Plaintiffs Jeanne H. Davis individually and as administratrix of the Estate of Kathleen E. Williams (“Davis”) and Janice G. Williams (“Williams”) (together, “Plaintiffs”) filed their Verified Complaint on July 18, 2008, (1) appealing, pursuant to the provisions of G. L. c. 40A, § 17, Defendant Town of Dudley Planning Board’s (the “Planning Board”) approval of an application for Major Site Plan Review (the “Site Plan Approval”) for a parking lot (the “Project”) filed by Defendant Nichols College (“Nichols”) pertaining to property located on a portion of Lot B, Healy Road in Dudley, Massachusetts (“Locus”) [Note 1], (2) alleging nuisance and trespass by drainage water onto Plaintiff Property, as hereinafter defined, [Note 2] and (3) alleging trespass and encroachment upon a parcel of land which Plaintiffs allege they own (the Disputed Parcel, as hereinafter defined). [Note 3] The Planning Board filed its Answer on August 12, 2008. A case management conference was held on October 22, 2008. Nichols filed its Answer on July 24, 2009. A pre-trial conference was held on April 7, 2010. A site view and the first day of trial at the Worcester District Court were held on September 13, 2010. The second and third days of trial were held at the Land Court in Boston on September 14 and 15, 2010. Post-trial briefs were filed on December 17, 2010, at which time the matter was taken under advisement.

Testimony was given by Plaintiffs’ witnesses Jeanne H. Davis (Plaintiff), Gillian Davies (soil scientist), Frank DeFalco (“DeFalco”) (civil engineer), and Janice G. Williams (Plaintiff), and by Nichols’ witnesses Robert LaVigne (“LaVigne”) (Nichols’ Associate Vice President of Building and Grounds), Allen Paige (land surveyor), and William Hannigan (“Hannigan”) (civil engineer). Twenty-seven exhibits were submitted into evidence, some in multiple counterparts.

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

1. By deed dated August 27, 1935, and recorded with the Worcester County Registry of Deeds (the “Registry”) in Book 2651, Page 272, Mary B. Goodell conveyed to the Town of Dudley (the “Town”) a parcel of land on Dudley Hill. A portion of this conveyance (the “Disputed Parcel”) is shown as owned by the Town on “Plan of Land in Dudley, Massachusetts The Inhabitants of the Town of Dudley” dated June 12, 2009, and prepared by BC Engineering & Survey, Inc. (the “June 2009 Plan”). The Disputed Parcel contains 8,399.2 square feet.

2. Nichols owns several parcels of land on which the college is located, with buildings, on Center Road in Dudley. The land at issue in this case (Locus) is a portion of Parking Lot B (which is a portion of Parcel 88 as shown on Dudley Assessors Map 227). Parcel 88 was purchased by Nichols by deed dated April 10, 1942, and recorded with the Registry at Book 2850, Page 363. [Note 4] Parcel 88 contains 7.78 acres.

3. Elliott A. Williams and Kathleen E. Williams (“Kathleen”) purchased four tracts of land in Dudley (two on Healy Road, one on Dresser Hill Road, and one on Oxford Road) by deed dated June 19, 1958, and recorded with the Registry at Book 3949, Page 303 (the “1958 Deed”). [Note 5] [Note 6] One of these tracts included Parcels 85, 86 and 87 as shown on Dudley Assessors Map 227 (“Plaintiff Property”). These three parcels are located on the northerly side of Healy Road. Williams now resides at 83 Healy Road (Parcel 87 on Assessors Map 227), which Kathleen deeded to Williams by deed dated March 3, 1997, and recorded with the Registry at Book 18648, Page 210. Kathleen died on February 2, 1998 and Davis was appointed Administratrix of her Estate (the “Estate”) (Worcester County Probate Court Docket No. 98PRO971AD1). Davis resides at 79 Healy Road (Parcel 86 on Assessors Map 227), which she inherited from the Estate. Parcel 85 is jointly owned by Plaintiffs and their sister, Gail Williams, who is not a party to this case. [Note 7] Parcel 85 directly abuts Parcel 88. Parcel 87 abuts an abutting property and is within 300 feet of Parcel 88. Parcel 86 does not abut Parcel 88 or any property abutting Parcel 88.

4. By Commonwealth of Massachusetts Agricultural Preservation Restriction dated November 22, 1996 (the “APR”), and recorded with the Registry at Book 18629, Page 48, Kathleen submitted certain property to agricultural restrictions, including the loss of development rights. The APR was executed by Kathleen, the Department of Food and Agriculture of the Commonwealth of Massachusetts, and the Town. Exhibit A of the APR describes the land controlled by the APR and includes a parcel that contains three of the four tracts described in the 1958 Deed; Exhibit A exempts Parcel 86 and Parcel 87 from the APR. [Note 8] Plaintiffs allege that they own the Disputed Parcel.

