Plaintiff Lowes Home Centers, Inc. (Lowes) 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 Boards (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, Lowes 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, Lowes 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 Lowes 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).
Lowes 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, Lowes, 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 Lowes. 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 Plaintiffs 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 Plaintiffs 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 Lowes 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, Lowes 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, Lowes 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, Lowes 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 Bylaws 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. Lowes is registered to do business in Massachusetts as a corporation in the business of Retail Sales. [Note 4] Lowes 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 184.108.40.206.3 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. Lowes 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, Lowes 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, Lowes planned to have a stenographer record all Planning Board meetings to maintain an accurate record. One Planning Board member refused to hear Lowes application if a stenographer were present. Faced with the possibility of not having a full board and not receiving a vote, Lowes 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 Lowes 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 buildings 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:
2. Use is Not Permitted: A bulk merchandise retail use and/or lumber yard is not allowed in the Highway Business district.
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 Boards 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, Lowes 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, Lowes 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, Lowes 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 Lowes 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 Lowes 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 Lowes obtained are the subject of an appeal in Worcester Superior Court. The Site Plan Approvals further state that Lowes reported the appeal has been settled in principle but no final judgment dismissing the appeal had been entered.
19. Condition 2 requires Lowes 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 Lowes 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 Lowes 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 Lowes 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. Lowes submitted a dust mitigation plan in response to Condition 5, which requires Lowes to ensure that no residue, dust or smoke is detectable beyond the property line. The plan requires Lowes 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. Lowes has dust mitigation plans on all its construction sites. The Planning Board never responded to Lowes 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 Lowes 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, Lowes sought clarification from the Planning Board as to whether Lowes proposed lighting designs were acceptable to fulfill Conditions 6, 7, and 8. Condition 7 requires Lowes 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. Lowes 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. Lowes retained a sub-consultant, Resource Systems Group (RSG), to conduct a noise study and analyze Lowes proposed operations and make recommendations to mitigate the effect of any noise from the site on abutting residences. Based on the RSG report, Lowes 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 Lowes to construct a noise attenuation wall before the commencement of any other site activities. Lowes 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. Lowes 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 Lowes site within 90 days after issuance of a Certificate of Occupancy and as warranted to ensure future compliance. Lowes proposed modification would amend Condition 13 to read:
The average sound level (LAEQ 1-hour) [Note 12] from all Lowes 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. Lowes shall allow the Towns designated code enforcement official [Note 14] to access the property reasonably to take sound measurements from time to time.
Lowes 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 Lowes could increase noise levels in the future at residential property lines. Lowes 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 Lowes request to consider the proposed modification.
29. Condition 14 requires Lowes 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 Lowes 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 Lowes 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, Lowes 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 Lowes letter. Lowes proposes modifying the condition to name VBD-10 as the noise damping compound. [Note 15]
31. Condition 17 requires that Lowes emergency generator shall be exercised only during daylight hours. Lowes requested clarification from the Planning Board as to whether the Planning Board meant tested when it used the word exercised. Lowes plans for its emergency generator to be used only in case of emergencies and for it to undergo short, weekly testing during daylight hours. Lowes agrees to Condition 17 if the word exercised is replaced with tested. The Planning Board did not respond to Lowes request for clarification.
32. Condition 18 requires that Lowes 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. Lowes 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. Lowes 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 Lowes request for clarification.
33. Condition 32 prohibits Lowes from installing outside loud speakers or paging systems for the conduct of business on Locus. The Site Plan Approvals state that Lowes Site Plan does not show any loud speaker or paging system. Lowes 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. Lowes 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 Lowes 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 Lowes indicated it was amenable to this condition. Lowes 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 11s 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 Lowes to have the slope on the northwestern side of Locus assessed by a geotechnical engineer to confirm slope stability. In March 2007, Lowes hired a geotechnical engineering firm, Haley & Aldrich, to review design elements related to proposed drainage and slope stability at Locus. Lowes filed with the Planning Board a letter from Haley & Aldrich that approved the drainage system. Lowes requested that the Planning Board review and respond to Haley & Aldrichs assessment, but the Planning Board did not respond.
