WESTFORD VALLEY MARKETPLACE, INC. v. MICHAEL GREEN, FREDERICK PALMER, ANDREA PERANER-SWEET, KEVIN BORSELLI, and DENNIS GALVIN, As They Are Members of the TOWN OF WESTFORD PLANNING BOARD; and WESTFORD LC, LLC

In this case, Westford Valley Marketplace, Inc. (“Plaintiff” or “Westford Valley”), seeks judicial review under G. L. c. 40A § 17 of certain decisions (“Decisions”) of the Planning Board (“Board”) of the Town of Westford, whose members are defendants. The challenged decisions granted a Major Commercial Project approval, Planned Commercial Development approval, and Site Plan approval, each in the form of a special permit, to defendant Westford LC, LCC (“Westford LC”), in connection with a proposed 238,411 square-foot commercial development known as Cornerstone Square, to be located on land at Boston Road and Littleton Road, Westford, Middlesex County, Massachusetts. Following two days of trial, and a view of the locus, I now decide the case.

I. PROCEDURAL HISTORY

On March 7, 2008, Westford LC filed an action in the Land Court seeking to annul a denial of an application for special permit for a commercial project to be located at 83 Boston Road and 187, 191, 193, 197, 198, 199, and 203 Littleton Road in Westford. Westford LC, LLC v. Town of Westford, Land Court Permit Session Case No. 08 P.S. 373341 (filed Mar. 7, 2008) (“Westford I”). Westford LC filed another case in the Land Court, Westford LC, LLC v. Town of Westford, Land Court Permit Session Case No. 08 P.S. 378930 (filed Apr. 29, 2008) (Westford II), which was on May 8, 2008 consolidated with Westford I. On August 27, 2008, the parties attended a mediation session with REBA Dispute Resolution, Inc., conducted by former Appeals Court Justice, Rudolph Kass. On November 10, 2008, parties filed a joint Stipulation of Remand, seeking to return to the Planning Board for reconsideration. Orders for remand issued on November 13, 2008. On December 7, 2008, parties in Westford I and Westford II filed a stipulation of dismissal pursuant to Mass. R. Civ. P. 41 (a) (1) (i).

On or about January 20, 2009, Westford LC filed applications with the Board for approval of a Major Commercial Project, Planned Commercial Development, and Site Plan Approval for the construction of the Cornerstone Square project, consisting of 238,411 square feet of new mixed retail, personal services, office space, restaurants, and related infrastructure (including a wastewater treatment plant) location in ten buildings on the property located at 83 Boston Road and 187, 191, 193, 197, 198, 199, and 203 Littleton Road in Westford. The Westford Zoning Bylaw (“Bylaw”) vests sole authority to grant special permits for a Major Commercial Project (“MCP”) to the Planning Board. The Bylaw defines a MCP as one in which a building or building of 15,000 square feet or more of gross floor area are to be construtced, requiring more than 100 parking spaces, and generating more than 250 vehicle trips per day. The Planning Board is also the sole special permit granting authority for a Planned Commercial Development (“PCD”) under Section 6.4 of the Bylaw. Section 6.4.3.1 defines a PCD as one involving a tract of land 200,000 square feet or more in size in a Commercial Highway District.

The Board conducted public hearings on Westford LC’s applications for special permits on March 2, 2009; April 4, 2009; May 4, 2009; May 18, 2009; June 8, 2009; and June 22, 2009. At the June 22, 2009 hearing, the Board voted to grant (1) the MCP Special Permit under Section 9.3 of the Bylaw, (2) the PCD Special Permit under Section 6.3 of the Bylaw, and (3) Site Plan approval. Copies of the decisions (“Decisions”) were filed with the Westford Town Clerk on June 24, 2009.

Plaintiff filed its appeal of the special permits, pursuant to G.L. c. 40A, § 17, in the Middlesex Superior Court Department on July 14, 2009. Westford LC requested transfer of the case to the Permit Session of the Land Court Department pursuant to G.L. c. 211B, § 9 and G.L. c. 185, § 3A, and by order of Chief Justice for Administration and Management dated November 2, 2009, the case was so transferred. I held a case management conference on January 5, 2010 after which parties embarked on discovery. Following the expiration of the discovery period, parties returned to the Land Court on July 7, 2010 for a pretrial conference. On August 30, 2010 and August 31, 2010, the case was tried to me in Boston. The following witnesses testified: Joseph D. Peznola, Christopher Emelius, Robert Walker, Brent N. Hall, William F. Lyons, Jr., and Robert Sheehan. A court reporter, Karen Smith, was sworn to transcribe testimony and proceedings. On September 21, 2010, I took a view of the locus in the presence of counsel. Following the receipt of the trial transcript, parties filed posttrial briefs and proposed findings of fact and rulings of law on January 3, 2011, and January 4, 2011. I then took the case under advisement.