5. By application (the “Application”) dated May 2, 2008, Nichols filed for Site Plan Approval for Locus pursuant to the Zoning Bylaws of the Town of Dudley, Massachusetts (“the Bylaw”) with the Planning Board. [Note 9] The Application provided for the expansion of Parking Lot B on Parcel 88 to add eighty-four new parking spaces (the Project). [Note 10] The Application included plans (pages 1-12) titled “Nichols College Parking Facility Expansion” dated April 10, 2008 (pages 1-7, 12), May 1, 2008 (page 11), and May 9, 2008 (pages 8-10), and prepared by BC Engineering & Survey, Inc (the “Site Plans”). The Application also included a Drainage Analysis for Parking Expansion dated May 9, 2008, and prepared by Hannigan Engineering, Inc. (the “Drainage Analysis”). [Note 11] [Note 12]

6. The Planning Board hired Graves Engineering, Inc. (“Graves”) for peer review of the Site Plans, and provided them with the Site Plans on May 12, 2008. By letter dated June 4, 2008, Graves provided comments for the Site Plans. The Site Plans were revised pursuant to the comments from Graves (the “Revised Site Plans”), and such revisions were dated June 5, 2008, provided to Graves on June 10, 2008, and filed with the Planning Board on June 13, 2008. A revised Drainage Analysis for Parking Expansion, dated June 5, 2008 (“Drainage Analysis 2”), was also prepared by Hannigan Engineering, Inc., and provided to Graves on June 10, 2008. A second letter from Graves dated June 25, 2008, addressed the Revised Site Plans and Drainage Analysis 2. [Note 13]

7. Pursuant to Hannigan’s credible expert testimony, during a ten-year storm event under current conditions, storm water would drain away from Locus toward Plaintiff Property at a rate of 2.24 cubic feet per second. After the Project is completed as designed and approved, storm water would drain away from Locus toward Plaintiff Property at a rate of 1.52 cubic feet per second. As a result, the Project would result in a decrease in the rate at which storm water drains from Locus toward Plaintiff Property. [Note 14]

8. As designed and approved, the Revised Site Plans include a detention basin, the top of which is at an elevation of 602 feet. The detention basin has a spillway at an elevation of 601 feet. In a one-hundred-year storm, the water would reach a maximum elevation of 600.73 feet.

9. As designed and approved, the Revised Site Plans indicate an average light intensity of 0.84 foot candles at Locus, with a minimum of 0.2 foot candles and a maximum of 1.8 foot candles. [Note 15] The Revised Site Plans indicate a light intensity of zero foot candles at the property line between Locus and Parcel 85, the only parcel of Plaintiff Property that abuts Locus.

10. The Planning Board opened its public hearing on the Revised Site Plans on June 25, 2008. On the same day the Planning Board closed the public hearing and voted 4-0 to approve the Revised Site Plans. A decision of the Planning Board dated June 30, 2008, was filed with the Dudley Town Clerk Office on the same date.

11. By letter dated January 14, 2010, DeFalco Engineering Services (“DeFalco Engineering”) prepared a report for Plaintiffs relative to the Revised Site Plans. By letter dated August 13, 2010, DeFalco Engineering prepared a second report relative to the Revised Site Plans.

12. A further Revised Drainage Analysis (“Drainage Analysis 3”) dated August 26, 2010, was prepared by Hannigan Engineering, Inc. [Note 16]

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There are two issues in the case at bar. Plaintiffs allege that they own the Disputed Parcel and that Nichols has trespassed on the Disputed Parcel by installing an 8" sewer main across the Disputed Parcel. Plaintiffs also allege that the Site Plan Approval was arbitrary, capricious and unreasonable. Nichols alleges that the Town owns the Disputed Parcel and that Plaintiffs have no interest in such parcel. Nichols also alleges that the Site Plan Approval was not arbitrary, capricious or unreasonable. I shall examine each of these issues in turn.

The Disputed Parcel.

The trial record contains the 1935 deed of the Disputed Parcel to the Town. The trial record does not contain any deed of the Disputed Parcel from the Town to anyone else. The June 2009 Plan shows the Disputed Parcel as owned by the Town. In addition, Allen Paige, Nichols’ land surveyor, testified at trial that he had determined “[t]hrough the deeds of record” that the Disputed Parcel is owned by the Town. [Note 17] Plaintiffs argue that the APR and the January 2009 Plan confuse the issue, because the January 2009 Plan shows the Disputed Parcel as owned by Plaintiffs and the APR prohibits Plaintiffs from developing any land under that agreement. [Note 18] The APR was executed ten years before the January 2009 Plan. Furthermore, Exhibit A to the APR does not list the Disputed Parcel as one of the covered parcels. With respect to Kathleen’s title, Exhibit A to the APR references only the 1958 Deed, which could not have included any rights in the Disputed Parcel, because the Disputed Parcel had already been conveyed to the Town in 1935. Moreover, the June 2009 Plan, prepared five months after the January 2009 Plan, shows the Disputed Parcel as owned by the Town. As a result of the foregoing, I find that the Disputed Parcel is owned by the Town and is not a part of the APR. Consequently, Plaintiffs cannot bring a trespass action against Nichols on a parcel of land which they do not own.

