CHARLES BROOKS, and GUY FARETRA and CRAIG D. FARETRA, as TRUSTEES OF C&G REALTY TRUST vs. BOARD OF APPEALS OF THE TOWN OF CHELMSFORD, JOHN BLAKE, JR., EILEEN DUFFY, JOHN COPPINGER, LEONARD RICHARDS, JR., WILLIAM J. GILET, SR., and JOEL LUNA, in their capacity as members of THE CHELMSFORD BOARD OF APPEALS, and CHELMSFORD HILLSIDE GARDENS, LLC

Plaintiffs Charles Brooks (“Brooks”) and Guy Faretra and Craig D. Faretra, as Trustees of C&G Realty Trust (the “Trust”) (together, “Plaintiffs”) filed their unverified Complaint on October 20, 2008, appealing pursuant to G. L. c. 40B, § 21, a decision of Defendant Board of Appeals of the Town of Chelmsford (the “ZBA”) approving a comprehensive permit (the “Comprehensive Permit”) issued to Defendant Chelmsford Hillside Gardens, LLC (“Hillside Gardens”). Hillside Gardens filed its Answer on November 7, 2008. A case management conference was held on December 15, 2008. [Note 1] Hillside Gardens filed a Motion to Dismiss Plaintiffs’ Claims pursuant to Mass. R. Civ. P. 12(b)(1) on April 15, 2009, together with supporting memorandum and Affidavit of Charles Emanouil. On April 21, 2009, Plaintiffs filed their Opposition. A status conference was held on April 24, 2009, at which this matter was scheduled for trial. A pre-trial conference was held on July 29, 2009. A site view and the first day of trial at the Radisson Hotel in Chelmsford, Massachusetts were held on October 26, 2009. At the completion of Hillside Gardens’ case, Plaintiffs filed a Motion for a Directed Finding, which this court denied. Hillside Gardens filed Proposed Findings of Fact on the same day. The second day of trial was held at the Land Court in Boston on October 27, 2009. Plaintiffs filed their Post Trial Brief on January 25, 2010, and Hillside Gardens filed its Post Trial Memoranda on February 4, 2010, at which time the matter was taken under advisement.

Testimony for Hillside Gardens was given by Peter Charles Emanouil (“Emanouil”) (principal of Hillside Gardens) and Joseph Peznola (“Peznola”) (civil engineer). Testimony for Plaintiffs was given by Charles Brooks (Plaintiff), Craig Faretra (Plaintiff), Guy Faretra (Plaintiff), and Thomas Houston (“Houston”) (engineer). Forty-eight exhibits were entered into the trial record, some in multiple parts.

On July 7, 2010, this court issued a decision (“Land Court Decision 1”), in which the case was dismissed because I found that Plaintiffs did not have standing to challenge the Comprehensive Permit. Plaintiffs appealed Land Court Decision 1 on July 23, 2010. On September 30, 2010, this court issued an order denying Hillside Gardens’ Motion Requiring Plaintiffs to Post Bond Pending Appeal. On September 15, 2011, the Appeals Court reversed the judgment in Land Court Decision 1, Brooks v. Chelmsford Hillside Gardens, LLC, 10-P-1817 (Sept. 15, 2011) (the “Appeals Court Decision”), finding that Plaintiffs had standing to challenge the Comprehensive Permit, and remanded the case to this court to adjudicate the merits of Plaintiffs’ challenge to the Comprehensive Permit. At a status conference held on September 20, 2011, in a related case Brooks v. Howe, 11 MISC 448508, the parties requested that this court act on the merits of this case based on the facts submitted at trial in October 2009 and on post-trial briefs filed in January and February 2010.

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

1. Hillside Gardens is the proposed buyer of property located at 311 Littleton Road, Chelmsford, Massachusetts (“Locus”) under a purchase and sale agreement (the “Purchase and Sale Agreement”) with Chelmsford 110 Holdings, LLC (“Holdings”) dated September 2007. Locus is a 4.96 acre parcel of land. [Note 2] Holdings obtained title to Locus from RP Chelsmford, LLC by deed dated and recorded on August 22, 2007 with the Middlesex County North District Registry of Deeds. Locus is zoned as Commercial Roadside under the Zoning Bylaws of the Town of Chelmsford (the “Bylaws”).

