DELOLLIS, PHILIP TULLY, RONALD BROOKS, DANIEL CARPENTER, and DAVID DOHERTY, in their capacity as members of the Town of Auburn Planning Board

Plaintiff Lowe’s Home Centers, Inc. (“Lowe’s”) filed its unverified complaint in Permit Session Case No. 352453 on August 8, 2007, appealing, pursuant to G. L. c. 40A, § 17 and G. L. c. 185, § 3A, Defendant Town of Auburn (the “Town”) Planning Board’s (the “Planning Board”) denial of three site plan applications (the “Site Plan Denials”) and two earth removal special permit applications (the “Special Permit Denials”) relating to property located at 614 Southbridge Street in Auburn, Massachusetts (“Locus”). The Site Plan Denials and Special Permit Denials were dated July 19, 2007 by the Planning Board. A case management conference was held on September 25, 2007.

Simultaneously with this appeal, Lowe’s appealed the Site Plan Denials to the Town of Auburn Zoning Board of Appeals (the “ZBA”). On October 12, 2007, the ZBA filed a decision with the Town Clerk (the “ZBA Decision”) that reversed the Site Plan Denials and approved the site plan applications.

On November 1, 2007, three neighbors of Locus, Gary Lemerise, Diane Bruke, and Mary Ann Anderson (the “Abutters”), filed their unverified complaint in Permit Session Case No. 358291, appealing, pursuant to G. L. c. 40A, § 17, the ZBA Decision. Also on November 1, 2007, the Planning Board filed its unverified complaint in Permit Session Case No. 358322, appealing, pursuant to G. L. c. 40A, § 17, the ZBA Decision. On November 29, 2007, a status conference was held for Permit Session Case No. 352453 and a case management conference was held for Permit Session Case No. 358291 and Permit Session Case No. 358322. In a post-hearing order of the same date, the three cases were consolidated.

On January 15, 2008, the Planning Board and the Abutters filed a Joint Motion for Summary Judgment for all three cases. On March 21, 2008, Lowe’s and the ZBA filed a Joint Cross-Motion for Summary Judgment and Joint Opposition to the Motion for Summary Judgment filed by the Planning Board and the Abutters. [Note 1] A summary judgment hearing was held on March 26, 2008, at which time the parties’ motions for summary judgment were taken under advisement. By decision dated December 5, 2008 (“Land Court Decision 1”), this court found that (1) the ZBA lacked jurisdiction to hear the appeal of the Site Plan Denials and the ZBA Decision had to be reversed; (2) this court lacked jurisdiction to hear an appeal of the Site Plan Denials under G. L. c. 40A, § 17, but the appeal was properly brought before the permit session of the Land Court in accordance with G. L. c. 185, § 3A; (3) the Site Plan Applications proposed a use that was permitted as-of-right in a Highway Business (“HB”) District; and (4) the Town of Auburn Zoning Bylaw (the “Bylaw”) does not require Lowe’s to obtain an earth removal special permit as a prerequisite to site plan approval for a use as-of-right. Because the Planning Board failed to address the Site Plan Applications within the legal framework of an as-of-right use, the Site Plan Denials were remanded to the Planning Board to take action consistent with Land Court Decision 1. The Planning Board held a remand hearing and issued a decision on January 27, 2009, approving the Site Plan Applications (the “Site Plan Approvals”) with sixty-four conditions (the “Conditions”).

Lowe’s filed its unverified complaint in Permit Session Case No. 393505 on February 13, 2009, appealing the Site Plan Approvals. On February 27, 2009, the Abutters, Lowe’s, and the ZBA filed a Stipulation of Dismissal with Prejudice relative to Permit Session Case No. 358291. A pre-trial conference was held on April 1, 2009, at which the attorneys for the Planning Board filed a motion to withdraw as counsel. A status conference was held on April 24, 2009, at which the Chairman of the Planning Board, the Town Accountant, the Vice-Chair of the Board of Selectmen, and the Town Administrator were present, in addition to counsel for the Planning Board and Lowe’s. A Motion to Consolidate the three remaining cases (Permit Session Case Nos. 352453, 358322, and 393505) was allowed and the Motion for Leave to Withdraw as counsel for the Planning Board was allowed. By letters dated April 28, 2009, and April 29, 2009, the Planning Board advised this court that the Board of Selectmen had voted not to continue with the litigation.

On May 28, 2009, Plaintiff submitted the written pre-filed direct testimony of Plaintiff’s witnesses Lawrence Lepere and Edward B. Boiteau together with a Revised Exhibit List and Chart of Conditions. A site view and the first day of trial at the Land Court in Boston was held on June 4, 2009. [Note 2] The second day of trial was held in the Land Court in Boston on July 22, 2009. After the completion of the trial, Plaintiff filed its Motion for Entry of Default against the Planning Board, which was allowed, and Default Judgment, which was denied. On October 6, 2009, Plaintiff filed its Proposed Findings of Fact, Proposed Conclusions of Law, and Affidavit of Lawrence Lepere Amending and Correcting Testimony Given at Trial. At that time this matter was taken under advisement.

Trial testimony was given by Plaintiff’s witnesses Lawrence Lepere (site development manager for Plaintiff), Edward Boiteau (civil engineer for Plaintiff), and Michael Burke (environmental manager for Plaintiff). Plaintiff submitted 108 exhibits, but did not rely on all of them at trial.

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

1. Locus consists of three adjoining parcels of land in Auburn, Massachusetts: two parcels (“Parcel 1” and “Parcel 2”) owned by Lowe’s and containing a total of seventeen acres, and one parcel (“Parcel 3”) owned by the Massachusetts Turnpike Authority (“MTA”) and containing 1.84 acres. Parcel 1 is the former site of a motel, office, and conference center. A bank building currently exists on Parcel 2.

2. The Abutters own properties abutting Locus on the west.

3. On April 27, 2006, Lowe’s received an Order of Conditions from the Auburn Conservation Commission under the Wetlands Protection Act, G. L. c. 131, § 40.

4. On July 18, 2006, Lowe’s submitted three Site Plan Approval Applications (the “Site Plan Applications”) to the Planning Board pursuant to Section 9.4 of the Bylaw, which states: “The Planning Board may approve a Site Plan in accordance with the standards of this by-law.” [Note 3] Section 9.4.1 of the Bylaw continues:

Applicability – Site Plan Approval shall be required in all instances for the development of land in Section 3, Table of Principal Uses as requiring Site Plan Approval and for all accessory uses thereto. Additionally, any expansion of an existing use which now requires Site Plan Approval shall be subject to the requirements of this by-law. Furthermore, any development that requires a Special Permit, or a Variance authorizing a use not specifically allowed by the By-law, is also subject to a Site Plan Approval by the Planning Board, unless this requirement is waived by the Planning Board. The requirements that follow for granting Site Plan Approval may be waived in part or in total at the discretion of the Planning Board.

The site plan (the “Site Plan”) filed with the Site Plan Applications proposed a development (the “Development”) at Locus that would span all three parcels. All three Site Plan Applications were filed for retail store uses: Parcel 1 as Retail Store - Home Improvement Center; Parcel 2 as Retail/Bank Building; and Parcel 3 as parking lot for retail store and park and ride facility for the MTA. As shown on the Site Plan, Lowe’s proposes to build a retail establishment on Parcel 1 consisting of a 168,554 square foot structure, including a 136,358 square foot building and a 32,196 square foot attached garden center.