Site Plan Approval.

Plaintiffs bring this appeal pursuant to G. L. c. 40A, § 17, which provides that “[a]ny person aggrieved by a decision of . . . any special permit granting authority . . . may appeal to the land court department.” Plaintiffs allege that the Revised Site Plans violate provisions of the Bylaw related to surface water drainage and lighting, thereby making the Site Plan Approval arbitrary, capricious, and unreasonable. [Note 19] Nichols contends that the Revised Site Plans comply with the Bylaw and were properly approved by the Planning Board.

A. Drainage.

Site Plan Review is governed by ¶ 5.04 of the Bylaw. With regard to drainage, ¶ 5.04.05 Site Plan Design Standards states: All site plan review applicants shall adhere to the following general principles when designing a site plan for land within the Town of Dudley . . .

D. Surface water Drainage: Special attention shall be given to proper site surface drainage so that removal of surface waters will not adversely affect neighboring properties of the public storm drainage system . . . All surface water drained from roofs, streets, parking lots and other site features shall be disposed of in a safe and efficient manner, which shall not create problems of water runoff or erosion on the site in question, or on other sites.

Insofar as possible, natural drainage courses, swales properly stabilized with plant material or paving when necessary, and drainage impounding areas, shall be utilized to dispose of water on the site through natural percolation, to a degree equivalent to that prior to development. Also, appropriate control measures shall be employed which include maximum slope requirements, and slope stabilization measures including seeding of exposed areas to replace vegetative cover . . .

M. Stormwater Management (Grading and Drainage): All site plan applicants must submit drainage calculations to show compliance with DEP . . .Stormwater Guidelines. [Note 20]

In addition, ¶ 5.04.06 of the Bylaw provides that

In reviewing a site plan application, the Planning Board shall take the following into consideration: . . .

F. Safe and adequate storm drainage consistent with building and surface coverage, grades, slopes, soils and water table which shall result in zero increase in the rate of runoff from the site, as measured by the two (2) year (twenty-four (24) hour) and ten (10) year (twenty-four (24) hour) Storm Event Standards; and there will be no negative impacts to downstream property-owners in a one hundred (100) year (twenty-four (24) hour) storm event.

G. Prevention of soil erosion during and after construction; provisions for an increase in the volume of runoff of surface water from the site and the protection of adjacent areas against detrimental or offensive uses on the site by the provision of adequate buffers against light, sight, sound, dust and vibrations.

H. Open space provisions and landscaping, including the maximum retention of on-site natural features.

Plaintiffs argue, and the site view and photographs submitted into evidence confirm, that portions of Plaintiff Property, which are downgrade from Locus, are cut by defined drainage paths and erosion and contain trees which have been uprooted by water flow over time. The southerly portion of Lot B on Parcel 88 has been paved as a parking lot for a number of years. The issue in the case at bar is the proposed paving of Locus, the northerly portion of Lot B, and this court has repeatedly pointed out to Plaintiffs that damage to Plaintiff Property as a result of drainage from the portion of Nichols’ property which is currently paved, even if it were caused by Nichols, is not at issue in this case. The only drainage issue in this case is whether proposed drainage from Locus, once the extension of the parking lot is built, is compliant with the Bylaw and DEP regulations. Section 5.04.05(M) of the Bylaw incorporates the DEP Stormwater Guidelines, giving this court jurisdiction over that issue. [Note 21]

Nichols prepared the Drainage Analysis with its Application and filed it with the Planning Board. The Planning Board hired Graves to review the Drainage Analysis, which it did and presented comments. As a result of Graves’ comments, Nichols prepared Drainage Analysis 2. Graves’ final comment letter indicated that every one of its concerns raised in its first letter had been satisfactorily addressed. These two drainage analyses and the comments from Graves were relied on by the Planning Board when it issued the Site Plan Approval.

Plaintiffs argue that the Bylaw has a stricter standard than the DEP regulations and that the Planning Board failed to take this into account. Specifically, DEP regulations provide that “[S]tormwater Management Systems shall be designed so that post-development peak discharge rates do not exceed pre-development peak discharge rates.” 310 CMR 10.05(6)(k)(2). Plaintiffs maintain that this standard differs substantially from the Bylaw requirements in ¶ 5.04.05(D) that drainage “shall not create problems of water run-off” and in ¶ 5.04.06(F) that “there will be no negative impacts to downstream property-owners in a one hundred (100) year (twenty-four (24) hour) storm event.” [Note 22] Plaintiffs assert that Hannigan’s testimony indicated that the Site Plans had to comply with the DEP standard; they further assert that this standard was used by the Town engineer and the Planning Board. Therefore, Plaintiffs argue, the Planning Board either failed to apply the proper standard of review established in the Bylaw or its application was unreasonable, given the potential for harm to Plaintiff Property.