2. Emanouil is the manager of both Holdings and Hillside Gardens; both entities have principal offices located at 17 Progress Avenue, Chelmsford, Massachusetts. [Note 3]

3. Pursuant to a letter dated February 8, 2008 (the “Project Eligibility Letter”), the Department of Housing and Community Development (“DHCD”) notified Hillside Gardens that its application for designation as a “Local Initiative Program” was approved with respect to a residential project on Locus. The Project Eligibility Letter states:

If the town and developer pursue alternative development plans, DHCD must review the plans and the revised pro forma, prior to a decision by the zoning board of appeals. DHCD must approve any changes to the application it has just reviewed and approved, including but not limited to alterations in proposed sale prices, development team, unit design, or site plan.

4. On March 14, 2008, Hillside Gardens submitted an application to the ZBA for a comprehensive permit for a fifty-nine dwelling unit project on Locus, pursuant to G. L. c. 40B, §§ 20-23. This application was eventually modified to contain forty-four units (the “Project”), as reflected in the First Amended Application dated May 5, 2008. Although the number of affordable units was reduced from fifteen units to eleven units, the percentage of affordable units remained constant. The Project originally included one, two and three-bedroom units at market-rate and one and two-bedroom affordable units; however, the Project now includes neither affordable nor market-rate one-bedroom units but does include three-bedroom affordable units, which has resulted in changes to the unit design plan and pro forma. [Note 4]

5. Brooks is the owner of Brooks Precision Machines and three commercial condominiums, all located at 4 Kidder Road in Chelmsford (the “Brooks Property”). The Brooks Property is a direct abutter to the easterly side of Locus and is located within the Commercial Roadside zoning district under the Bylaws. Brooks Precision Machines manufactures defense and medical supplies inside the buildings on the Brooks Property. Its operations typically begin at 6:00 A.M., but at times it operates twenty-four hours a day.

6. The Trust is the owner of property located at 6 Kidder Road in Chelmsford (the “Trust Property”). The Trust Property is a direct abutter to the easterly side of Locus, and is located within the Commercial Roadside zoning district under the Bylaws. The Trust Property also abuts, and is located directly to the north of, the Brooks Property. On the Trust Property, the Trust operates Chelmsford Crane Service, Inc. (“Chelmsford Crane”), a business providing equipment rental (consisting of mobile truck cranes and trucks) to the construction industry, marine and demolition contractors, and emergency rescue services. Chelmsford Crane typically operates from approximately 4:30 A.M. to between 4:30 P.M. and 7:00 P.M. At times it operates twenty-four hours a day, seven days a week. The Trust owns four cranes (three mechanical and one hydraulic) that are stored on the Trust Property and that are used primarily to load and unload trucks. The cranes extend from thirty-five feet to 250 feet. The cranes are usually stored in an “up” or vertically extended position, 100-150 feet extended, at a sixty to seventy degree angle.

7. The Town of Chelmsford (the “Town”) has identified Locus as part of its housing plan for the construction of affordable residential housing. Low or moderate housing existing in the Town constitutes 6.8 percent of the total housing units reported in the last U.S. Census, placing it below the 10 percent goal by the Commonwealth in G.L. c. 40B, § 20 and 760 C.M.R. 56.03(3).

8. By letter dated March 28, 2008, the Chelmsford Sewer Commission (the “Sewer Commission”) stated that it had “the required capacity to allow Hillside Garden Condominiums access to the public sewer system.”

9. By letter dated May 14, 2008, the Town of Chelmsford Fire Prevention Department (the “Fire Department”) made several requests with respect to the Project relating to fire hydrants, driveway turning radii, sidewalks, and house numbers and related signage. This letter concluded by saying that “[t]his office would approve the plan with these conditions, . . . .” [Note 5] By letter dated July 7, 2008, the Fire Department stated that it was informed by the Department of Public Safety, “as long as the crane is up to date on its annual inspection and the crane has been erected and inspected by a competent operator, the crane presents no undo hazard to the public.” This same letter stated that “while the possibility exists for a crane to collapse on the proposed development . . . the same hazard currently exists for any property within the collapse zone.”

10. By letter dated May 19, 2008, the Chelmsford Water District stated, “[t]he Chelmsford Water District has no concerns with this proposed 40B development.”