5. Locus is located within an HB District under the Bylaw. The Bylaw’s Table of Principal Uses allows a “retail store and sales” use within an HB District with site plan approval. A lumber yard is a prohibited use in an HB District.

6. Lowe’s is registered to do business in Massachusetts as a corporation in the business of “Retail Sales.” [Note 4] Lowe’s described its proposed use of Locus as “retail use (home improvement)” in the Special Permit Applications, as hereinafter defined, and the Site Plan Applications.

7. Section 3.8.1.2.3 of the Bylaw states that a special permit is not required for removing earth products not exceeding 500 cubic yards when incidental to and in connection with the construction of a building. Construction of the Development in accordance with the Site Plan would require blasting a ledge and removing earth in quantities substantially in excess of this threshold as described hereinafter.

8. Lowe’s submitted two Earth Removal Special Permit Applications (the “Special Permit Applications”) to the Planning Board on January 12, 2007, one each for Parcel 1 and Parcel 3. [Note 5] In the Special Permit Applications, Lowe’s sought approval to blast a large amount of the ledge on the northern, eastern, and western borders of Locus and to remove earth from Locus.

9. Before its first meeting with the Planning Board, Lowe’s planned to have a stenographer record all Planning Board meetings to maintain an accurate record. One Planning Board member refused to hear Lowe’s application if a stenographer were present. Faced with the possibility of not having a full board and not receiving a vote, Lowe’s did not record the meetings.

10. The Planning Board opened the public hearing on the Special Permit Applications on February 13, 2007. After several hearings, the Planning Board closed the public hearing on April 24, 2007.

11. The Planning Board voted 5-0 to deny the Special Permit Applications. The Special Permit Denials, filed with the Town Clerk on July 19, 2007, stated the reasons for denial of the Special Permit Applications: (1) the Planning Board had requested a buffer of fifty feet where Locus abuts residential property in order to minimize the adverse effects of earth removal and Lowe’s was unwilling to modify its plan accordingly; (2) the noise attenuation wall proposed along the north side of the building would not be high enough to block noise generated by HVAC units on the proposed building’s rooftop; [Note 6] and (3) the volume of earth to be removed was excessive.

12. The Planning Board voted 4-0 with one abstention to deny the Site Plan Applications. The Site Plan Denials, filed with the Town Clerk on July 19, 2007, stated the reasons for denial of the Site Plan Applications as follows:

The Site Plan Denials also stated as reasons for denial: Lack of Adequate Buffer; Noise Attenuation; Deficient Traffic Analysis; and Severe Traffic Impacts.

13. The Planning Board’s review of the Site Plan and Earth Removal Special Permit Applications included peer review. [Note 7] With respect to the Development, the following peer reviewers filed reports: Beta Group, Inc. (traffic impacts); Antonio Franco & Associates (lighting); Graves Engineering, Inc. (buffer zone and noise attenuation wall); Modeling Specialties (noise assessment); Beals and Thomas, Inc. (drainage, hydrology, landscaping, general site design). Additionally, Lowe’s submitted a peer review report on drainage and hydrology commissioned by the ZBA and prepared by Graves Engineering after the Planning Board indicated it would have hired Graves Engineering as its own expert.

14. On May 1, 2008, the Town of Auburn amended the Bylaw (the “New Bylaw”). The Town added three additional lighting requirements to the New Bylaw (the “New Lighting Requirements”), added an entire section on landscaping requirements (“Section 11”), and added a requirement that architecture demonstrate cohesive planning (the “Architecture Requirement”).

15. On February 20, 2009, Lowe’s agreed to fourteen of the sixty-four conditions established in the Site Plan Approvals, specifically Conditions 3, 4, 9, 12, 16, 19, 29, 30, 31, 44, 46, 56, 59, and 63. Also on this date, Lowe’s proposed compromise language and/or sought clarification of additional conditions. In a letter to this court dated April 29, 2009, Burney stated that the Planning Board had voted not to negotiate any of the Conditions.

16. The Site Plan Approvals acknowledge that the Planning Board looked to the New Bylaw in granting the Site Plan Approvals, stating that

Even assuming that the May 1, 2008 zoning changes are not strictly applicable to Lowe’s land, the Planning Board finds that these changes provide useful guidance as to the type of conditions that ought to be placed on a Site Plan under the pre-May 1, 2008 version of the Zoning Bylaw. The Planning Board has thus relied upon these changes to guide its decision-making on Lowe’s Site Plan.

17. Fifteen conditions are based on the New Bylaw. Conditions 8 and 10 incorporate the exact language of the Lighting Requirements. Conditions 34-43, 45, and 48 either incorporate the exact language of or are consistent with the language of Section 11. Condition 49 is consistent with the language of the Architecture Requirement.

A. General Conditions

18. Condition 1 requires that Site Plan Approval will not take effect until pending variance appeals have been disposed of and become final and enforceable. The Site Plan Approvals state that four variances that Lowe’s obtained are the subject of an appeal in Worcester Superior Court. The Site Plan Approvals further state that Lowe’s reported the appeal has been settled “in principle” but no final judgment dismissing the appeal had been entered.

19. Condition 2 requires Lowe’s to obtain permits and comply with all conditions and procedures related to dumpsters, storage of flammable liquids, waste oil, and propane as required by the Fire Department.

20. Condition 20 requires Lowe’s to obtain required permits and comply with all conditions required by the Board of Health and the “State Division of Sanitation.”

21. Condition 60 requires Lowe’s to comply with the terms and conditions of all special permits and variances and with all terms and conditions of the Order of Conditions issued by the Conservation Commission.

22. Condition 62 requires Lowe’s to maintain all entrances and means of egress in its store free of retail products, inventory or other obstructions that interfere with customer movement out of the store in accordance with the Massachusetts Fire Safety Code. Condition 62 also includes language copied directly from the State Fire Code. [Note 8]

23. Condition 64 states that the Site Plan Approvals will not take effect until both Site Plan Approvals and the approved plan are recorded in the Worcester South District Registry of Deeds (the “Registry”).

B. Nuisance Conditions

24. Lowe’s submitted a dust mitigation plan in response to Condition 5, which requires Lowe’s to ensure that no residue, dust or smoke is detectable beyond the property line. The plan requires Lowe’s to water down earthen areas where trucks will travel and put gravel on other areas so that trucks do not drive over earth to create dust. Lowe’s has dust mitigation plans on all its construction sites. The Planning Board never responded to Lowe’s request for clarification as to whether the dust mitigation plan was sufficient.

C. Lighting Conditions

25. Conditions 6-10 relate to light fixtures. Antonio Franco & Associates concluded that Lowe’s lighting plan provided adequate lighting for Locus and that abutting residential properties would not be impacted by the light plan. At the time of this peer review conclusion, there were no applicable standards required by the Bylaw. Subsequent to the Site Plan Approvals, Lowe’s sought clarification from the Planning Board as to whether Lowe’s proposed lighting designs were acceptable to fulfill Conditions 6, 7, and 8. Condition 7 requires Lowe’s to equip all facade lighting luminaires with a top visor to reduce or eliminate any up light above the horizontal plane of the building facade wall. Lowe’s provided the Planning Board with catalog cuts and design details of its proposed light fixtures, which included the possibility of ordering top visors to minimize up-light. The Planning Board never responded to the request for clarification nor did it respond to the request for approval of the light fixtures details.

