NEWPORT MATERIALS, LLC, and 540 GROTON ROAD, LLC vs. MICHAEL GREEN, ANDREA PERANER SWEET, FREDERICK PALMER, DENNIS GALVIN and KEVIN BORSELLI, in their capacity as members of the PLANNING BOARD OF THE TOWN OF WESTFORD, and not individually, and the TOWN OF WESTFORD

Plaintiffs Newport Materials, LLC ("Newport") and 540 Groton Road, LLC ("Groton") (together, "Plaintiffs") filed their unverified complaint on May 18, 2010, pursuant to the provisions of G. L. c. 40A, § 17, 1) appealing the decision of Defendant Westford Planning Board (the "Planning Board") which denied two special permits and site plan review in connection with the proposed development of an Asphalt Manufacturing Facility (the "Project") in the Town of Westford (the "Town"), 2) seeking a judicial determination, pursuant to G. L. c. 240, § 14A, of provisions of the Westford Zoning Bylaw (the "Bylaw") relative to the definitions of "Light Manufacturing" use and Major Commercial Project ("MCP"), and 3) seeking a declaratory judgment, pursuant to G. L. c. 231A, of whether the Project is a "Light Manufacturing" use or a MCP. [Note 1] A case management conference was held on June 30, 2010.

Defendants the Planning Board and the Town (together, "Defendants") filed their Answer to First Amended Complaint on July 13, 2010. On July 29, 2010, Michael Donnelly, Marie Burnham and John Pecora filed a Motion to Intervene, which was denied by Order dated August 12, 2010.

Plaintiffs filed their Motion for Partial Summary Judgment on September 13, 2010, together with supporting memorandum, Statement of Material Facts, and Appendices containing Affidavits of Marc J. Goldstein, Esq., Brian C. Levey, Esq., Douglas C. Deschenes, Esq., Christopher M. Lorrain, P.E., and Richard A. DeFelice ("DeFelice") (principal of Newport). On October 28, 2010, Defendants filed their Opposition to summary judgment motion, together with supporting memorandum, Statement of Additional Facts, and Appendix containing the Affidavits of Robert J. Michaud, P.E., and Matthew Hakala (Building Commissioner). Plaintiffs filed their Reply on November 8, 2010, together with Affidavits of James E. Winn, P.E., John G. MacLellan III (principal of abutter to Newport), and Supplemental Affidavit of Richard A. DeFelice. Plaintiffs also filed their Motion to Strike Portions of Affidavit of Robert J. Michaud, P.E. On November 30, 2010, Defendants filed an Opposition to the Motion to Strike and supplemental memorandum in support of their Opposition to summary judgment motion, together with Supplemental Affidavit of Robert J. Michaud, P.E. A hearing was held on all motions on December 1, 2010, and the matter was taken under advisement. On December 10, 2010, Plaintiffs filed their Reply to Defendants' Supplemental Submissions, together with Second Supplemental Affidavit of Richard A. DeFelice. Subsequently, both parties filed a number of letters (December 13, 2010, December 22, 2010, January 3, 2011) with this court attempting to clarify the Supplemental Submissions.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find the following material facts are not in dispute:

1. Groton owns an 115.52 acre parcel of land on Groton Road in Westford, Massachusetts ("Plaintiff Property"). Plaintiff Property is located in an Industrial A ("IA") zoning district and is used as a rock quarry and materials processing operation. Removal of sand and gravel, quarrying and mining, and certain Light Manufacturing uses are uses allowed as of right in an IA zoning district. [Note 2] [Note 3]

2. Newport has entered into a lease with Groton for approximately two acres of Plaintiff Property ("Locus"). Newport intends to construct the Project on Locus. The Project will be comprised of a hot mix asphalt drum, a hot oil heater, oil and asphalt storage tanks, and a materials processing yard. The Project will operate with between three (3) and five (5) employees. The Project does not consist of 15,000 square feet or more of gross floor area in any building or combination of buildings.

3. By memorandum (the "Building Inspector Memorandum") to "Whom It May Concern" (addressed to the Westford Town Planner) dated March 18, 2009, the Westford Building Inspector states that "[various factors] leads me to agree that [the Project] could be considered under light manufacturing . . . I therefore concur that the use [of the Project] is justified as a Light Manufacturing use and should go before the planning board to address the special permit with site plan review."