II. FINDINGS OF FACTS

On all of the testimony, exhibits, stipulations, and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and argument of the parties, I find and rule as follows:

1. The locus of this dispute is in the Town of Westford’s Commercial Highway Zoning District, which lies south of Interstate Route 495 (“I-495” or “Route 495”), along Littleton Road or Route 110.

2. Plaintiff is the owner of the property at 160 and 174 Littleton Road, Westford, Massachusetts, the location of the Westford Valley Marketplace I and Westford Valley II Marketplace shopping centers.

3. Westford Valley is a grocery-anchored neighborhood strip center located on Littleton Road in Westford. Westford Valley I, constructed in or around 1986, has several retail tenants including two banks, an eyeglasses store, fast food restaurant, athletic apparel store, card store, electronics store, and a Market Basket grocer. Westford Valley II, constructed in or around 1991, has a coffee shop, mattress store, shoe store, fabric store, dentist’s office, and restaurants. The aggregate square footage of both phases of Westford Valley is about 142,000 square feet.

4. Westford LC is the developer of a proposed “lifestyle center” called Cornerstone Square. A lifestyle center, as the term is used in this case, is an open-air shopping center featuring clusters of retail businesses, usually upscale specialty shops, with complementing restaurants, and a high degree of pedestrian access. Invitees park their vehicles once, and walk through the site’s pedestrian ways to visit the various shops.

5. The Cornerstone Square lifestyle center is a proposed 234,685 square foot development at the intersection of Boston Road and Littleton Road (Route 110) in Westford. The project encompasses approximately 26.03 acres north of Littleton Road (the “North Site”) and approximately 4.85 acres of land on the south side of Littleton Road (the “South Site”).

6. The intersection of Littleton Road (Route 110), Carlisle Road, and Boston Road is known as Minot’s Corner. Exit 32 off Route 495 lets out onto Boston Road, and vehicles may access Route 495 from Boston Road. There is no other access to Route 495 in the immediate vicinity. The I-495 ramps are only 800 feet to 1,000 feet away from Minot’s Corner.

7. Westford Valley does not abut the Cornerstone Square site. Cornerstone Square lies in the northwest quadrant created by the four-way intersection Minot’s Corner. Westford Valley lies in the southeast quadrant, separated from Carlisle Road by a parcel of developed commercial realty.

8. Littleton Road provides the sole means of access to Westford Valley. From Route 495, vehicles must take exit 32 onto Boston Road, make a left turn onto Littleton Road at Minot’s Corner, and make a right turn from Littleton Road into Westford Valley Marketplace.

9. Cornerstone Square will provide 994 parking spaces on the North Site and eighty-eight parking spaces on the South Site. Pursuant to a condition in the MCP Special Permit, “Upon determination by the Building Commissioner... that the additional parking spaces are needed to address an existing public health and/or safety issue or to resolve an ongoing violation of the Westford Zoning Bylaw the Applicant shall... design, permit, and construct, at its sole cost and expense, a parking garage consistent with [the] plan submitted to the Board[.]” 10. Cornerstone Square will comprise ten commercial buildings (eight on the North Site and two on the South Site) with units ranging in size from approximately 2,000 square feet to 28,000 square feet. One building, Building C, has approximately 5,300 square feet of office space on a second floor.

11. Two entry roadways will provide access to the North Site. Site Drive C will be a right-in/right-out movement located on Boston Road. The main entrance, Site Drive A, will be from Littleton Road and will be served by a proposed new traffic signalized intersection, which will also serve the entrance roadway to the South Site located on-axis across from the North Site entry.

12. The engineering firm, Hancock Associates, of which Joseph D. Peznola is a principal, supervised the application process for the state level permits, including review under the Massachusetts Environmental Policy Act (“MEPA”). Hancock Associates did the bulk of the non-traffic related engineering work involved with the project. For the traffic analysis, Hancock Associates turned to the firm GEOD Consulting (“GEOD”).