Nichols contends that Drainage Analysis 2, relied on by the Planning Board, satisfies the Bylaw standard of review because it shows that the peak rate of run-off from Locus will not increase after completion of the Project. [Note 23] Drainage Analysis 2 concluded that “the post-development peak rates of runoff have been mitigated in order to assure that no adverse impacts to abutting properties relative to increases in peak rates of runoff will occur due to the proposed development upon the completion of construction.” Drainage Analysis 2 evaluated the design and found this mitigation with respect to two-year, ten-year, twenty-five-year, and one-hundred-year storm events. Drainage Analysis 2 also included Stormwater Management Forms that document compliance with the applicable DEP standards.

At trial, Hannigan, Nichols’ engineer, summarized the findings of Drainage Analysis 2 with respect to a ten-year storm event, stating that under current conditions storm water would drain away from Locus at a rate of 2.24 cubic feet per second, but that after the Project is completed storm water would drain at a rate of 1.52 cubic feet per second. When asked what the impact of that decrease would be on Plaintiff Property, Hannigan stated that it would be “an improvement.” Moreover, Hannigan specifically reaffirmed that there would be “less erosion” than “right now,” regardless of any increase in the volume of run-off.

Nichols also points out that the Planning Board submitted the Drainage Analysis to Graves for review. A letter from Graves dated June 25, 2008 indicated that Graves understood that it had “been requested to review and comment on the Site Plans’ conformance with [the Bylaw] . . . relative to Major Site Plan Review; [DEP] Stormwater Management Policy and standard engineering practice.” The letter further indicated that it was a follow-up to comments from a previous review letter dated June 4, 2008, and that Nichols had satisfactorily addressed all of Graves’ concerns from the first letter. The second letter specifically stated that “[c]ompliance with . . . DEP Stormwater Management Policy is reasonable.”

The Bylaw clearly establishes change in the peak rate of runoff as its standard analysis for storm drainage, stating in ¶ 5.04.06(F) that the Planning Board shall take into consideration “[s]afe and adequate storm drainage . . . which shall result in zero increase in the rate of runoff from the site.” Section 5.04.06(F) also clearly measures increase in the rate of runoff relative to two-year and ten-year storm events. Drainage Analysis 2 indicates that the Revised Site Plans satisfied this standard and the Planning Board was reasonably entitled to rely on it, especially following a thorough peer review.

It is true that the Bylaw may allow the Planning Board more discretion than the DEP regulations where it further requires that “there will be no negative impacts to downstream property-owners in a one hundred (100) year (twenty-four (24) hour) storm event.” However, Drainage Analysis 2 also shows no increase in peak rate of runoff for the 100-year event, but rather a significant post-development decrease. The Planning Board was entitled to rely on the findings of Drainage Analysis 2 relative to a one-hundred-year storm event, especially following a thorough peer review. Moreover, it was reasonable for the Planning Board to find that a significant post-development decrease in the peak rate of runoff would satisfy the Bylaw requirement that “there will be no negative impacts to downstream property-owners.” Although Hannigan did refer to DEP requirements in his testimony, he also opined that the Revised Site Plans were in compliance with the Bylaw. Furthermore, Drainage Analysis 2, prepared by his firm and presented to the Planning Board, stated that it was “prepared in conjunction with the requirements for the Town of Dudley” and that the proposed mitigation would “assure that no adverse impacts to abutting properties . . . will occur.” In light of the Bylaw’s overall reliance on a peak-rate analysis, the prevalence of a peak-rate standard in the engineering field, the Bylaw’s direct reference to the DEP Guidelines, and Graves’ thorough peer review, I find that the Planning Board applied the proper standard of review relative to drainage.

In addition to challenging the Site Plan Approval on the basis of the Planning Board’s standard of review, Plaintiffs also challenge the storm event standards applied by the Planning Board. They presented into evidence two letters from their civil engineer, DeFalco. These letters are dated January 14, 2010 and August 13, 2010, one and one-half and two years after the Site Plan Approval. [Note 24] In his first letter, DeFalco commented on Drainage Analysis 2, noting that the documents detailed a detention basin designed for a 100-year statistical storm event. The letter opined that Nichols should have instead used “back to back 100-year storms” as its criteria. At trial, DeFalco testified that back-to-back 100-year storms is a generally accepted engineering standard, but not required by DEP Stormwater Guidelines. [Note 25] DeFalco’s second letter concentrated on existing damage rather than analyzing drainage attributable to the Project; it briefly speculated that additional volumes of storm water would increase erosion. [Note 26]

DeFalco’s testimony is questionable. At trial, DeFalco was asked whether he had reviewed the Bylaw, the Revised Site Plans, or Drainage Analysis 2, and he represented that he had not done so. [Note 27] The Site Plan Approval is the crux of this appeal. Moreover, the DeFalco letters are replete with speculative opinions using such words as “hypothesis”, “suggests”, “potential”, and “implication”. Regardless of DeFalco’s testimony, the Bylaw in no way contemplates back-to-back 100-year storms and the Planning Board therefore cannot reasonably be expected to deny approval on that basis. Therefore, I find that the Site Plan Approval was not made arbitrary, capricious, or unreasonable by the storm event standards applied in Drainage Analysis 2.