4. On April 9, 2009, Newport applied to the Planning Board for Site Plan Review for the Project, as well as a Special Permit for storage of #2 fuel oil in the Water Resource Protection Overlay District ("WRPOD"), and a Special Permit for a MCP. [Note 4] [Note 5] A site plan filed with the Planning Board and titled "Asphalt Manufacturing Facility" showing the Project is dated April 6, 2009 and prepared by Land Tech Consultants.

5. The Planning Board held twenty-one sessions of a public hearing commencing on May 4, 2009 and closing on April 5, 2010. On April 20, 2010, the Planning Board voted 4-1 to deny all three applications, primarily based on a "finding that the [Project] is not light manufacturing as defined in the [Bylaw] and the application therefore has no standing" (the "Planning Board Decisions"). The Planning Board Decisions were comprised of three separate decisions, the Site Plan Review Decision, the WRPOD Decision, and the MCP Decision. [Note 6]

6. In the Site Plan Review Decision, the Planning Board determined that the Project was not light manufacturing as defined in the Bylaw because it would generate more noise than allowed and would impact the health and welfare of persons closely situated to the Project. The Planning Board also reasoned that "Heavy Manufacturing" is not permitted because it is not defined in the Bylaw and that this Project qualifies as such a use. Finally, the Planning Board also noted that traffic would be a major issue. The Site Plan Review Decision made no reference to the light manufacturing requirement that the Project must employ more than four people.

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Motion to Strike.

I must first address Plaintiffs' Motion to Strike Portions of the Affidavit of Robert J. Michaud, P.E. ("Michaud"). Plaintiffs question Michaud's experience and expertise as an expert witness (registered professional engineer) and argue that his Affidavit is conclusory and speculative. [Note 7] In their opposition to the Motion to Strike, Defendants filed a Supplemental Affidavit of Robert J. Michaud. The Supplemental Affidavit, together with the original Affidavit, support Defendants' argument that the two Affidavits are not speculative and that Michaud has the expertise required for his traffic analysis. As to his expertise relative to asphalt plants, Michaud directed and participated in over 500 transportation impact studies and has also worked on other asphalt projects. Plaintiffs argue that Michaud has not owned or operated an asphalt plant but this alone is not an appropriate reason to strike portions of his Affidavit. Michaud has indicated that the appropriate method for determining traffic generation is to evaluate production levels. This method is consistent with the Institute of Transportation Engineers' (ITE) guidelines and the Town's own Guidelines for the Preparation of a Traffic Impact Assessment, and Michaud has applied this method to analyze production and traffic generation at a similar project which also involved an asphalt plant. Plaintiffs question Michaud's statement that "peak production for the proposed facility could be substantially greater that 2,000 tons per day for extended periods - particularly summertime periods when road paving projects are typically at their highest seasonal levels, although there could be other extended periods of peak production, depending on market demand." However, it appears that Michaud's estimation was based on Plaintiffs' own Department of Environmental Protection (DEP) permit which authorizes production up to 60,000 tons per month while operating 13 hours a day on weekdays. Plaintiffs also do not dispute that the Project was designed to produce up to 400 tons per hour indicating that daily production could far exceed 2,000 tons. Further, the fact that production can potentially be much greater in the summertime as a result of increased demand is supported by the Affidavit of DeFelice. For these reasons, Michaud's expertise is appropriate for him to render an opinion as to production and resulting traffic, and his opinions are not speculative since they are based on real data. As a result of the foregoing, I shall not strike either of Michaud's Affidavits.

The central issue in this case is whether the Project is a Light Manufacturing use (the basis for all three Planning Board Decisions). In their Partial Summary Judgment motion, however, Plaintiffs only argue that the Planning Board Decisions are arbitrary and capricious, that the Planning Board does not have the authority to make a determination as to use, that a permitted use should not be required to obtain a MCP Special Permit, and that the WRPOD Special Permit was not relevant to the Project. Defendants argue that the Planning Board Decisions were not arbitrary and capricious, that the Planning Board has the authority to make a determination as to use, and that both the MCP Special Permit and the WRPOD Special Permit are required. I shall examine each of these issues in turn.