13. The engineering firm Fay, Spofford & Thorndike (“FS&T”) had prepared a Functional Design Report for the Massachusetts Highway Department (“MassHighway”), dated July 2009, and titled Signal and Intersection Improvements - Littleton Road (Route 110) from Minot’s Corner to Nixon Road. FS&T determined that, at evening and morning peak hours, the Minot’s Corner intersection functioned at level of service E, with some of the individual movements at level of service F, the lowest level of service.

14. The crash rate at Minot’s Corner is 3.01. The average crash rate for signalized intersections in the state is 0.93, and for the district which comprises Westford, 0.82. In fact, MassHighway has ranked the Minot’s Corner intersection among the top “safety plagued” intersections in the Commonwealth.

15. GEOD generated predicted trip distributions for the Cornerstone project. [Note 1] Based on its analysis, GEOD concluded that, without infrastructure improvements, by 2012, Minot’s Corner would be a failed intersection even under no-build scenarios. GEOD concluded the following infrastructure changes to Minot’s Corner would mitigate: (1) a second left turn lane on Boston Road southbound; (2) an additional left turn lane from Route 110 eastbound onto Boston Road northbound – this is currently a double left turn lane, GEOD predicted a third left turn lane would be required; (3) Route 110 eastbound should be upgraded to add a dual through/right turn lane to the existing two lanes, which are a through lane and right turn lane; and (4) the current through/right turn lane onto Carlisle Road should be upgraded to feature both a dedicated turn lane and a dedicated through lane.

16. Improvements to the Minot’s Corner intersection are not contemplated as part of the Cornerstone project. MassHighway has undertaken to perform upgrades on Minot’s Corner. FS&T was hired by MassHighway to design the Minot’s Corner improvements independently of the Cornerstone project.

17. Westford LC has undertaken to perform improvements to Route 110, Boston Road, and the I-495 interchange. A report titled Route 110 Westford Mitigation Improvements Plan was included in Westford LC’s Final Environmental Impact Report (“FEIR”), which was submitted to the Commonwealth as part of an earlier permitting process. The Route 110 Mitigation Plan proposed to: (a) signalize the intersection of Site Drive A and Route 110; (b) widen Route 110 along the frontage of the Cornerstone Site in Minot’s Corner to provide a five lane cross-section (two through lanes and an exclusive left turn lane eastbound westbound) at Site Drive A; (c) widen Boston Road northbound and the I-495 northbound ramp to provide two right turn lanes and appropriate merge back to a single lane on the ramp; (d) widen Boston Road to allow for the addition of a dedicated left hand turn lane northbound onto the I-495 southbound ramp; (e) remove a certain curb cut on Route 110 westbound; (f) reduce the Mass Bank Drive off Route 110 from two curb cuts to a single cut; and (g) implement a right in/right out for Mass Bank Drive.

18. The Town of Westford and Westford LC entered into a Development Agreement in connection with the permits and approvals granted by the Decisions. Compliance with the Development Agreement was incorporated into the Decisions as a condition of approval of each special permit.

19. The Development Agreement requires Westford LC to undertake certain major traffic mitigation measures, including making implementation of the Mitigation Improvements Plan mandatory. In addition to the Mitigation Improvements Plan, Westford LC must: (a) design and install sidewalks on both sides of Route 110 along the limits of the widened portion of Route 110 on the Cornerstone property; (b) perform traffic counts and evaluation of the safety and operation of the Minot's Corner intersection and Site Drives A and B per the schedule to be determined by the Planning Board in the Special Permit and Site Plan certificates of approval; and (c) design, have permitted, and implement the interim improvements to the Minot’s Corner intersection, including extension of Route 110 eastbound left turn lanes and timing/phasing adjustment to optimize operations.

20. Traffic Demand Management, another condition of the special permits, is an undertaking to limit or decrease trip generations by measures such as bike racks and bus stops.

21. The special permits were further conditioned on Westford LC’s agreement not to incorporate into development certain high traffic volume uses, like outdoor flea markets, fast food, drive-thru food or beverage windows, and limits the site to only one grocery store, and not more than four restaurants where only two are “high turnover.”