D. Noise Attenuation Conditions

26. Conditions 11-18 and 32 relate to noise attenuation measures. Lowe’s retained a sub-consultant, Resource Systems Group (“RSG”), to conduct a noise study and analyze Lowe’s proposed operations and make recommendations to mitigate the effect of any noise from the site on abutting residences. Based on the RSG report, Lowe’s added a number of noise mitigation elements, including a noise attenuation wall, placing rooftop HVAC units in a way to limit noise detectable by observers in nearby residences, applying noise damping materials to certain machinery, and reducing noise from delivery truck backup alarms and horns.

27. Condition 11 requires Lowe’s to construct a noise attenuation wall before the commencement of any other site activities. Lowe’s requested clarification of Condition 11 from the Planning Board because landscaping and other construction work is necessary in order to prepare for constructing the wall. Lowe’s proposed modifying the condition to account for prefatory activities necessary in order to construct the wall. [Note 9] The Planning Board failed to respond to this request for clarification or to the proposed modification.

28. Condition 13 requires that the average sound level (LEQ) [Note 10] not exceed 51 A-weighted decibels (dBA) [Note 11] within the property of residents adjacent to Locus and authorizes the Planning Board or its designee to inspect Lowe’s site within 90 days after issuance of a Certificate of Occupancy and as warranted to ensure future compliance. Lowe’s proposed modification would amend Condition 13 to read:

The average sound level (LAEQ 1-hour) [Note 12] from all Lowe’s operational sources shall not exceed 51 dBA or the average ambient sound level (L90 as defined by DAQC), [Note 13] if greater at the time of the measurement, within the property line of the residents adjacent to the site. Lowe’s shall allow the Town’s designated code enforcement official [Note 14] to access the property reasonably to take sound measurements from time to time.

Lowe’s proposed modification includes taking into account the average ambient sound level within abutters’ property to account for the possibility that noise from sources other than Lowe’s could increase noise levels in the future at residential property lines. Lowe’s proposed modification also removes language that would have made the Planning Board the enforcement authority for Condition 13. The Planning Board failed to respond to Lowe’s request to consider the proposed modification.

29. Condition 14 requires Lowe’s to relocate the truck loading dock area from the northeast corner of its building to the western side of the building. The Site Plan Approvals state that Lowe’s proposed location for the loading dock would result in intermittent noise sources from loading operations being concentrated closest to the Abutters’ property. Relocating the truck dock was not discussed at any Planning Board public hearings, nor was it the subject of any peer review recommendations. Relocating the truck loading dock would require that the lumber area be relocated to the southeast corner of the building, right at the main entrance of Locus. The lumber area, where large trucks come to pick up lumber, involves a high level of truck activity. The main entrance is next to residential abutters’ property and is the only access point to Locus for all vehicles.

30. Condition 15 requires Lowe’s to use a noise damping compound on its trash compactor and submit to the Planning Board the details of the noise damping compound prior to construction. By letter dated March 13, 2009, Lowe’s submitted to the Planning Board technical details for the noise damping compound, VBD-10, that it planned to use. The Planning Board did not respond to Lowe’s letter. Lowe’s proposes modifying the condition to name VBD-10 as the noise damping compound. [Note 15]

31. Condition 17 requires that Lowe’s “emergency generator shall be exercised only during daylight hours.” Lowe’s requested clarification from the Planning Board as to whether the Planning Board meant “tested” when it used the word “exercised.” Lowe’s plans for its emergency generator to be used only in case of emergencies and for it to undergo short, weekly testing during daylight hours. Lowe’s agrees to Condition 17 if the word “exercised” is replaced with “tested.” The Planning Board did not respond to Lowe’s request for clarification.

32. Condition 18 requires that Lowe’s prohibit truck drivers’ discretionary use of truck horns in the rear or eastern side of the building. The RSG report specifically states that prohibiting discretionary use of truck horns is possible by posting signs or notifying drivers directly. Lowe’s agreed to take various measures, including posting signs, to prevent the discretionary use of truck horns and sought clarification from the Planning Board whether these plans were sufficient. Lowe’s requested clarification of Condition 18, stating that it would be impossible to prevent a truck horn ever to be blown on Locus. The Planning Board did not respond to Lowe’s request for clarification.

33. Condition 32 prohibits Lowe’s from installing outside loud speakers or paging systems for the conduct of business on Locus. The Site Plan Approvals state that “Lowe’s Site Plan does not show any loud speaker or paging system.” Lowe’s will not use loud speakers on its site but will instead use handheld walkie-talkie pager systems that are audible only to the user and do not have the same noise as a loudspeaker or other paging system. Lowe’s sought clarification from the Planning Board about whether its walkie-talkie system would satisfy Condition 32, but the Planning Board failed to respond.

E. Store Operation Conditions

34. Condition 61 prohibits Lowe’s from placing any retail products, inventory or any other item outdoors. In discussions during the public hearing process, the Planning Board indicated that it would not allow sidewalk sales — sales along the sidewalks exterior to the building — and Lowe’s indicated it was amenable to this condition. Lowe’s sought clarification of whether Condition 61 would prohibit its outdoor garden center, which has areas that are unroofed and open to air, but the Planning Board did not respond.

F. Landscaping Conditions

35. Condition 47 requires that where the sound barrier wall is closer than 25 feet to an abutting residential property, plants should be placed on both sides of the wall but to the extent feasible shall be concentrated on the side closer to the abutting properties. Condition 11’s requirement that the noise attenuation wall be moved closer to the abutting residential properties means there is less space than anticipated for plants on the side of the wall closer to residential property lines.

G. Sewage/Drainage Conditions

36. Condition 23 requires Lowe’s to have the slope on the northwestern side of Locus assessed by a geotechnical engineer to confirm slope stability. In March 2007, Lowe’s hired a geotechnical engineering firm, Haley & Aldrich, to review design elements related to proposed drainage and slope stability at Locus. Lowe’s filed with the Planning Board a letter from Haley & Aldrich that approved the drainage system. Lowe’s requested that the Planning Board review and respond to Haley & Aldrich’s assessment, but the Planning Board did not respond.

37. Condition 22 requires Lowe’s to provide dimensions for a swale intended to receive runoff water and engineering calculations to confirm the swale’s capacity. Condition 24 requires Lowe’s to revise its plans for the retaining wall to comply with the Haley & Aldrich recommendations. Condition 25 requires Lowe’s to modify its design for proposed drainage trenching to incorporate trench dams and other appropriate engineering measures to prevent groundwater from flowing through the trenches.

38. In 2005, the ZBA hired Graves Engineering to peer review Lowe’s proposed drainage system for Locus. A letter dated September 14, 2005 from Graves Engineering to the ZBA states that Lowe’s revised its drainage system plans to address all comments issued by Graves Engineering, including the dimensions of the swale. Graves Engineering approved the drainage system as meeting all local and state storm water management regulations, including the Department of Environmental Protection (DEP) storm water policy. The Water District also approved the proposed drainage system. During the Planning Board’s peer review process, the Planning Board indicated to Lowe’s that an additional peer review on storm water and drainage issues was unnecessary because the Planning Board would have ordinarily used Graves Engineering to peer review the Lowe’s project.