Site Plan Review.

Plaintiffs argue that the Project is an as of right use, and therefore the Planning Board cannot deny the Site Plan Review, but can only regulate it. Defendants argue that the Project is not an as of right use, and therefore the Planning Board can deny the Site Plan Review. The use involved in the Project, thus, is the critical issue. The parties also do not agree on the process to determine the use of the Project. Plaintiffs contend that the Building Inspector is the party to determine use, and he has determined that the Project involves Light Manufacturing use, which is a use allowed as of right. Defendants contend that the Planning Board is the party to determine use, and the Planning Board determined that the Project does not involve Light Manufacturing use.

A. Jurisdiction as to use.

The first issue to address is whether the Planning Board had the authority to make a determination as to the use of Locus as part of its Site Plan Review. Plaintiffs argue that the legal use of property is addressed in G. L. c. 40A, § 7, and that under that section, the Building Inspector rather than the Planning Board has the authority to make a determination as to use. [Note 8] Defendants argue that G. L. c. 40A, § 7 gives the Planning Board the authority to make such a use determination. G. L. c. 40A, § 7, however, is not determinative of this jurisdictional issue.

It is well established that site plan review is a creature of municipal, not statutory, origin. Osberg v. Planning Board of Sturbridge, 44 Mass. App. Ct. 56 , 57-58 (1997) ("[a]lthough site plan review is not expressly recognized in our statutes as an independent method of regulation, some communities have introduced it into their zoning by-law as a means of controlling the aesthetics and environmental impacts of land use . . . Site plan review may be attached either to a special permit process for uses that are not as of right or to the issuance of a building permit for uses that are of right"). The State Zoning Act, G. L. c. 40A does not mention site plan review. Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 139 (2000). A town or city may use site plan review as a method of regulation but not prohibition of as of right uses. Y.D. Dugout, Inc. v. Bd of Appeals of Canton, 357 Mass. 25 , 31 (1970); Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 280 (1986). It follows that a municipality may prohibit a use which is not an as of right use by denying a site plan.

The Bylaw must be interpreted to determine whether the Planning Board has the authority to deny a site plan outright on the basis that the proposed use is not an as of right use. This court must first determine whether site plan review is required for the Project. Section 9.4.1 of the Bylaw indicates that the Project is subject to site plan review because the Project appears to fall within the meaning of "[c]onstruction....of a nonresidential....structure...." [Note 9]

Plaintiffs' principal argument is that the Bylaw requires the Building Inspector to enforce and administer the Bylaw, and therefore it is the Building Inspector who makes a determination as to use. Moreover, they argue that the Building Inspector has found that the Project constitutes a Light Manufacturing use. [Note 10] [Note 11] However, the Bylaw does not indicate that the Building Inspector has any specific authority as to use determination since the language of the Bylaw consistently limits the Building Inspector's authority to the enforcement and administration of the Bylaw. [Note 12] Section 9.4.3.1 provides "[t]he Planning Board shall review and approve the site plan, with such conditions as may be deemed appropriate, within sixty (60) days of its receipt, and notify the applicant of its decisions." Section 9.4.3 of the Bylaw states that an approved site plan is required before the Building Inspector can issue a building permit. Section 9.4.3.3 states that the Planning Board must first approve a site plan before an application for a special permit or variance is considered. Since section 9.4.3 conditions the Building Inspector's ability to issue a building permit on the Planning Board's site plan approval, it makes sense that the Planning Board is vested with the authority to make a determination as to use. While the case at bar does not yet involve a building permit, this section is instructive as to who is vested with approval authority. It would make little sense procedurally to give the Building Inspector the authority to determine use when the Planning Board must first approve a site plan since the approval or denial is directly related to whether a use is permitted as of right or not.

Plaintiffs argue that it is common practice in the Town for land use counsel to seek the opinion of the Building Inspector as to use before investing in a project. However, while this may be Plaintiffs' understanding with respect to a use determination, the Building Inspector himself indicated in his Affidavit that the Building Inspector Memorandum was not more than a "preliminary opinion" based on limited information with which he had been provided at that time. He also disagrees with the statement that it is "custom and practice" for applicants to seek his opinion as to whether a use is allowed as of right. In fact, the Building Inspector indicated that he cautions applicants seeking advice that such advice is only preliminary.