Plaintiffs also dispute the methods used in Drainage Analysis 2. DeFalco’s first letter argued that Drainage Analysis 2 was based on a sub-watershed that wrongly ignored drainage from a developed area in a parking lot above Locus, although DeFalco acknowledged at trial that this area does not drain through Locus before entering Plaintiff Property.

Nichols prepared Drainage Analysis 3 solely to address Plaintiffs’ concerns about the size of the sub-watershed. Drainage Analysis 3 expanded the sub-watershed considerably, incorporating the developed area above Locus. [Note 28] Even though most of the expanded area was impervious, Drainage Analysis 3 indicated that the Project’s proposed detention basin would cause a decrease in peak-rate of run-off for the same four storm events analyzed in Drainage Analysis 2. Drainage Analysis 3 also included calculations for back-to-back one-hundred-year storms that also indicated a decrease in peak-rate, even though Hannigan testified that such an analysis was not required by the DEP regulations or the Bylaw and that he had never done a back-to-back one-hundred-year storm analysis in the more than four hundred drainage analyses of his career.

Drainage Analysis 3 establishes that the conclusions of Drainage Analysis 2 hold true even when the sub-watershed is expanded to the extent Plaintiffs argue is appropriate; because of the detention basin, the peak-rate of runoff onto Plaintiff Property would decrease after completion of the Project, even if the drainage system were draining a larger area. Moreover, Drainage Analysis 3 indicates that the detention basin would have this mitigating effect even in back-to-back one-hundred-year storms. In other words, the mitigation plan arguably puts Plaintiffs in a better position than the status quo, even applying the questionable engineering standards and methods that Plaintiffs themselves propose. Therefore, I find that the size of the sub-watershed considered in Drainage Analysis 2 did not make the Site Plan Approval arbitrary, capricious, or unreasonable.

Plaintiffs also challenged the effectiveness of the proposed detention basin’s spillway. Since the spillway is located below the top of the detention basin, DeFalco opined that the detention basin would overflow through the spillway in a severe storm even before the water level reached the top of the basin.

Nichols argues that concerns about the detention basin’s performance are unfounded. Drainage Analysis 2 located the top of the detention basin at 602 feet, with the spillway at 601 feet. Drainage Analysis 2 also indicated that water would reach a maximum height of 600.73 feet in a one-hundred-year storm. Although DeFalco opined that an extreme storm would nevertheless cause overflow and that the spillway’s designed location intentionally anticipated overflow, the reviewed calculations show that such a storm would exceed a one-hundred-year event. Hannigan testified that the design included a spillway as a matter of good engineering practice, in case the design basin’s outlet became blocked, which he characterized at trial as a “one in a million chance.” Nichols adds that the Revised Site Plans called for mitigating measures beyond the detention basin and that not all of Locus would become impervious. As required by ¶ 5.04.05(H), the Revised Site Plans included ten shade trees and landscape beds with an area of 1,440 square feet, exceeding the 1,358 square feet of beds that the Bylaw would require in connection with the Project.

The detention basin was designed with a spillway that would serve as an alternative storm water outlet under extreme circumstances. In order even to reach the spillway, the water would have to rise 0.27 feet above the level expected in a one-hundred-year storm, because of either an extremely severe storm [Note 29] or a highly unlikely blockage in the detention basin’s usual outlet. The Bylaw does not require the Planning Board to review the Revised Site Plans relative to every imaginable circumstance or to speculate about catastrophic weather conditions. Inasmuch as the Revised Site Plans included a detention basin credibly designed to function in spite of extreme and highly unlikely circumstances, I find that the Site Plan Approval was not arbitrary, capricious, or unreasonable on the basis of the detention basin design.

Based on the foregoing, I find that it was not arbitrary, capricious, or unreasonable for the Planning Board to find that the Bylaw was satisfied by the Revised Site Plans and Drainage Analysis 2.