37. Condition 22 requires Lowes to provide dimensions for a swale intended to receive runoff water and engineering calculations to confirm the swales capacity. Condition 24 requires Lowes to revise its plans for the retaining wall to comply with the Haley & Aldrich recommendations. Condition 25 requires Lowes 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 Lowes proposed drainage system for Locus. A letter dated September 14, 2005 from Graves Engineering to the ZBA states that Lowes 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 Boards peer review process, the Planning Board indicated to Lowes 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 Lowes project.
39. Conditions 26 and 27 require Lowes 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 Lowes 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 Lowes 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 Lowes.
45. Lowes 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. Lowes is currently in the 25 percent design approval level for Section 61 Finding. [Note 18] Lowes is willing to fund and construct any mitigation measures required to meet final MHD approval. [Note 19]
47. The Planning Boards justification for Conditions 50-55, 57, and 58 in the Site Plan Approvals was Section 220.127.116.11 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 Lowes to install traffic signals and to maintain, service, repair, and/or replace them as necessary for up to five years after installation. Lowes 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 Lowes 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 Lowes should work with the WRTA to establish a bus stop on site. Lowes 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. Lowes 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 Lowes 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 Lowes 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 Lowes 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 Lowes 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 Lowes 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, Lowes 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 Lowes 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 Lowes to obtain an Earth Removal Special Permit authorizing earth removal within fifty feet of the site boundary. Lowes 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, Lowes 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 Lowes in violation of special permits for parking that Lowes 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. Lowes 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. Lowes plans to excavate 162,450 cubic yards of earth and to reuse approximately 31,450 cubic yards of earth as fill on site. Lowes plans to excavate 70,100 cubic yards of rock and plans to crush approximately 20,000 cubic yards of rock for use on site. Lowes 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. Lowes plans to use the Locus to operate the store for a period of approximately twenty years. Lowes will need to pay to have the excess earth and rock removed from Locus. Lowes 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 Lowes money to get rid of the excess material.
Of the sixty-four conditions established in the Site Plan Approvals, Lowes 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 boards decision to approve a site plan with conditions for a use as of right, the judges standard of review is one of reasonableness. See Y.D. Dugout, Inc., 357 Mass. at 31. When reviewing a planning boards 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 boards 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. Pship 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)). Lowes 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 Lowes 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 courts order striking conditions related to a planning boards 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]
Lowes agrees to Condition 56, but Condition 56 also requires Lowes 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 Lowes 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. Lowes 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 Boards 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 Lowes Argues Exceed the Planning Boards Jurisdiction
Lowes argues that Conditions 1, 2, 20, 60, 62, 50-54, 57, 58, and 64 exceed the Planning Boards 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 Lowes 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 Lowes must follow any procedures and conditions required by law by the appropriate enforcement authority. It goes without saying that Lowes 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 Lowes. 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, Lowes already agreed to commit to many of these traffic mitigation measures and that Lowes must by law comply with any mitigation measures required by MHD. Furthermore, Lowes 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 Boards jurisdiction and are invalid as a matter of law.
Conditions 50 and 51 contain language that requires Lowes 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 Lowes should maintain any of these traffic signals. Furthermore, I credit the testimony of Lowes 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 Lowes to maintain, service, repair, and/or replace certain traffic signals after installing them is invalid because it exceeds the Planning Boards jurisdiction.
Condition 58 requires Lowes 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 Lowes 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 Lowes over an area which MHD has no jurisdiction. Therefore, I find that the footnote to Condition 58 is unreasonable and invalid.
Condition 62 requires Lowes 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 Lowes to comply with the State Fire Code and quoting requirements from the State Fire Code, Condition 62 exceeds the Planning Boards jurisdiction. Therefore, I find that Condition 62 exceeds the Planning Boards 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 Lowes to file the Site Plan Approvals with the Registry and thus Lowes 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 Lowes to file its new decision with the Registry. Lowes 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 Lowes Requested Clarification
Lowes requested clarification from the Planning Board about Conditions 5, 7, 18, 32, and 61, but the Planning Board never responded.