39. Conditions 26 and 27 require Lowe’s to redesign its infiltrative and detention drainage systems by raising the systems’ elevation. The Site Plan Approvals state that a report by peer reviewer Beals and Thomas indicated that the proposed drainage system would be sitting with 3 feet of groundwater in the system and, thus, would not function. This report was not included in the record. The Site Plan Approvals cite this report when stating that the observed groundwater levels are substantially above the part of the proposed subsurface detention system such that detention pipes would float and damage the proposed parking system above.

40. Jaworski Geotech (now Terracon Consultants) conducted a geotechnical investigation on the soil, groundwater, and bedrock at Locus. Terracon used the Frimpter method and a modified Frimpter method to estimate the seasonal high groundwater at Locus. [Note 16] Terracon used a USGS well ten miles away as an index well. The index well was located in a sandy soil area; the wells on Locus are located partially in a sandy/gravelly deposit and partially in a glacial till deposit. The differences in soil types between the wells required Terracon to modify the Frimpter method to normalize the comparisons between wells. Terracon concluded that there would be adequate separation between the drainage system and the seasonal high water table

41. Terracon estimated that the adjusted seasonal high water level at Locus was approximately six feet below grade. Without the site-specific adjustments made by Terracon, the elevation of the estimated seasonal high water table could increase by three to five feet.

42. Condition 28 requires Lowe’s to submit an as-built plan with the seal of a professional engineer certifying that the drainage system conforms to the conditions in the Site Plan Approvals, i.e. Conditions 22-28.

43. Conditions 23-28 require Lowe’s to submit the results or revisions to the Planning Board for approval prior to commencing construction.

H. Traffic Conditions

44. Conditions 50-54, 55, 57, and 58 impose traffic mitigation requirements on Lowe’s.

45. Lowe’s has worked with the Massachusetts Highway Department (MHD) to design traffic mitigation measures for Locus. On May 31, 2005, the Executive Office of Environmental Affairs issued a Final Environmental Impact Report (the “FEIR”) for the Development. On September 7, 2005, MHD issued a Section 61 finding (the “Section 61 Finding) [Note 17] that discussed specific traffic mitigation measures that would be required at Locus to minimize the impact of the Development. Conditions 50-54, 57, and 58 parrot the language of the mitigation measures detailed in the Section 61 Finding.

46. In order to become final, the conditions outlined in the Section 61 Finding must be incorporated into an MHD permit for the Development. MHD has not yet issued this permit. Lowe’s is currently in the 25 percent design approval level for Section 61 Finding. [Note 18] Lowe’s is willing to fund and construct any mitigation measures required to meet final MHD approval. [Note 19]

47. The Planning Board’s justification for Conditions 50-55, 57, and 58 in the Site Plan Approvals was Section 9.4.6.15 of the New Bylaw. This section does not appear in the Bylaw applicable in 2006.

48. Conditions 50 and 51 also include language that is not in the Section 61 Finding. This language would require Lowe’s to install traffic signals and to maintain, service, repair, and/or replace them as necessary for up to five years after installation. Lowe’s engineers testified that once a business has paid to have traffic signals installed on a state highway, MHD services these traffic signals.

49. Condition 55 requires Lowe’s to establish a Worcester Regional Transit Authority (WRTA) bus stop on Locus, post bus schedules in its store, and to construct and maintain a bus shelter within or adjacent to its proposed park-and-ride lot on the MTA parcel. The Section 61 Finding states that Lowe’s should “work with the WRTA to establish a bus stop on site.” Lowe’s has strict policies about the size of vehicles it allows on its site and views circulation of public buses, which it does not control or operate, on its sites as a traffic and safety conflict. Lowe’s proposed modifying Condition 55 to establish a bus stop near Locus instead of on Locus to avoid creating traffic conflicts, but the Planning Board did not respond. [Note 20]

50. Condition 56 requires Lowe’s to conduct traffic counts in the Linda Avenue neighborhood prior to site occupancy and six months after the opening of the store to determine if vehicles are using the neighborhood as a short cut and whether traffic calming measures should be considered. Condition 56 then requires Lowe’s to submit the results to the Planning Board and to install any traffic calming measures deemed necessary by the Planning Board.

51. Condition 58 requires Lowe’s to fund a complete traffic signal warrant analysis at the intersection of Oxford Street and Bryn Mawr Avenue. Condition 58 also contains a footnote requiring that the Planning Board may ask MHD to require Lowe’s to pay for installation of a traffic signal at this intersection. The Section 61 Finding states that this intersection is not under MHD jurisdiction.

I. Conditions Relating to Earth Removal

52. Condition 21 requires Lowe’s to obtain an Earth Removal Special Permit authorizing removal of earth within ten feet of the natural, seasonal high groundwater table in an amount sufficient to implement the redesigned stormwater management systems required in Conditions 22-27. In May 2005, Lowe’s applied to the ZBA for a variance and special permit seeking relief from the Bylaw to allow removal of earth materials within ten feet of historical high groundwater levels. After public hearings and peer review from Graves Engineering, Inc., the ZBA granted the variance and special permit in November 2005 (the “2005 Special Permit”).

53. During public hearings on the Site Plan Applications, the Planning Board indicated that it may require a fifty-foot undisturbed vegetative buffer around the perimeter of each parcel. Such a requirement would have created 100-foot wide swath of land within Locus that Lowe’s would not be able to develop and would have rendered the Development unbuildable on Locus. The final decision included only a requirement for a fifty-foot vegetative buffer around the perimeter of Locus.

54. Condition 33 requires Lowe’s to obtain an Earth Removal Special Permit authorizing earth removal within fifty feet of the site boundary. Lowe’s proposed vegetative buffer between its store and residential property lines is approximately seventy-seven feet to the northern property line, thirty-five feet in the extreme northeast corner and between sixty-eight and sixty-nine feet to the eastern property line. To comply with Condition 33, Lowe’s would need to relocate the store to the south by fifty feet and to the west by approximately forty feet. Relocating the store would eliminate 150 parking spaces, which would put Lowe’s in violation of special permits for parking that Lowe’s obtained from the ZBA. Relocating the store would require additional time for further redesign and re-permitting, on top of approximately two to three months of construction time. The additional excavation needed would require removing approximately 25,000 cubic yards of additional earth and rock, which in turn would add one-thousand truck trips to the 8,000 trips currently estimated to remove earth and rock from Locus.

J. Earth Removal Special Permit Denials

55. Lowe’s will need to perform excavation on Locus, which will include earth cuts and earth fills to achieve the final grade required to develop Locus for its store and required parking. Lowe’s plans to excavate 162,450 cubic yards of earth and to reuse approximately 31,450 cubic yards of earth as fill on site. Lowe’s plans to excavate 70,100 cubic yards of rock and plans to crush approximately 20,000 cubic yards of rock for use on site. Lowe’s estimates that 181,000 cubic yards of excess earth and rock would need to be removed for construction of the Development. In the Special Permit Denials, the Planning Board stated that Beta Group, the peer reviewer, estimated that construction of the Development in accordance with the Site Plan would require between 207,415 and 233,386 cubic yards of earth removal. There is no report from Beta Group in the record.

56. Earth excavation will take approximately four to five months. Lowe’s plans to use the Locus to operate the store for a period of approximately twenty years. Lowe’s will need to pay to have the excess earth and rock removed from Locus. Lowe’s engineers testified that there is no market in the area for such a large amount of earth and rock during the four to five months that excavation will occur and that it would cost Lowe’s money to get rid of the excess material.