B. Lighting.

Issues were also raised by Plaintiffs at trial as to lighting used in the Project. [Note 30] With regard to lighting, the Bylaw states in ¶ 5.04.05 Site Plan Design Standards:

N. Outdoor Lighting: All exterior lights shall be designed and installed in such a manner as to prevent objectionable light at (and glare across) the property lines. Externally lit signs, display, building and aesthetic lighting must be lit from the top and shine downward . . . Developments shall eliminate glare onto adjacent properties through the use of lighting shields, earthen berms, or retention of existing natural vegetation. All outdoor lighting fixtures, including display lighting, shall be turned off within one hour after close-of-business, unless needed for safety or security, in which case the lighting shall be reduced to the minimum level necessary.

In addition, ¶ 5.04.06 of the Bylaw provides that

In reviewing a site plan application, the Planning Board shall take the following into consideration: . . .

G. . . . the protection of adjacent areas against detrimental or offensive uses on the site by the provision of adequate buffers against light, sight, sound, dust and vibrations.

H. Open space provisions and landscaping, including the maximum retention of on-site natural features.

Davis testified that, because of the existing lighting, “once the leaves are gone, it’s never totally dark.” DeFalco testified that he had not seen the lighting plan submitted to the Planning Board, although he had seen “a diagram showing where lighting might be.” Noting that lighting on Locus would be above Plaintiff Property, DeFalco stated that his company would “certainly redesign and consider a different type of lighting which would reflect uphill instead of downhill.”

Testimony from LaVigne indicated that Nichols has taken steps to control light pollution. LaVigne testified that the lighting proposed for the Project is currently used in parking lots F and N. He testified that Nichols has ordered the fixtures with top shields to control uplight and house shields to control backlight. He testified that Nichols had received one complaint from an abutter about light from lot N. [Note 31] In response, Nichols had modified the fixture with reflectors. LaVigne further testified that the lights remain on from sundown to sunup for safety and security.

In addition, Hannigan explained that the lighting plan submitted to the Planning Board showed that “on the [proposed] parking lot . . . the average number of foot candles is 0.84 foot candles of light with the maximum being . . . 1.8 and then a minimum being 0.2.” Hannigan further explained that at the property line between Parcel 88 and Parcel 85 the number of foot candles is zero. “Essentially [the lighting] would not reach the property line.” At trial, Hannigan measured the January 2009 Plan to determine that Plaintiffs’ dwellings are located approximately 360 feet and 500 feet beyond Locus.

The Revised Site Plans reviewed by the Planning Board provided for buffers against light, including shields installed by Nichols and existing trees that would not be removed from Locus. In fact, the Revised Site Plans showed no additional light crossing into Plaintiff Property as designed, much less reaching their dwellings; the Project would not be expected to affect lighting conditions on Plaintiff Property. [Note 32] On the basis of the foregoing, I find that the lighting proposed in the Revised Site Plans did not make the Site Plan Approval arbitrary, capricious, or unreasonable.

As a result of the foregoing, I find that the Site Plan Approval is not arbitrary, capricious or unreasonable.

Judgment to enter accordingly.


FOOTNOTES

[Note 1] Locus is defined in the Drainage Analysis, as hereinafter defined, as “a mature wooded lot adjacent to an existing parking area. The sub-watershed analyzed is approximately 1.5 acres. The parcel slopes from east to west at a 12% slope.”

[Note 2] Plaintiffs filed a Dismissal of Count II (alleging nuisance and trespass on their properties) on August 3, 2010.

[Note 3] Peter T. Clark, Esq. filed a Motion to Withdraw as attorney for Plaintiffs on July 28, 2009, which was allowed on July 31, 2009. E. John Anastasi, Esq. and Michael P. Patnaude, Esq. filed a Motion to Withdraw as attorneys for Plaintiffs on March 29, 2010, which was allowed on April 7, 2010.

[Note 4] This deed is not in evidence but is referred to in the Application (as hereinafter defined) and is not contested.

[Note 5] Elliott A. Williams and Kathleen owned the following parcels of land located in Dudley: a) a parcel located on Healy Road by deed dated August 3, 1948, and recorded with the Registry at Book 3138, Page 346, b) a parcel by deed dated January 13, 1958, and recorded with the Registry at Book 3918, Page 554, and c) the above-referenced four tracts of land. Kathleen survived Elliott A. Williams and died in 1998.

[Note 6] The Williams family had purchased this property earlier, as the grantor of the above referenced deeds was Eva M. Williams.

[Note 7] The record indicates that Gail Williams may have an ownership interest in Parcel 85, although the nature and extent of that interest are not clear. Therefore, since Gail Williams was not a party to this case, it raises the question whether the benefit of this action should apply to Parcel 85, an issue which the parties have not addressed. However, the findings in this case make that issue moot.

[Note 8] A plan titled “Existing Condition Plan 79 and 83 Healy Road” dated January 15, 2009 (the “January 2009 Plan”), and prepared by BC Engineering & Survey, Inc., shows the Disputed Parcel as owned by the Estate. Testimony at trial indicated the January 2009 Plan erroneously referenced the Disputed Parcel as owned by the Estate. At any rate, the January 2009 Plan is dated thirteen years after the APR, and the Disputed Parcel is not described in Exhibit A of the APR.