Condition 5 requires Lowes to ensure that no residue, dust, or smoke is detectable beyond the property line. Lowes provided the Planning Board with a dust mitigation plan for Locus and argues that this plan satisfies Condition 5. Lowes 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. Lowes 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 Lowes 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. Lowes argues that its lighting fixtures satisfy Condition 7. Lowes 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 Lowes provided to the Planning Board includes top visors as an accessory to the lighting fixtures. Furthermore, Antonio Franco & Associates, the Planning Boards peer reviewer, found Lowes lighting plan acceptable. By including top visors in its lighting plan, Lowes satisfies the requirements of Condition 7.
Condition 18 requires that Lowes prohibit the discretionary use of truck horns in the rear or eastern side of the building. Lowes 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 Lowes from installing outside loudspeakers or paging systems in the conduct of business on Locus. The handheld walkie-talkie pager system proposed by Lowes 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 Lowes is in compliance with Condition 32 because the Site Plan Approvals state that Lowes Site Plan does not show any loud speaker or paging system.
Condition 61 prohibits Lowes from placing any retails products, inventory, or any other item outdoors. The Planning Board failed to clarify if this would include Lowes proposed outdoor home garden center. Lowes argues that Condition 61 prohibits sidewalk sales, not an outdoor home garden center, because Lowes discussions with the Planning Board focused on prohibiting sidewalk sales. Section 18.104.22.168 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 Lowes proposed home garden center.
The Planning Boards failure to respond to Lowes reasonable request for clarification of Conditions 5, 7, 18, 32, and 61 is unreasonable because it prevents Lowes from understanding how to properly comply with these conditions. In the absence of any evidence clarifying these conditions, I find that Lowes interpretations of these conditions are reasonable, and, as such, I find that Lowes interpretations of Conditions 5, 7, 18, 32, and 61 are valid and enforceable.
E. Conditions For Which Lowes Proposed Modifications
Lowes 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 Lowes 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. Lowes 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 Lowes site within 90 days after issuance of a Certificate of Occupancy and as warranted to ensure future compliance. Lowes proposed modification seeks to ensure that any additional noise is not simply attributed to Lowes 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 Lowes argues that the Planning Board lacks authority to police Condition 13s requirements. Lowes also argues that removing this language ensures that post-approval and post-store opening the Planning Board would not be able to put Lowes 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. Lowes 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 Lowes to obtain further approval from the Planning Board (as discussed earlier) and would allow the Planning Board to arbitrarily place Lowes Certificate of Occupancy in jeopardy post-approval. Lowes proposed modification appears reasonable because it allows for enforcement of the noise standard by the appropriate authority. [Note 25]
Condition 15 requires that Lowes 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. Lowes plans to use a noise damping compound and did indeed submit such details to the Planning Board. Lowes actions comply with Condition 15 and the Planning Boards failure to respond to Lowes submissions is unreasonable because Lowes has no way of knowing if the Planning Board is satisfied that Condition 15 has been fulfilled. Lowes 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. Lowes modification, to name the noise damping compound it has chosen as the noise damping compound in Condition 15, is reasonable.
Condition 17 requires that Lowes emergency generator shall be exercised only during daylight hours. Condition 17 read literally is clearly unreasonable because it would preclude Lowes from using its emergency generator in an emergency after daylight hours. Lowes 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 Lowes 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. Lowes 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 Lowes does not control or operate them. Lowes 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 Boards failure to respond to Lowes proposed modifications and reasonable requests for clarification of Conditions 11, 13, 15, 17, and 55 is unreasonable because it prevents Lowes 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 Lowes interpretations of these conditions are reasonable. Therefore, I find that Lowes 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 Lowes Argues Are Unreasonable and Invalid
Lowes argues that Conditions 14, 22-28, and 47 are invalid because they are unreasonable. Condition 14 requires Lowes 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 Lowes to have the slope on the northwestern side of Locus assessed by a geotechnical engineer to confirm slope stability. Haley and Aldrichs letter filed with the Planning Board addressed this issue, but the Planning Board acted unreasonably by failing to respond to Lowes request to review the letter. Requiring Lowes to conduct another geotechnical investigation would be redundant and therefore unreasonable. Therefore, I find that Condition 23 is unreasonable and invalid.