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Of the sixty-four conditions established in the Site Plan Approvals, Lowe’s has agreed to fourteen: Conditions 3, 4, 9, 12, 16, 19, 29, 30, 31, 44, 46, 56, [Note 21] 59, and 63. Therefore, I find that these conditions remain valid and enforceable. Fifty conditions remain in dispute. I shall discuss each of these conditions in turn.

Although site plan review is a permissible regulatory tool for imposing reasonable terms and conditions on uses permitted as of right, it is well settled that the Zoning Act, G. L. c. 40A, §§ 1 et seq., does not expressly recognize site plan review “as an independent method of regulation.” Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 57 (1997); see also Y. D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 31 (1970). “Consequently, guidance regarding the appropriate mechanism for review of planning board action on a site plan has developed in iterative stages, depending on the particular frameworks established under various local bylaws.” Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 608 n.6 (2002) (citation omitted). Cases have recognized a distinction between site plan approvals for a use as of right and approval of special permit site plans. See Osberg, 44 Mass. App. Ct. at 58.

In cases where the site plan is related to a use as of right, the local board has no discretionary power to deny the use, and may only impose reasonable terms and conditions on the proposed use. Id. at 59. When reviewing a planning board’s decision to approve a site plan with conditions for a use as of right, the judge’s standard of review is one of reasonableness. See Y.D. Dugout, Inc., 357 Mass. at 31. When reviewing a planning board’s decision denying approval of a site plan submitted in connection with a use allowed as of right, the judge is to “examine the proposal to see if the [reason for denial] was so intractable that it could admit of no reasonable solution.” Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282-83 (1986). In the absence of such a finding, the judge is not required to give deference to the board’s decision. See id. at 283.

In Land Court Decision 1, this court determined that the use of Locus was retail and therefore an as-of-right use. Therefore, this court will evaluate the Site Plan Approvals under a standard of reasonableness. “What conditions, if any might be deemed reasonable . . . requires careful factual analysis.” Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 , 376 (2008). Conditions that fundamentally undermine or adversely affect the fundamental use of a site have been held invalid because these issues were previously decided “in a legislative sense” when the city or town enacted a zoning ordinance allowing fundamental use of the site. Castle Hill Apartments Ltd. P’ship v. Planning Bd. of Holyoke, 65 Mass. App. Ct. 840 , 847 (2006) (citing KCI Mgmt. Inc. v. Bd. of Appeal of Boston, 54 Mass. App. Ct. 254 , 261 (2002)). Lowe’s has the burden of proof to show that the conditions stated in the Site Plan Approvals were not reasonable. See Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548 (1975).

A. Conditions Requiring Additional Approvals from the Planning Board

The following conditions require Lowe’s to return to the Planning Board for additional approvals: Condition 6 (lighting); Conditions 23-27 (sewage/drainage); Condition 49 (architecture); and Condition 54 (traffic). A planning board may not impose conditions that grant the board “unfettered discretion to determine after the fact whether the details [of certain conditions] are satisfactory” after the board has rendered a site plan decision. See Castle Hill, 65 Mass. App. Ct. at 844 n.7 (observing this court’s order striking conditions related to a planning board’s attempts to require an applicant to seek additional approvals related to landscaping). The above-enumerated conditions fall under this concern, and as a result, I find Conditions, 6, 23-27, 49 and 54 unreasonable and invalid. [Note 22]

Lowe’s agrees to Condition 56, but Condition 56 also requires Lowe’s to return to the Planning Board for additional approvals on traffic calming measures. Condition 56 must therefore be modified to eliminate any language that would require further approvals from the Planning Board. [Note 23] Therefore, I find that the modified version of Condition 56, which removes language requiring Lowe’s to obtain further approvals from the Planning Board, is valid and enforceable.

B. Conditions Relating to the New Bylaw

Conditions 8, 10, 34-43, 45, 48, and 49 relate to requirements for: lighting (8 and 10) landscaping (34-43, 45, and 48) and architecture (49). Each of these conditions relate to requirements of the New Bylaw. The Site Plan Applications were filed on July 18, 2006. Lowe’s argues that the Site Plan Applications should be determined by the Bylaws in existence in 2006 and that the previously enumerated conditions are invalid.

Pursuant to G. L. c. 40A, § 5, “[t]he effective date of the adoption or amendment of any zoning ordinance or bylaw shall be the date on which such adoption or amendment was voted upon by a city council or town meeting . . . .” In the context of an application filed under the subdivision control law, G.L. c. 41, §§ 81K-81GG, the Appeals Court applied this standard in MP Corp. v. Planning Bd. of Leominster, 27 Mass. App. Ct. 812 (1989). In that case, a developer had filed its preliminary development plans for a commercial-retail development before Leominster adopted a new zoning ordinance and the court held that the zoning ordinance effective at the time of filing was controlling. Id. at 816-17.

In the case at bar, the New Bylaw became effective on May 1, 2008 and, thus, was legally inapplicable to the Planning Board’s consideration of the Site Plan Applications on remand. The Planning Board even acknowledged that it had looked to the New Bylaw in granting the Site Plan Approvals. Furthermore, the language of Conditions 8, 10, 34-43, 45, 48, and 49 is copied directly from or is clearly consistent with the language of the New Bylaw. Therefore, I find that Conditions 8, 10, 34-43, 45, 48, and 49 are invalid as a matter of law.

C. Conditions That Lowe’s Argues Exceed the Planning Board’s Jurisdiction

Lowe’s argues that Conditions 1, 2, 20, 60, 62, 50-54, 57, 58, and 64 exceed the Planning Board’s jurisdiction. Condition 1 requires that Site Plan Approval will not take effect until pending variance appeals have been disposed of and become final and enforceable. Conditions 2, 20, and 60 require Lowe’s to obtain permits and comply with conditions and procedures that are deemed necessary by the Fire Department, Board of Health and “State Division of Sanitation,” and the Conservation Commission, respectively. These conditions do not involve the Planning Board taking enforcement power from any of the appropriate enforcement authorities. Rather, these conditions simply state that Lowe’s must follow any procedures and conditions required by law by the appropriate enforcement authority. It goes without saying that Lowe’s must follow all procedures and conditions required by law for the appropriate enforcement authorities for each aspect of the Development. Therefore, I find that Conditions 1, 2, 20, and 60 are reasonable and enforceable. [Note 24]

Conditions 50-54, 57, and 58 impose traffic mitigation requirements on Lowe’s. Pursuant to G. L. c. 81, § 21,

Any person who builds or expands a business, residential or other facility intending to utilize an existing access or a new access to a state highway so as to generate a substantial increase in or impact on traffic shall be required to obtain a permit under this section prior to constructing or using such access. Said person may be required by [MHD] to install and pay for, pursuant to a permit under this section, standard traffic control devices, pavement markings, channelization, or other highway improvements to facilitate safe and efficient traffic flow, or such highway improvements may be installed by [MHD] and up to one hundred percent of the cost of such improvements may be assessed upon such person.

MHD also has enforcement jurisdiction “to enforce the provisions of this section or the provisions of any permit, regulation order or approval issued under this section.” Id.; see also Davis v. Westwood Group, 420 Mass. 739 , 745 (1995) (“[MHD] oversees a permit process for approving and overseeing alterations to state highways.”). Additionally, the Appeals Court has previously negated conditions imposed by a local board that required road work on a State highway because “the required road work can only be done by the governmental authorities responsible for [the State highway], and performance of that work - if it is to be done at all - will be a governmental decision beyond the control of [the applicant].” V.S.H. Realty, Inc. v. Zoning Bd. of Appeals of Plymouth, 30 Mass. App. Ct. 530 , 534-35 (1991).