[Note 9] Nichols submitted a Request for Determination of Applicability dated April 2008 to the Dudley Conservation Commission (the “Conservation Commission”) in connection with the Project, and received a Negative Determination of Applicability. This decision of the Conservation Commission was not appealed. At trial, Plaintiffs presented a wetlands specialist to testify as to wetlands issues. This court advised that wetlands issues had already been addressed by the Conservation Commission, and such issues had not been appealed. Moreover, the Land Court does not have jurisdiction over wetlands issues.

[Note 10] The existing parking lot contains seventy-seven parking spaces. The Project requires that eight of these spaces be removed. The plans as approved showed ninety-two new parking spaces, making for an increase of eighty-four parking spaces and a total of one hundred sixty-one parking spaces. The date the existing parking lot was added is not in the record.

[Note 11] The Drainage Analysis states, “The purpose of this report is to compare pre-development to post-development conditions relative to increases in peak rates of runoff generally associated with increases in impervious surfaces and alterations of land use which may effect potential runoff.”

[Note 12] The Conclusion section of the Drainage Analysis states:

As outlined above, the post-development peak rates of runoff have been mitigated in order to assure that no adverse impacts to abutting properties relative to increases in peak rates of runoff will occur due to the proposed development upon the completion of construction. The storm water management as outlined herein and as shown on the accompanying plans has the following positive values relative to storm water management:

A) The stormwater management facility will detain all design storms, allowing for accumulating pollutants to settle and filter prior to release.

B) Attenuation of the 2, 10, 25, and 100-year storm events has mitigated increases in peak rates of runoff.

C) On-site roadway and pavement areas are directed to traditional catch basins with deep sumps for collection of debris and sediments prior to discharge.

[Note 13] This letter stated that “[Graves] has been requested to review and comment on the plans’ conformance with [the Bylaw] relative to Major Site Plan review; Massachusetts Department of Environmental Protection (MADEP) Stormwater Management Policy and standard engineering practice.” The letter indicated that every comment made by Graves in the first review letter had been satisfactorily addressed.

[Note 14] Plaintiffs do not dispute that the peak rate of discharge will be reduced, and explicitly agree with that finding of the Revised Drainage Analysis in their post-trial brief.

[Note 15] A “foot candle” is a measurement approximately equal to the amount of light emitted from a candle at a distance of one foot.

[Note 16] The Conclusions Section of Drainage Analysis 3 States:

As outlined above, the post-development peak rates of runoff have been mitigated in order to assure that no adverse impacts to abutting properties relative to increases in peak rates of runoff will occur due to the proposed development upon the completion of construction. As stated above, an additional request made by the plaintiff’s experts was to run back to back 100 year storm events. Although there is no basis for performing this analysis as a ‘standard’ from a regulatory requirment [sic], we have performed this exercise to address this issue. This has also been modeled in the pre- and post-development conditions for comparison purposes. As depicted above, a decrease in peak rates of runoff are experineced [sic] in all modeled storm events at the design point.

The storm water management as outlined herein and as shown on the accompanying plans has the following positive values relative to storm water management:

A) The storm water management facility will detain all design storms, allowing for accumulating pollutants to settle and filter prior to release.

B) Attenuation of the 2, 10, 25, and 100-year storm events has mitigated increases in peak rates of runoff.

C) On-site roadway and pavement areas are directed to traditional catch basins with deep sumps for collection of debris and sediments prior to discharge.

This report is provided for purposes of . . . litigation only and does not invalidate the original drainage analysis.

[Note 17] At trial, Davis acknowledged both that Nichols had performed a title search showing that the Disputed Parcel is owned by the Town and that Plaintiffs’ own surveyor had agreed with that title search.

[Note 18] The record does not show that there is any intention to develop the Disputed Parcel.

[Note 19] At trial, Plaintiffs also expressed safety concerns related to the Project, apparently because they anticipated that it would result in increased traffic on Healy Road, which they assert is steep and icy in winter. In particular, Plaintiffs drew attention to ¶ 5.04.04(A)(12) of the Bylaw, which requires that “[a]ll submitted site plans shall depict . . . [l]ocation, flow and timing patterns of existing and proposed traffic.” These generalized concerns, however, were not developed into an argument that the Planning Board’s review was inadequate; nor were such concerns addressed in Plaintiffs’ complaint or post-trial brief. The record includes an Official Receipt by Dudley Planning Board of Accurate Submission of Site Plan, which indicates on its Submission Checklist that the Site Plans show “Location, flow and timing patterns of existing and proposed traffic”, as required by ¶ 5.04.04(A)(12), as well as “Location, width, curbing and paving of all existing and proposed streets, rights-of-way, easements, alleys, driveways, sidewalks, and other public ways”, as required by ¶ 5.04.04(A)(13).