Condition 22 requires Lowes to provide dimensions for a swale intended to receive runoff water and engineering calculations to confirm the swales capacity. Condition 24 requires Lowes to revise its plans for the retaining wall to comply with the Haley & Aldrich recommendations. Condition 25 requires Lowes 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 Lowes already provided the Planning Board with calculations and design plans required in Conditions 22, 24, and 25. Furthermore, Graves Engineering, the Planning Boards 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 Lowes 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. Lowes 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 Boards statements about the drainage system needing to be elevated incorporated a modified Frimpter method. Moreover, Lowes proposed drainage system has already been approved by Graves Engineering as satisfying all local and state regulations and by the Water District. Requiring Lowes 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 Lowes 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 Lowes 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. Lowes argues that Condition 47 is unreasonable because it requires Lowes 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. Lowes argues that the current plan is reasonable and conforms to the Planning Boards intent to create visual screening between the wall and the abutting properties. Nevertheless, Lowes fails to demonstrate that Condition 47 is unreasonable. The to the extent feasible language indicates that Lowes 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 Lowes 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 Lowes 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 Lowes 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. Lowes 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
Lowes appeals the Planning Boards 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).
Lowes 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 Lowes plans to reuse some of the excavated material for construction, and that Lowes 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 Developments as-of-right use and Lowes need not apply for earth removal special permits under the Bylaw. As such, the Special Permit Denials are unreasonable, arbitrary, and capricious.
Lowes argues that the Planning Board has acted in bad faith in its actions related to the permitting of the Development. Lowes 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 courts findings. Lowes, 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 Boards 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
Dated: July 21, 2010
[Note 1] Although Lowes sought review of the Special Permit Denials in its complaint in Permit Session Case No. 352453, the Special Permit Denials were not argued in either the Joint Motion for Summary Judgment or the Joint Cross-Motion for Summary Judgment.
[Note 2] Adam Burney (Burney), the Town Planner, attended the first day of trial and sat at counsel table but did not speak. Because the Board of Selectmen had voted not to continue with the litigation, the Planning Board did not participate at the trial.
[Note 3] Lowes initially submitted a single Site Plan Application in March 2006, but the Planning Board instead required Lowes to submit three separate applications corresponding to the three parcels comprising Locus. Lowes Site Plan Applications related to a single Site Plan narrative.
[Note 4] As part of their 2006 Annual Report, filed with the Secretary of the Commonwealth, Lowes provided the response: retail sales to the request to: [b]riefly describe the business of the corporation.
[Note 5] Lowes did not believe that it needed to apply for an Earth Removal Special Permit but did so at the Planning Boards insistence that it would otherwise not proceed to review Lowes Site Plan Application.
[Note 6] It is questionable as to how potential noise from rooftop HVAC units relates to earth removal.
[Note 7] In this peer review process, the Planning Board engaged engineering consultants to review and opine on the elements of the Site Plan and Earth Removal Special Permit Applications, including whether design elements conform to good engineering practice and meet zoning requirements.
[Note 8] See 527 C.M.R. 10.03 (2006) (Any obstacle which may interfere with the means of egress or escape from any building or other premises, or with access to any part of the building or premises by the fire department in case of fire, shall be removed from aisles, floors, halls, stairways and fire escapes. Doors and windows designated as exits shall be kept clear at all times.).
[Note 9] Lowes proposed modification would add the following sentence to Condition 11:
It is understood that certain construction activities will be required as a prerequisite to the construction of the sound attenuation barrier wall, including clearing, grubbing, cutting and filling along the proposed fence line, installation of a temporary construction security fence, creation of an access way for equipment, materials and vehicles, the installation of required site stormwater pollution prevention and erosion control measures or other measures required by law or condition of a permit or approval.
[Note 10] According to the RSG report, a weighted average sound level called equivalent sound level (LEQ) is used frequently in environmental noise analysis to account for changes in noise over time. The report states that LEQ averages total pressure, and results in weighing loud and infrequent noises more heavily than softer and frequent noises.