Conditions 50-54, 57, and 58 contain the same language as the traffic mitigation measures outlined in the Section 61 Finding. Requiring and enforcing these traffic mitigation measures, however, is within the exclusive jurisdiction of MHD. Moreover, in the Site Plan Approvals, the Planning Board imposed these conditions based on a section of the New Bylaw, which as discussed earlier, is not allowed. It should be noted that in the FEIR and Site Plan Applications, Lowe’s already agreed to commit to many of these traffic mitigation measures and that Lowe’s must by law comply with any mitigation measures required by MHD. Furthermore, Lowe’s has yet to received the required permits from MHD that would make these mitigation measures final. Therefore, I find that Conditions 50-54, 57, and 58 exceed the Planning Board’s jurisdiction and are invalid as a matter of law.

Conditions 50 and 51 contain language that requires Lowe’s to maintain, service, repair, and/or replace certain traffic signals after installing them. This language is absent from the Section 61 Finding. G. L. c. 85 § 2 provides:

[MHD] shall erect and maintain on state highways . . . direction signs, warning signs or lights, curb, street or other traffic markings, mechanical traffic signal systems, traffic devices, or parking meters as it may deem necessary . . . . No such signs, lights, signal systems, traffic devices, parking meters or markings shall be erected or maintained on any state highway by any authority other than [MHD] except with its written approval . . . . Any traffic control device which has not been erected or maintained in accordance with the foregoing provisions may be removed by or under the direction of MHD . . . or . . . may be disposed of at the discretion of MHD.

There is no evidence of written permission from MHD that Lowe’s should maintain any of these traffic signals. Furthermore, I credit the testimony of Lowe’s engineers that MHD is usually responsible for maintaining traffic signals after a business has paid to install them as Planning Board did not submit any evidence to the contrary. Therefore, I find that language in Conditions 50 and 51 that requires Lowe’s to maintain, service, repair, and/or replace certain traffic signals after installing them is invalid because it exceeds the Planning Board’s jurisdiction.

Condition 58 requires Lowe’s to fund a complete signal warrant analysis at the intersection of Oxford Street and Bryn Mawr Avenue and a footnote to this condition states that the Planning Board may ask MHD to require Lowe’s to fund the installation of a traffic signal at this intersection. MHD itself stated in the Section 61 Finding that it does not have jurisdiction over this intersection. The Planning Board cannot ask MHD to impose a condition on Lowe’s over an area which MHD has no jurisdiction. Therefore, I find that the footnote to Condition 58 is unreasonable and invalid.

Condition 62 requires Lowe’s to maintain all entrances and means of egress in its store free of retail products, inventory or other obstructions that interfere with customer movement out of the store in accordance with the Massachusetts Fire Safety Code. Condition 62 reinforces this by quoting directly the relevant language from the Massachusetts Fire Safety Code that requires the removal of any obstacles that may interfere with the means of egress or escape from the building or fire department in case of fire. The Fire Department, however, is responsible for enforcing the Massachusetts Fire Safety Code. See 527 C.M.R. 1.03 (“It shall be the duty and responsibility of the Marshal or the head of the fire department or his designee, to enforce the provisions of the code as herein set forth.”). By directly requiring Lowe’s to comply with the State Fire Code and quoting requirements from the State Fire Code, Condition 62 exceeds the Planning Board’s jurisdiction. Therefore, I find that Condition 62 exceeds the Planning Board’s jurisdiction and is invalid.

Condition 64 states that the Site Plan Approvals will not take effect until both the Site Plan Approvals and the approved plan are recorded in the Registry. Because this court invalidates many of the conditions in the Site Plan Approvals, it would be unreasonable for Lowe’s to file the Site Plan Approvals with the Registry and thus Lowe’s need not file it. Condition 64, however, is not entirely unreasonable. Once the Planning Board has issued a decision consistent with these findings, as it is directed to do, infra, the Planning Board may require Lowe’s to file its new decision with the Registry. Lowe’s argues that there is no statutory requirement or municipal bylaw to record a site plan for as-of-right use with the Registry and, thus, requiring it is unreasonable. Although not required by law, requiring a site plan to be recorded has a reasonable basis. Having the decision and approved plan available at the Registry allows town residents to view these documents to understand the changes coming to their town. Therefore, I find that Condition 64 as it refers to the Site Plan Approvals is invalid, but when the Planning Board issues a new decision consistent with these findings, the Planning Board may impose Condition 64 in relation to its new decision and approved plan.

D. Conditions For Which Lowe’s Requested Clarification

Lowe’s requested clarification from the Planning Board about Conditions 5, 7, 18, 32, and 61, but the Planning Board never responded.

Condition 5 requires Lowe’s to ensure that no residue, dust, or smoke is detectable beyond the property line. Lowe’s provided the Planning Board with a dust mitigation plan for Locus and argues that this plan satisfies Condition 5. Lowe’s has dust mitigation plans on all its construction sites and argues that its dust mitigation plan will be effective at reducing dust, but that a standard of zero dust is impossible to meet. Condition 5 cannot reasonably require a standard of zero dust because ensuring that even the tiniest dust particle is not detectable beyond the property line is impossible and an unreasonable demand. Lowe’s plan to water down earthen areas where trucks will travel and put gravel on other areas so that trucks do not drive over earth to create dust appears reasonable.

Condition 7 requires Lowe’s to equip all facade lighting luminaires with a top visor to reduce or eliminate any up light above the horizontal plane of the building facade wall. Lowe’s argues that its lighting fixtures satisfy Condition 7. Lowe’s goal in selecting lighting fixtures is to provide a minimum level of light for safe operation and to ensure illumination levels will be near zero near property lines abutting residential property to avoid light spillage on to those properties. The lighting design details of proposed lighting fixtures that Lowe’s provided to the Planning Board includes top visors as an accessory to the lighting fixtures. Furthermore, Antonio Franco & Associates, the Planning Board’s peer reviewer, found Lowe’s lighting plan acceptable. By including top visors in its lighting plan, Lowe’s satisfies the requirements of Condition 7.

Condition 18 requires that Lowe’s prohibit the discretionary use of truck horns in the rear or eastern side of the building. Lowe’s proposal to post signs instructing truck drivers not to blow horns is a reasonable approach to prevent unnecessary noise from disturbing residential abutters. Condition 18 interpreted literally would require a truck horn never to be blown on this area of Locus, which is an impossible and unreasonable standard. Furthermore, the RSG report states that prohibiting discretionary use of truck horns is possible by posting signs or notifying drivers directly. There is no evidence that the Planning Board could reasonably have done anything else to minimize the discretionary use of truck horns at Locus.

Condition 32 prohibits Lowe’s from installing outside loudspeakers or paging systems in the conduct of business on Locus. The handheld walkie-talkie pager system proposed by Lowe’s is very different from a loudspeaker or other non-handheld paging system because it is audible only to the user. Thus, the level of noise will be much less compared to a loudspeaker or other paging system. Additionally, the record suggests that the Planning Board finds that Lowe’s is in compliance with Condition 32 because the Site Plan Approvals state that “Lowe’s Site Plan does not show any loud speaker or paging system.”