22. MassHighway’s finding, pursuant to G.L. c. 30, § 61 (“Section 61 Finding”), addressed to the Town, states: “With mitigation in place, the 2012 build scenario indicates the intersection will operate at level of service B or C” and that “There are no additional feasible means to avoid or minimize the project’s traffic impact at this location that the proponent could be required to implement.” Nonetheless, comparing the GEOD Traffic Impact Assessment data for 2008 “no build” and “build mitigated” for the Minot’s Corner intersection, five out of nine of the movements experience increased delays ranging from 34 seconds to 133 seconds of additional wait time. Two of the movements at Minot’s Corner (southeast left and northeast left) will experience downgrades in level of service under GEOD’s 2008 built-mitigated scenario. Five out of nine movements will operate at level of service F, compared with three out of nine in the no build scenario.

23. The improvements to Route 110 undertaken by MassHighway are independent of the Cornerstone Project. MassHighway has planned improvements to alleviate what it sees as “longstanding operational and safety deficiencies.”

24. Notwithstanding that MassHighway desires to undertake the Route 110 improvements even without the Cornerstone project, if and when implemented, the improvements to Minot’s Corner would mitigate the impact of Cornerstone Square. The amount of time between when Cornerstone Square could potentially be operational, and the completion of the improvements to Minot’s Corner is unknown and could be a year or years, but I am convinced, and so find as a fact, that there is a reasonable prospect that the contemplated improvements to Minot’s Corner and Route 110 will eventually be implemented.

25. As part of the FEIR submission, GEOD conducted a “weave analysis” which is something not regularly undertaken in a traffic study. GEOD did not predict problems stemming from this maneuver. Additional weave analysis provided to MassDOT in the FEIR prompted MassDOT to say that Site Drive C “should be conditionally allowed to serve both right in and right out movements.” In peer review conducted by FS&T, that firm also concluded that the weave movement would not negatively impact flow on Boston Road. In a letter from the town to the Secretary of Environmental Affairs, the town adopted the conclusions in FS&T’s weave analysis, and wrote, “Based on the analysis included in the submission and an independent assessment with a slight modification in the application of HCM [Highway Capacity Manual] analysis procedures, [Note 2] [FS&T] concluded that the introduction of a weave on Boson Road between the I-495 ramps and the proposed site drive will not negatively impact flow on Boston Road.”

26. The Town of Westford Zoning Bylaw provides at 9.3A.4 (6) (E) and (F):

III. DISCUSSION

Westford Valley challenges the Decision on the grounds that (1) the Board improperly determined that the project “adequately and appropriately controls ‘the size, scale, and impacts of’” a Major Commercial Project pursuant to Section 9.3A.1 of the Bylaw; (2) the Board improperly determined that access and egress be provided “in a manner than causes the least impact to the surrounding neighborhoods” pursuant to Section 9.3A 6(2); (3) the Board failed to give “due regard to the nature and condition of all adjacent structures and uses” and failed to ensure that there will be “safe entrances and exits provided and sufficient off-street parking spaces” pursuant to Section 6.4.6 and Section 6.4.6.2 of the Bylaw; and (4) the Board acted in a manner contrary to law by purporting to make the special permits lapse after three years (absent substantial use or construction) when G.L. c. 40A, § 9 requires such permits lapse in two years.

Before I can reach the merits of Westford Valley’s appeal, I must ensure they have the requisite standing to maintain this action.

A. Standing

Under G. L. c. 40A, § 17 only “persons aggrieved” have standing to appeal a decision of a local special permit granting authority. G.L. c. 40A, § 17. If a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s action, then he or she qualifies as a “person aggrieved.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term “person aggrieved” is not to be narrowly construed, the plaintiff’s injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be “special and different from the concerns of the rest of the community”); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest”). “Aggrievement requires a showing of more than minimal or slightly appreciable harm.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). In addition, the injury claimed by the plaintiff also must be to a “specific interest that the applicable zoning statute, ordinance, or by-law at issues is intended to protect.” Standerwick, 447 Mass. at 30.

There is an initial presumption that a plaintiff who is entitled to notice of board hearings is a “person aggrieved,” [Note 3] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-4 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff “must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided “must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of “credible evidence,” the evidence offered must provide specific factual support for each claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. “Conjecture, personal opinion, and hypothesis” are insufficient. Butler, supra, at 441.

Here, plaintiff Westford Valley is not entitled to the presumption of standing because they are not an abutter (or an abutter to an abutter) within 300 feet. The question of aggrievement is to be decided on all the evidence. Standerwick, 447 Mass. at 32-33.