Nichols argues in its post-trial brief that the Project complies with the Bylaw’s standards regarding circulation in ¶ 5.04.05(I), which requires that “special attention shall be given to . . . arrangement of parking areas that are safe and convenient and, insofar as practicable, do not detract from the use and enjoyment of . . . neighboring properties.” Nichols points out that the layout proposed in the Site Plans is similar to the layout used in the existing parking lot, asserting that it is safe, convenient, and designed to minimize turning movements onto adjacent public ways. Plaintiffs do not cite the extensive requirements of ¶ 5.04.05(I), which pertain to circulation.

[Note 20] Nichols also cites the landscaping standards of ¶ 5.04.05(K), which provides that:

Site plans involving more than thirty (30) parking spaces shall provide interior landscaping covering not less than five percent (5%) of the total area of the parking area. In total, there shall be provided one (1) shade tree placed within the parking lot for every ten (10) spaces and complemented by shrubs and other planting material. Such trees shall be at least two (2) inches in trunk diameter at the time of planting, and shall be located in planting beds at least six feet (6') in width or diameter. . . . In case it can be shown to the Planning Board that the planting of trees is impractical, the Planning Board may authorize plantings and shrubbery instead of trees.

Nichols points out that compliance with the Bylaw therefore requires that not all of Locus be impervious, thus reducing runoff. However, that provision has limited relevance, because this case concerns the reasonableness of the Site Plan Approval, not the reasonableness of the Bylaw on which it was based.

[Note 21] The record does not contain any document titled “DEP Stormwater Guidelines”. The Planning Board requested that Graves review the Site Plans relative to Massachusetts DEP “Stormwater Management Policy.” Central to the DEP Stormwater Management Policy are the Stormwater Management Standards, which have been incorporated into DEP regulations. See 310 CMR 10.05(6)(k). At trial, Hannigan testified that “[w]ithin the zoning bylaw, section 5.04, . . . the regulations specifically require . . . compliance with the stormwater management policy.” Hannigan went on to refer immediately to the Stormwater Management Standards. Plaintiffs’ post-trial brief clearly accepts this reading of ¶ 5.04 and argues on the basis of it. Drainage Analysis 2 includes Section 3.0 Stormwater Management Forms, which documents compliance with the Stormwater Management Standards. Neither party argues that the Stormwater Management Standards and associated regulations are not the relevant guidelines from the DEP or that in ¶ 5.04.05(M) the Bylaw requires something other than compliance with them.

[Note 22] Plaintiffs also cite ¶ 5.04.01 of the Bylaw, which states that the “purpose of the Site Plan Review Bylaw is to protect the safety, public health, convenience and general welfare of the inhabitants of the town by ensuring that the design and layout of certain developments permitted by right or by special permit will constitute suitable developments and will not be a detriment to the neighborhood or the environment.”

[Note 23] Hannigan testified at trial that peak rate is “a federal standard essentially that all engineers and even boards and review agents use for design of drainage and review of drainage so that everyone’s working with the same programs.”

[Note 24] DeFalco’s letter of January 14, 2010 is addressed to Attorneys Anastasi and Patnaude and indicates that their office requested his assistance in responding to an interrogatory. See n.2, supra. DeFalco’s letter of August 13, 2010 is addressed to Plaintiffs.

[Note 25] On cross-examination, DeFalco initially agreed that the Bylaw also “certainly” does not use back-to-back 100-year storms as its standard. He subsequently testified that he was “not familiar with the [Bylaw].”

[Note 26] It is uncontested that the Project will increase the volume of water running downhill from Locus. The mitigation plan relies on maintaining the peak rate at which the water flows, by dissipating the additional volume over time through a detention basin. At trial, Hannigan described this strategy as follows: “[Y]ou take the fire hose, you put it in the bathtub and you have a garden hose coming out of it. And so the storm flow is from the fire hose, and that builds up in the bathtub, but it only lets out a garden hose worth of flow, and when the storm is over, . . . the fire hose shuts off and the water slowly releases . . . through the garden hose . . .” The detention basin is analogous to the bathtub in this description.

[Note 27] DeFalco testified that he had seen two of the twelve pages of the Site Plan and the Drainage Analysis, but none of the revised documents on which the Planning Board voted.

[Note 28] As Hannigan described it at trial, the expanded sub-watershed included “essentially the entire campus area from Center Street north to the Congregational Church, south to Healy Road, all the way west to the [Plaintiffs’] property line.”

[Note 29] How severe is not in the record.

[Note 30] Plaintiffs did not make any arguments related to lighting in their post-trial brief.

[Note 31] The abutter is a relative of Plaintiffs.

[Note 32] Even if there were reason to doubt the Revised Site Plans, the proposed lighting is already in use and there are known means by which any future light pollution can be mitigated.