Plaintiffs further argue that the Bylaw does not expressly, impliedly, or inherently vest the Planning Board with authority to make a use determination when reviewing a site plan. While the Bylaw does not provide express authority to the Planning Board to make a use determination, a number of sections of the Bylaw indicate that there was legislative intent to give the Planning Board such authority. According to Section 9.4.4 (10) of the Bylaw, a site plan will be approved by the Planning Board only if it "[complies] with all applicable provisions of this Zoning Bylaw." [Note 13] Plaintiffs contend that since this provision is included in the "Plans" section of the Bylaw that it is was only intended to apply to the contents of a site plan rather than to use. Such an interpretation, however, is not supported by Section 9.4.7 of the Bylaw, since that section makes it clear that the Planning Board makes a decision based on what is "designed in the Site Plan," and therefore it is likely understood that the Planning Board also considers the "Plan" requirements when making a use determination. [Note 14] Finally, such a limitation would have been added by the legislature had it been intended to apply only to the technical aspects of the applicant's site plan. Section 9.4.7 of the Bylaw also mentions "the proposed land use" as one of the criteria to be considered by the Planning Board. This language indicates that the Planning Board has the right to make a use determination.

The fact that the Planning Board made a use determination with respect to the Site Plan indicates that the Planning Board has interpreted its Bylaw in a way so as to give the Planning Board authority to determine if a proposed use complies with zoning. When a issue arises as to the interpretation of a Bylaw, the Planning Board is given deference as to how it understands and interprets its own bylaws. Duteau v. Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). The court must construe a zoning bylaw "in accordance with ordinary principles of statutory construction, with some measure of deference given to the board's interpretation." APT Asset Mgt. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000). For the court to reverse the Site Plan Review Decision, it would have to find that such decision is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). In this case, the Planning Board denied the Site Plan for specified reasons, including concern over noise, traffic, and the health and welfare of neighbors to the Project. These concerns each contributed to the Planning Board's determination that the Project would not constitute a light manufacturing use. With respect to Plaintiffs' argument that the decision of the Building Inspector in the Building Inspector Memorandum was not appealed pursuant to G. L. c. 40A, § 8, and is therefore res judicata, the Building Inspector Memorandum does not appear to be an appealable decision, but instead an advisory opinion. [Note 15] G. L. c. 40A, § 7 provides:

[i]f the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.

G. L. c. 40A, § 8 provides:

[a]n appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter . . . or by any person including an officer or board of the city or town .. . aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.

The Building Inspector Memorandum does not appear to meet the requirements of the statute, as it was not issued relative to an request for a building permit or a request for enforcement, nor does it appear to be an "order or decision" as it was generally addressed not to Plaintiffs but to the Town Planner and "To Whom It May Concern." [Note 16] There was no party aggrieved at that time as the only effect of the Building Inspector Memorandum was to allow a special permit process to proceed through the Planning Board or the Zoning Board of Appeals. As a result of the foregoing, I find that the Planning Board had the authority to determine whether the proposed use of Locus was an as of right use. [Note 17]

B. As of right use.

The Site Plan Review Decision determined that the Project was not a Light Manufacturing use based on specific findings in that decision, as discussed, supra. Plaintiffs' Motion for Partial Summary Judgment and the memoranda submitted on behalf of both parties, however, do not argue the merits of the definition of Light Manufacturing use or the findings of the Planning Board; rather they argue the issue of who had the authority to determine use. Plaintiffs have requested, through a Proposed Order on remand, that a remand address a determination of whether the Project is a Light Manufacturing use pursuant to the Bylaw. [Note 18]

However, the Planning Board has already made findings relative to this issue, and it is therefore unclear as to why a remand is necessary in this regard. There is the related factual issue of the number of employees hired by Newport, which is an issue that alone might be determinative of the zoning issue. As discussed, infra, the parties shall attend a status conference to discuss how to proceed on this issue.

WRPOD Special Permit.