Condition 61 prohibits Lowe’s from placing any retails products, inventory, or any other item outdoors. The Planning Board failed to clarify if this would include Lowe’s proposed outdoor home garden center. Lowe’s argues that Condition 61 prohibits sidewalk sales, not an outdoor home garden center, because Lowe’s discussions with the Planning Board focused on prohibiting sidewalk sales. Section 3.2.5.0 of the Bylaw defines retail store and sales as selling goods or merchandise within a building “except that a garden center . . . may have open air display of horticultural products.” Therefore, the Bylaw itself indicates that Condition 61 does not apply to Lowe’s proposed home garden center.

The Planning Board’s failure to respond to Lowe’s reasonable request for clarification of Conditions 5, 7, 18, 32, and 61 is unreasonable because it prevents Lowe’s from understanding how to properly comply with these conditions. In the absence of any evidence clarifying these conditions, I find that Lowe’s interpretations of these conditions are reasonable, and, as such, I find that Lowe’s interpretations of Conditions 5, 7, 18, 32, and 61 are valid and enforceable.

E. Conditions For Which Lowe’s Proposed Modifications

Lowe’s proposed modifications of Conditions 11, 13, 15, 17, and 55 but the Planning Board failed to respond to these proposed modifications or clarify the underlying conditions.

Condition 11 requires Lowe’s to construct a noise attenuation wall before commencing any other site activities. Other site activities must be commenced before the wall is constructed because the wall cannot be constructed without prior landscaping and other construction work. Condition 11 is impossible to fulfill as written and is therefore unreasonable. Lowe’s proposed modification adds language stating that the noise attenuation wall will be constructed before any other site activities except those prefatory site construction activities necessary to construct the wall itself. The modification appears reasonable because it is consistent with the intent of Condition 11 and makes it possible to fulfill the Condition.

Condition 13 requires that sound levels not exceed 51 A-weighted decibels (dBA) within the property of residents adjacent to Locus and authorizes the Planning Board or its designee to inspect Lowe’s site within 90 days after issuance of a Certificate of Occupancy and as warranted to ensure future compliance. Lowe’s proposed modification seeks to ensure that any additional noise is not simply attributed to Lowe’s when it may in fact be from some other source. The modification would remove language that would have made the Planning Board the enforcement authority for Condition 13 because Lowe’s argues that the Planning Board lacks authority to police Condition 13’s requirements. Lowe’s also argues that removing this language ensures that post-approval and post-store opening the Planning Board would not be able to put Lowe’s Certificate of Occupancy in jeopardy.

Condition 13 is unreasonable as it does not account for the possibility of increased background noise over time that is attributable to sources other than the Development. The abutters’ own activities could increase noise and, because Locus lies in an HB district, it is possible that increased highway noise may elevate noise levels within abutters’ properties. Lowe’s modification of including an average ambient sound measurement to account for this possibility appears reasonable. Similarly, the requirement of the Planning Board or its designee inspecting Locus within 90 days is unreasonable because it requires Lowe’s to obtain further approval from the Planning Board (as discussed earlier) and would allow the Planning Board to arbitrarily place Lowe’s Certificate of Occupancy in jeopardy post-approval. Lowe’s proposed modification appears reasonable because it allows for enforcement of the noise standard by the appropriate authority. [Note 25]

Condition 15 requires that Lowe’s use a noise damping compound on its trash compactor and submit to the Planning Board the details of the noise damping compound prior to construction. Lowe’s plans to use a noise damping compound and did indeed submit such details to the Planning Board. Lowe’s actions comply with Condition 15 and the Planning Board’s failure to respond to Lowe’s submissions is unreasonable because Lowe’s has no way of knowing if the Planning Board is satisfied that Condition 15 has been fulfilled. Lowe’s modification would name the damping compound it plans to use as the damping compound to be applied in Condition 15. Condition 15 does not specify the type of noise damping compound nor has the Planning Board indicated that such a compound should have any specific characteristics. Lowe’s modification, to name the noise damping compound it has chosen as the noise damping compound in Condition 15, is reasonable.

Condition 17 requires that Lowe’s “emergency generator shall be exercised only during daylight hours.” Condition 17 read literally is clearly unreasonable because it would preclude Lowe’s from using its emergency generator in an emergency after daylight hours. Lowe’s substitution of “tested” for “exercised” is a reasonable modification because it ensures that the emergency generator will not be used outside of daylight hours except in an emergency.

Condition 55 requires Lowe’s to establish a WRTA bus stop on Locus, post bus schedules in its store, and to construct and maintain a bus shelter within or adjacent to its proposed park-and-ride lot on the MTA parcel. Requiring a bus stop on Locus is unreasonable because it would result in additional and unnecessary traffic on Locus. Lowe’s has strict traffic control policies on its sites and does not allow trucks to access the front of its stores. Allowing public buses to access the parking lots could create traffic problems because of their size and the fact that Lowe’s does not control or operate them. Lowe’s proposed modification to establish a bus stop near Locus instead of on Locus is reasonable in that it will serve the public interest by ensuring Locus is accessible by public transportation and prevents traffic problems that may arise from public buses accessing the parking area. [Note 26]

The Planning Board’s failure to respond to Lowe’s proposed modifications and reasonable requests for clarification of Conditions 11, 13, 15, 17, and 55 is unreasonable because it prevents Lowe’s from knowing how to properly comply with these conditions. In the absence of any evidence clarifying these conditions or any evidence to suggest these modifications are unreasonable, I find that Lowe’s interpretations of these conditions are reasonable. Therefore, I find that Lowe’s modifications of Conditions 11, 13, 15, 17, and 55 are valid and enforceable. In its new decision, the Planning Board shall amend Conditions 11, 13, 15, 17, and 55 accordingly.

F. Conditions That Lowe’s Argues Are Unreasonable and Invalid

Lowe’s argues that Conditions 14, 22-28, and 47 are invalid because they are unreasonable. Condition 14 requires Lowe’s to relocate the truck loading dock area from the northeast corner of its building to the western side of the store. The Planning Board appears to have believed that relocating the truck dock would decrease noise for residential abutters. This would require, however, that the busy lumber area, currently located on the western side of the store, be relocated to the main entrance. Placing this area at the main entrance, the only entrance and exit way for vehicles accessing Locus, would increase traffic near the property line and create more noise for residential abutters. Traffic going toward the loading dock would conflict with the substantial amount of traffic activity in the lumber area, which would in turn conflict with vehicles entering and existing Locus. Furthermore, this issue was not discussed at any Planning Board hearings nor was it the subject of any peer review recommendations. In attempting to reduce noise, the Planning Board has inadvertently exchanged one type of noise for another potentially greater noise. Therefore, I find that Condition 14 is unreasonable and invalid.

Condition 23 requires Lowe’s to have the slope on the northwestern side of Locus assessed by a geotechnical engineer to confirm slope stability. Haley and Aldrich’s letter filed with the Planning Board addressed this issue, but the Planning Board acted unreasonably by failing to respond to Lowe’s request to review the letter. Requiring Lowe’s to conduct another geotechnical investigation would be redundant and therefore unreasonable. Therefore, I find that Condition 23 is unreasonable and invalid.