Westford Valley introduced evidence in the form of opinion testimony from Robert Sheehan, a vice president at a commercial real estate services firm, that material increases in traffic congestion around a commercial leasing site like Westford Valley could have an adverse impact on rental income potential. Specifically, Mr. Sheehan testified that a congested environment could deter potential tenants from setting up at centers like Westford Valley. I generally credit Mr. Sheehan’s testimony that increased congestion could visit itself upon the bottom line of a commercial shopping center. Notwithstanding the counter arguments made by Westford LC, that heavy “pass-by” traffic might be a boon to such a shopping center, the inference I make based on all the evidence is that at a certain level of congestion, business will suffer.

To have standing, Westford Valley need not demonstrate by a preponderance of the evidence that traffic congestion will reach these deleterious levels. Butler, 63 Mass. App. Ct. at 441. The case law requires that a plaintiff offer only “credible evidence” to demonstrate their standing and have the case decided on the merits. Butler, supra, at 441; see also Marhefka v. Zoning Bd. of Appeals of Sutton, No. 10-P-72, slip op. at 3 (Mass. App. Ct. May 13, 2011) (“[Trial court] judge must determine, in the first instance, whether the plaintiffs have met their burden to submit credible evidence of the alleged injury.”). In a case where, as here, the plaintiff’s claimed aggrievement is based on the same problems that allegedly infect the challenged decision of the board – traffic congestion – a determination that the plaintiff has standing does not decide the ultimate issue.

Based on the extensive testimony at trial from traffic engineers on both sides, I find and rule that Westford Valley has presented credible evidence to support sufficiently its standing. GEOD’s 2008 traffic projections show increased delays for traffic on Route 110, even with the implementation of traffic mitigation measures. Based largely on the testimony of Mr. Lyons, I find that delays experienced by westbound traffic on Route 110 could plausibly increase the length of the queue along Route 110 in the direction of the entrance to Westford Valley Marketplace. Traffic queues of this length would interfere with Westford Valley’s invitees attempting to exit the Westford Valley Marketplace by making a lefthand turn onto Route 110. Moreover, despite strong evidence that most of Cornerstone’s traffic will approach from I-495, I find it plausible that the presence of the Cornerstone Square lifestyle center will increase the overall volume of traffic on Route 110, and it is plausible that this increase will make it more difficult for Westford Valley’s invitees to turn from Route 110 into the Westford Valley Marketplace, or to exit the shopping center by turning onto Route 110. Plaintiff has presented at least a plausible case for these consequences, and I find they would rise above the level of mere impact and amount to actual injury to an interest protected by zoning. See Kenner, 459 Mass. at 121-22. Having determined there is a plaintiff with standing to maintain this zoning appeal, I now review the merits of the case.

B. Merits of the Special Permits

My review of the challenged Decisions of the Board involves a “‘peculiar’ combination of de novo and deferential analyses.” Wendy’s Old Fashioned Hamburgers v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954)). I must review the evidence and make findings of fact without deference to the Board’s findings. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953); Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). In this review, I am not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

This review is, however, circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing an appeal under the zoning act is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).

It follows, therefore, that the court may overturn a decision of a local board only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

“Site plan review has to do with the regulation of permitted uses, not their prohibition. If the specific area and use criteria stated in the by-law are satisfied, the board does not have discretionary power to deny approval, but instead is limited to imposing reasonable terms and conditions on the proposed use.” Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 , 373-74 (2008) (internal elision and citation omitted).

1. Three-Year Lapse

Section 9 of G.L. c. 40A provides in relevant part:

Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not more than two years, which shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause.

The MCP Special Permit contains, as condition 13, language that provides “[t]his approval shall lapse within three (3) years from the date of the approval unless substantial use or construction of the site has commenced. Substantial use or construction on the site will be determined by a majority of the Planning Board. If substantial use or construction has not commenced within two (2) years, the Applicant shall petition the Planning Board for an extension of time.” Westford Valley argues not only that, to the extent this language purports to extend the statutorily mandated two-year time limit, it is invalid, but also that this language renders the entirety of the MCP permit unlawful. Westford LC concedes that the Board could not extend the period after which a special permit will lapse beyond what is set forth in the zoning act, but argues the remainder of the condition is consistent with state law.