The next issue to address is whether the Planning Board properly denied the WRPOD Special Permit. On April 9, 2009, Plaintiffs filed, pursuant to the provisions of Section 8.1 of the Bylaw, for a WRPOD Special Permit for "a 10,000 gallon [aboveground] tank for the storage of #2 fuel oil" on Locus. [Note 19] Section 8.1.8 of the Bylaw requires that the "special permit maybe granted if the [Planning Board] determines that the intent of this Section 8.1 as well as the specific criteria herein are met." [Note 20] The WRPOD Decision stated as its reason for denial that "the application has no standing due to the proposed use not being considered `light manufacturing.' Plaintiffs argue that such denial of the WRPOD Special Permit for an accessory use was for reasons not stated in the Bylaw and thus legally untenable. Defendants argue that the WRPOD Decision was justified for a reason not stated in the WRPOD Decision, that is, because an accessory use related to a prohibited principal use is not allowed by the Bylaw. Section 3.2.2 provides "[i]n districts other than RA and RB....[a]ny use not allowed in the district as a principal use is also prohibited as an accessory use." Such denial, they contend, on these grounds would be permitted even if the tank complied with all the technical requirements in the Bylaw. In Prudential, 23 Mass. App. Ct. at 280, the Board expressly denied a special permit for an accessory use because the principal use was prohibited. Section 3.2.2 of the Bylaw defines an accessory use as "customarily incidental to the main and principal building or use of the land." It further states "any use not allowed in the district as a principal use is also prohibited as an accessory use." Since Plaintiffs have applied for a special permit for a fuel storage tank which will be used to operate the asphalt plant, it follows that this storage tank qualifies as an accessory use because it relates directly to the intended principal use of Locus. For these reasons, it appears that Defendants are correct that an accessory use must be tied to an allowed primary use of Locus. Such primary use, however, is yet to be determined, as discussed, supra, and as a result this court cannot rule on the validity of the WRPOD Special Permit. [Note 21] This matter shall be remanded to the Planning Board, as discussed, infra.

MCP Special Permit.

The final issue is whether the Planning Board properly required Plaintiffs to obtain a MCP Special Permit. Section 10.2 of the Bylaw defines a MCP as:

Any industrial or commercial use which has one or more of the following characteristics:

(a) 15,000 square feet or more of gross floor area in any building or combination of buildings;

(b) More than 100 required parking spaces;

(c) Generation of more than 250 vehicle trips per day, as determined by the ITE's Trip Generation Manual;

(d) The use is allowed in the district in which it will be located. [Note 22] [Note 23]

Plaintiffs argue that section 10.2(d) of the Bylaw violates the uniformity provision of G. L. c. 40A, § 4, as illustrated in SCIT v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984), because it requires any as of right use in the IA zone to obtain a special permit. Plaintiffs also argue that the application of this provision to the Project would constitute disparate treatment. [Note 24]

It appears that Plaintiffs are correct that section 10.2(d) of the Bylaw provision is in violation of SCIT. In that case, the Appeals Court determined that a zoning bylaw that required all new uses, including those considered as of right, to obtain a special permit was in violation of G. L. c. 40A. Similarly, since section 10.2(d) of the Bylaw requires an applicant to obtain a special permit even if the use is allowed as of right in that district, this provision is in violation of G. L. c. 40A, § 4. Any of the four requirements listed in section 10.2(d) of the Bylaw triggers the MCP Special Permit classification. The statute would read more accurately if it defined a MCP as an as of right use which exceeded one of the three numerical limitations to qualify as a MCP since, in effect, the Bylaw provision requires any as of right use to obtain a special permit without any regard to any other criteria. Based on the foregoing, I find that G. L. c. 40A, § 4, invalidates section 10.2 of the Bylaw pertaining to the MCP Special Permit, and therefore it is not necessary to determine the merits of the MCP Special Permit. [Note 25]

As a result of the foregoing, I ALLOW IN PART and DENY IN PART Plaintiffs' Partial Motion for Summary Judgment. The parties shall attend a status conference on Thursday, September 1, at 11:00 AM to determine how this case shall proceed. This court shall retain jurisdiction over this matter. Judgment shall enter upon final resolution of all issues in this case.

Alexander H. Sands, III

Justice