[Note 11] According to the RSG report, the decibel scale can be weighted to emphasize human perceptions of annoying frequencies. The A weighting scale is the most common scale and is used in environmental noise analysis.
[Note 12] LAEQ 1-hour is the A-weighted version of LEQ over a period of one hour.
[Note 13] L90 is defined by the Department of Environmental Protections (DEP) Division of Air Quality Control (DAQC) as the background A-weighted sound level that is exceeded 90% of the time during equipment operating hours.
[Note 14] The record does not indicate who is the Towns designated code enforcement official.
[Note 15] Lowes modification of Condition 15 would read: The outside of the proposed trash compactor chute shall be treated with noise damping compound VDB-10 (or equivalent), which shall be reapplied as needed to maintain maximum effectiveness, consistent with the products technical data sheet.
[Note 16] The Frimpter method estimates the seasonal high water table at a site by comparing groundwater levels at the site to groundwater levels observed at United States Geological Survey (USGS) wells throughout Massachusetts.
[Note 17] Pursuant to G. L. c. 30, § 61,
All agencies, departments . . . of the commonwealth shall review, evaluate, and determine the impact on the natural environment of all works, projects or activities conducted by them and use all practicable means and measures to minimize [their] damage to the environment . . . . Any determination made by an agency of the Commonwealth shall include a finding describing the environmental impact, if any, of the project and a finding that all feasible measures have been taken to avoid or minimize said impact.
[Note 18] Final approval for a project comes after stages of approvals controlled by MHD put in percentages: 25 percent, 50 percent, 75 percent, and 100 percent.
[Note 19] The FEIR notes that Lowes committed to implement mitigation measures, which included the measures that the Planning Board incorporated in Conditions 51, 53, 54, 56, 57, and 58. Furthermore, in the Site Plan Applications, Lowes stated that it would perform the same mitigation measures.
[Note 20] Lowes would modify Condition 55 to read:
Consistent with the FEIR and Planning Board submittals, Lowes shall contact the WRTA to explore the possibility of establishing a stop for the Lowes store on the route 42 bus route, which currently passes by the site on Route 12 between downtown Worcester and the Town of Webster. Lowes will post WRTA bus schedules in its store.
In connection with its other stores, Lowes has come to arrangements similar to the one in its proposed modification.
[Note 21] Condition 56, however, will be modified as described hereinafter.
[Note 22] This court also finds Conditions 23-27, 49, and 54 unreasonable and invalid based on other grounds described hereinafter.
[Note 23] The modified version of Condition 56 should read as follows:
Prior to Site occupancy and again six months following the opening of the retail facility, Lowes shall conduct traffic counts in the Linda Avenue neighborhood to determine if vehicles are using the neighborhood as a short cut and whether traffic calming measures should be considered. Lowes shall be responsible for the installation of any traffic calming measures necessary. Prior to Site occupancy, Lowes shall place $25,000 in escrow to fund the implementation of traffic calming measures in the Linda Avenue neighborhood.
[Note 24] This court cannot identify any entity described as the State Division of Sanitation. Condition 20 is therefore modified by eliminating any reference to this entity.
[Note 25] Although it is unclear who would be the appropriate Town code enforcement official, the modification is reasonable because it does not designate the enforcement official but leaves it up to the Town to determine and then use the appropriate enforcement authority.
[Note 26] It should be noted that the Section 61 Finding stated that Lowes should work with the WRTA to place a bus stop on site. It is unclear whether this would require a bus stop on Locus itself or near Locus. Although Condition 55 is modified here, Lowes is still bound to follow any final traffic mitigation measures imposed by MHD.
[Note 27] It should be noted that the case law appears silent on the issue of whether earth removal that is required as part of site preparation in order to construct a building for its as-of-right use is considered an incidental use. Therefore, I apply the factors outlined in Henry to determine whether Lowes earth removal is incidental to its as-of-right use.
[Note 28] Pursuant to G. L. c. 40A, § 17, costs are granted only if a planning board acts with gross negligence, in bad faith or with malice. Lowes is denied costs for this action as the Planning Boards actions do not meet this standard.