There is no question that language in condition 13 of the MCP Special Permit Decision is not effective to extend the rights of Westford LC beyond the limits of G.L. c. 40A, § 9, however, I am not convinced this requires an annulment of the entire Decision. The better course is to reform the condition to bring it into accord with G.L. c. 40A, § 9. The condition itself is wholly severable from the remainder of the Decisions, there is no requirement under the zoning act that a special permit include a lapse provision. Section 9 of G.L. c. 40A requires that a local bylaw or ordinance set forth the lapse provisions. And the Westford Zoning Bylaw, at Section 9.3.6, provides that special permits will lapse after twenty-four months from the date which the approval is filed with the Town Clerk.

2. MassHighway Road Improvements

To the extent I find the MassHighway plans for Route 110 will be implemented, they will mitigate traffic concerns. To the extent that those improvements require state takings of land from Westford Valley, or the creation of a median that would have a negative impact on Westford Valley, that does not give Westford Valley standing in this lawsuit (which they have based on other aggrievement), nor does it show that the Board failed to take into account the impact of the Cornerstone project on the surrounding areas. These disputes are between Westford Valley and the Commonwealth, the Cornerstone project has no impact on whether this happens or not. Given the reasonable likelihood that Commonwealth will in fact implement these improvements, the Board was not arbitrary or capricious to the extent they included these improvements in their calculus when approving the Cornerstone Square project.

3. Traffic

Traffic congestion is the center of this dispute. Westford Valley’s arguments that the Board improperly determined that the project “adequately and appropriately controls ‘the size, scale, and impacts of’”a Major Commercial Project, improperly determined that access and egress be provided “in a manner than causes the least impact,” failed to give “due regard to the nature and condition of all adjacent structures and uses” and failed to ensure that there will be “safe entrances and exits provided and sufficient off-street parking spaces” are all essentially issues of traffic impact and mitigation.

The Board’s approval of the Cornerstone Square project amounts to a conclusion that the likely traffic impacts on the locus as a result of the Cornerstone Square project were not sufficiently deleterious to justify denial. After all, the proposed use is one allowed of right, and it is only the square footage and number of parking spaces that triggered the requirement to obtain special permits and site plan review. To uphold the Board’s Decisions, I need only find, in a de novo review, facts sufficient to support “any rational basis” for the Board’s decision. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

My review of the facts starts with trip distribution numbers. GEOD, tasked with coming up with trip distribution figures, began by using Institute of Transportation Engineers (“ITE”) trip generation numbers. [Note 4] To estimate trip distribution, GEOD, at the request of the Town and MassHighway, employed a “gravity model” which involves looking at census data, population data, other land uses, similar land uses within a prescribed distance, among other factors, to predict the movements of vehicle traffic to and from the proposed development. GEOD’s gravity model assumed a one percent background population growth rate and, in what would end up being a controversial choice, assumed that Cornerstone would draw traffic from a ten-mile radius on highways and a five-mile radius on local roads (the “trade area”).

Westford LC’s July 2007 FEIR reported average daily vehicle trips would be 9,527. In its Section 61 Finding, MassHighway determined that there would be 11,839 vehicle trips to and from the site during the average weekday. After working with Conley Associates, who were engaged by the town in 2009 to conduct peer review, GEOD adjusted its trip generation numbers to 13,988 weekday trips.

Robert Sheehan, Vice-President of Research at Keypoint Partners testified that the promotional materials for Cornerstone claim that it will draw customers from a fifteen to twenty minute drive area. This conflicts with the “trade area” used for the gravity model to calculate trip generation. After comparing the Cornerstone plans to two existing lifestyle centers, Wayside Commons in Burlington, Massachusetts, and Brookside Shops in Acton, Massachusetts, Mr. Sheehan opined that a more accurate “trade area” for Cornerstone Square would be ten to fifteen miles, and that GEOD’s trip distribution figures underestimate the amount of traffic Cornerstone is likely to get. William F. Lyons, Jr., Traffic Engineer and President of Fort Hill Infrastructure Services, opined that GEOD’s Saturday trip generation numbers for Cornerstone are low, particularly along 110 in front of Westford Valley.

On balance, I find that Westford LC’s 13,988 figure is probably on the low end, but is not an unreasonable estimate. As Mr. Lyons testified, there are always legitimate disagreements in professional opinion. The 13,988 number is not so patently incorrect or implausible as to render the Decisions of the Board suspect, arbitrary, capricious or without basis.

The next argument made by Westford Valley to show that Westford LC and the Board have underestimated the potential impacts on Minot’s Corner is based on a traffic maneuver known as a “weave.” Traffic exiting Route 495 southbound onto Boston Road desiring to make a turn at Minot’s Corner was the subject of a “weave analysis” conducted by GEOD. A weave analysis studies the safety of a vehicle moving across lanes of traffic, the variables include, at least, the number of lanes to cross, and the amount of traffic in those lanes.