Condition 22 requires Lowe’s to provide dimensions for a swale intended to receive runoff water and engineering calculations to confirm the swale’s capacity. Condition 24 requires Lowe’s to revise its plans for the retaining wall to comply with the Haley & Aldrich recommendations. Condition 25 requires Lowe’s to modify its design for proposed drainage trenching to incorporate trench dams and other appropriate engineering measures to prevent groundwater from flowing through the trenches. These conditions are unreasonable because Lowe’s already provided the Planning Board with calculations and design plans required in Conditions 22, 24, and 25. Furthermore, Graves Engineering, the Planning Board’s peer reviewer, approved the drainage system. It is unclear why the Planning Board would request additional calculations or how further analyses would be useful. Therefore, I find that Conditions 22, 24, and 25 are unreasonable and invalid.

Conditions 26 and 27 require Lowe’s to redesign its infiltrative and detention drainage systems by raising the systems’ elevation. The Planning Board claimed the proposed drainage system was inadequate but cited only conclusory statements from a Beals and Thomas report. Lowe’s established that site-specific adjustments to the Frimpter method were necessary to obtain accurate results for the drainage system. There was no evidence that the Planning Board’s statements about the drainage system needing to be elevated incorporated a modified Frimpter method. Moreover, Lowe’s proposed drainage system has already been approved by Graves Engineering as satisfying all local and state regulations and by the Water District. Requiring Lowe’s to redesign the drainage system would be unreasonable because it would be in excess of what has already been deemed acceptable by peer reviewers, Terracon, and the Water District. In the absence of any evidence to suggest that revising the drainage system as required by Conditions 26 and 27 would be reasonable, I find that Conditions 26 and 27 are therefore unreasonable and invalid.

Condition 28 requires Lowe’s to submit an as-built plan with the seal of a professional engineer certifying that the drainage system conforms to the conditions in the Site Plan Approvals. The conditions in the Site Plan Approvals relating to drainage have been invalidated and it would be unreasonable for Lowe’s to submit a revised drainage plan conforming to those conditions. Therefore, I find that Condition 28 is unreasonable and invalid.

Condition 47 requires that where the noise attenuation wall is closer than twenty-five feet to an abutting residential property, plants should be placed on both sides of the wall “but to the extent feasible shall be concentrated on the side closer to the abutting properties.” Lowe’s argues that Condition 47 is unreasonable because it requires Lowe’s to place more plants than is feasible on the side of the wall closer to abutting residential properties. Moving the noise attenuation wall closer to the property line results in less space than anticipated for plants on the side of the wall closer to residential property lines. Lowe’s argues that the current plan is reasonable and conforms to the Planning Board’s intent to create visual screening between the wall and the abutting properties. Nevertheless, Lowe’s fails to demonstrate that Condition 47 is unreasonable. The “to the extent feasible” language indicates that Lowe’s is required to concentrate plants on the side closer to the abutting properties only if it is possible to do so. Condition 47 thus will not apply to areas where it is impossible to concentrate plants on the side of the noise attenuation wall that is closer to residential property lines. Therefore, I find that Condition 47 is reasonable and enforceable.

G. Conditions Relating to Earth Removal

Conditions 21 and 33 relate to earth removal with regard to the Development. Condition 21 requires Lowe’s to obtain an Earth Removal Special Permit authorizing removal of earth within 10 feet of the natural, seasonal high groundwater table in an amount sufficient to implement the redesigned stormwater management systems required in Conditions 22-27. This court has found Conditions 22-27 unreasonable and Lowe’s has already obtained this particular special permit and a variance from the ZBA. Therefore, I find that Condition 21 is unreasonable and invalid.

Condition 33, which requires Lowe’s to obtain an Earth Removal Special Permit authorizing earth removal within fifty feet of the site boundary, has limited benefits to residential abutters. First, it affects a small portion of Locus because only buffer in the extreme northeast corner of Locus is less than fifty feet, yet its implementation would create several problems and increase the duration of construction. Lowe’s would be forced to violate special permits for parking obtained from the ZBA. Moreover, Condition 33 would require an additional delay for redesign and re-permitting on top of extra construction time, and would require more extensive earth removal operations leading to increased noise and traffic for abutters. Therefore, I find that Condition 33 is unreasonable and invalid.

H. Earth Removal Special Permit Denials

Lowe’s appeals the Planning Board’s denial of two special permits for earth removal and argues that it need not apply for such permits because the excavation activities it plans are incidental to its as of right use. The denial of a special permit “can only be disturbed ‘if it is based on a legally untenable ground’ . . . or is ‘unreasonable, whimsical, capricious or arbitrary.’” Subaru of New England, Inc. v. Bd of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979) (quoting Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969)).

“An accessory or ‘incidental’ use is permitted as ‘necessary, expected or convenient in conjunction with the principal use of the land.’” Henry v. Bd. of Appeals of Dunstable, 418 Mass. 841 , 844 (1994) (citing 6 P.J. Rohan, Zoning and Land Use Controls, Section 40A.01, at 40 A-3 (1994)). Under Henry, an incidental use must be (1) subordinate and minor in significance to the primary use, (2) have a reasonable relationship to the primary use, and (3) be attendant or concomitant to the primary use. Id. at 844-45; see also Gallagher v. Bd. of Appeals of Acton, 44 Mass. App. Ct. 906 , 907 (1997). [Note 27] In Henry the court found that “the amount of gravel to be removed, the duration of the excavation and the monies to be realized from excavation” indicated that removal was not an incidental use but effectively a quarrying operation. Henry, 418 Mass. at 847 (reversing special permit approval where applicant permitted to remove 300,000 to 400,000 cubic yards of gravel over at least three to four years and would be able to sell gravel and invest proceeds in her business).

Lowe’s has established that the earth removal activities are minor and subordinate to the primary use of Locus (retail sales) because the initial earth removal component will last only four to five months (as opposed to three to four years in Henry) in comparison to the multi-decade use of Locus for retail sales. The excavation bears a reasonable relationship and is attendant to retail sales as the excavation is done solely to prepare for construction of the retail store. Although the volume of earth to be removed may be large, the fact that earth removal will take place over a short period of time, that Lowe’s plans to reuse some of the excavated material for construction, and that Lowe’s is unlikely to earn income from the removal alleviates any concerns that it is effectively a quarrying operation unrelated to the primary use of Locus, the main concern of the court in Henry. See id. at 847. Therefore, I find that the earth removal is incidental to the Development’s as-of-right use and Lowe’s need not apply for earth removal special permits under the Bylaw. As such, the Special Permit Denials are unreasonable, arbitrary, and capricious.

Conclusion

Lowe’s argues that the Planning Board has acted in bad faith in its actions related to the permitting of the Development. Lowe’s requests that this court issue the Site Plan Approvals, without the unreasonable conditions, and Earth Removal Special Permits instead of remanding this action to the Planning Board. This court, however, is not convinced that the record warrants a finding of bad faith and believes that the more appropriate remedy is to remand the case to the Planning Board to issue a decision consistent with this court’s findings. Lowe’s, however, will not be subject to any arbitrary or unreasonable action by the Planning Board because the Planning Board is required to issue a decision consistent with these findings. [Note 28] Moreover, the Planning Board may not adopt new conditions or review any of the findings made by this court.

Consistent with this the Decision, judgment shall enter annulling the Planning Board’s January 27, 2009 decision relative to the Site Plan Approvals and its denial of two Earth Removal Special Permits on July 19, 2007. This case is remanded to the Planning Board for action consistent with this Decision. The Planning Board shall act within thirty days of this Decision.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: July 21, 2010