Plaintiff’s concern is that the proposed Site Drive C that exits onto Boston Road would further exacerbate what is already a difficult weave maneuver. Mr. Lyons testified that, as a result of the relatively short weave section (i.e., the distance between the I-495 exit ramp and Minot’s Corner), some vehicles would be subject to an increased likelihood of an accident, and an increased degree of inconvenience and discomfort. Moreover, according to Mr. Lyons, the decrease in vehicle speed required to make this weave maneuver would cause a degradation in service at the Minot’s Corner intersection. Making things worse, according to Mr. Lyons, is the fact that analysis of level of service of intersections assume frictionless approaches – they do not account for pre-intersection degradation caused by a weave maneuver – and are thus likely to make predictions of level of service that artificially inflate the rating. Without accurate level of service predictions, it is difficult if not impossible to impose mitigation measures that will prove adequate in the long term.

Here, Plaintiff has not convinced me that the weave maneuver will cause degradation to the level of service at Minot’s Corner in a way that is not reflected in the projections. Site Drive C is only “conditionally allowed to serve both right in and right out movements.” MassHighway has reserved the right to close the right-out movement if the “safe operation” of Boston Road is compromised. I find that with the mitigation measures in place, and the legitimate professional disagreement as to the impact on traffic from weave maneuver, that the Board’s Decisions were not for this reason arbitrary or capricious.

Levels of service at the Minot’s Corner intersection is the next factual dispute. Westford Valley argues that the Decisions violate the Bylaw by allowing new construction in a way that degrades levels of service, and does not provide for safety improvements to a “dangerous intersection,” both requirements that Westford Valley claims flow from Section 9.3A.4 (6) (E) and (F) of the Bylaw. I am unconvinced by this argument.

Section 9.3A.4 (6) (E) states that the “suggested” level of service of intersections affected by new construction is level of service D, and goes on to make provisions for the case where a project will not meet the “suggested standard.” I do not construe this section of the Bylaw as an absolute mandate. The Bylaw states “where such suggested standard is not met” that the Planning Board “may require” (my emphasis) the applicant to provide plans for either achieving the desired level of service, or maintaining existing conditions. Again, the Bylaw does not use the mandatory “shall require” and I will not read into the Bylaw mandates that plainly are not there. [Note 5]

I am convinced, however, that traffic congestion at the Minot’s Corner intersection will be, to some extent, worse after Cornerstone Square is operational. The issue becomes, in this case, whether the Board’s decision to permit the Cornerstone Square project in light of that determination was arbitrary or capricious. I rule that it was not.

For one, the fact that Minot’s Corner is slated for major improvements by MassHighway means that increased traffic congestion is only temporary. Moreover, I find that, in light of Westford LC’s undertakings to improve portions of Route 110 and Boston Road, the impact on Minot’s Corner has been mitigated. As I find the evidence to have demonstrated, GEOD’s 2008 “build mitigated” projections show that five out of nine of the movements experience increased delays ranging from 34 seconds to 133 seconds of additional wait time when compared to the “no build” projections. This results in the level of service being downgraded for two of the nine movements.

On final analysis, none of these delays is so serious as to render the Decisions of the Board unreasonable, particularly given the Route 110 improvements that will be undertaken, at some point, by the Commonwealth. No appellate decision has been presented to me that stands for the proposition that every time a local board permits a development that will increase traffic, that decision is invalid. Rather, I am left with a deferential standard of not substituting my judgment for the judgment of the Board, of being concerned with “the validity but not the wisdom of the board’s action.” Wolfman, 15 Mass. App. Ct. at 119.

Finally, I specifically do not find the complaints about Cornerstone’s failure to provide bicycle lanes and sidewalks along the length of Route 110 to be compelling. I am not convinced the Westford Bylaw requires a special permit applicant to construct sidewalks on the real property owned by unrelated third parties, and would have serious doubts about the validity of a bylaw, or a planning board rule, that purported to require such a thing.

*****

I find and rule that the Board did not exceed its authority in granting the Major Commercial Project Special Permit, the Planned Commercial Development Special Permit, and Site Plan Review to Westford LC, LLC. The Decisions are upheld.

Judgment accordingly.

Charles W. Trombly

Justice

Dated: May 20, 2011.