11. By letter dated May 20, 2008, the Town of Chelmsford Police Department (the “Police Department”) indicated that it was concerned that the Project’s “plans do not indicate that any changes were made to address the inadequate sight distances to the left upon exiting the property due to the large tree and overgrowth of bush.” By letter dated June 13, 2008, the Police Department stated, “Mr. Emanouil has assured me that he will be removing the large tree and overgrowth of brush from the area of 311 Littleton Road. Based on this conversation, the Police Department has no additional safety concerns or issues with this site.” [Note 6]

12. By letter dated May 20, 2008, the Town of Chelmsford Department of Public Works provided comments, in part, with respect to the Project’s retaining walls, stormwater management plan, Massachusetts Highway Department permits, and sewer lines. [Note 7]

13. On October 2, 2008, by a unanimous vote, the ZBA issued the Comprehensive Permit for the Project, which incorporated, in part, the following findings:

14. The Project includes a six-foot high vinyl fence around the perimeter of Locus. Adjacent to Plaintiffs’ properties, this fence would be eight-feet high (with a four-foot wall underneath). Plaintiffs store trailers along the boundary line with Locus.

15. The Project’s storm water management system’s design includes multiple underground infiltration basins, one of which has a discharge pipe that has minor overflows to an existing swale on the Brooks Property (the “Swale”).

16. Peznola testified that soil testing revealed that most drainage on Locus remained on Locus and that the Project’s goal was to mimic existing rainfall and drainage patterns. According to Peznola,

[M]ost of the runoff is contained and infiltrated in [the storm water management system], and the overflows really don’t come into play. There’s very minor amounts of runoff that in very large storm events that will get into this swale. And again, those rates are the same as or comparable to what our model says happens in the existing conditions.

17. Houston’s testimony regarding drainage was that

A principal overflow is actually through a 12-inch pipe, which is from a large subsurface recharge facility that is in the southeast portion of [Locus]. There is a 12-inch discharge pipe from that underground recharge facility that empties at the Brooks Precision Machining Property line, and the runoff from that point enters the Brooks Precision Machining Property.”

18. A letter from Nitsch Engineering, the Town’s peer reviewer, dated May 22, 2008, states that the storm water runoff from a two-year storm event would be captured by the Project’s storm water management system, but that runoff from ten-year and 100-year storm events would overflow into the Swale. Nitsch Engineering recommended that Hillside Gardens review the runoff volume to determine “if the existing ponding occurring in [the Swale] is impacted.”

19. Hancock Associates responded by letter dated June 18, 2008, and stated that “the [S]wale has an outlet at Kidder Road where the runoff enters a stormwater system. Therefore, the rate is controlled, the swale will see no impact to its overall capacity and its ability to control the runoff collected.”

20. Hancock Associates prepared a Storm Water Management Report Documenting Compliance with the Massachusetts Stormwater Management Standards (the “Storm Water Report”) for Hillside Gardens on July 18, 2008. The Storm Water Report states that the storm water management system “provides for an equal or decrease in runoff for the 2 and 10 year 24 hour storm events while showing negligible increases in the 100 Year 24 hour storm event.”

21. By letter dated August 21, 2008, Nitsch Engineering stated that “[Hillside Gardens] has reviewed the volume to [the Swale] and submitted information that demonstrates the volume has not increase [sic] at this location. This condition has been met.”

22. Holdings has filed an action against Brooks, the Trust and others in Middlesex Superior Court, Chelmsford 110 Holdings, LLC v. Faretra, Trustee of C& G Realty Trust (MICV # 2008-03734-L2), alleging adverse possession and trespass relative to the boundary of Locus with these properties. By order dated October 20, 2009 (the “Superior Court Order”), the Superior Court granted a preliminary injunction regarding trespass to Holdings enjoining, among others, the Trust “from allowing encroachments on to [Locus]” and “from storing, maintaining, or plac[ing] any cranes, booms, or any portion or equipment associated therewith on, across, or over (including vertical airspace above) [Locus].”

***********************

G.L. c. 40B, § 21 provides that “[a]ny public agency or limited dividend or nonprofit organization proposing to build low or moderate income housing may submit to the board of appeals . . . a single application to build such housing in lieu of separate applications to the applicable local boards.” An application for a comprehensive permit pursuant to G.L. c. 40B, §§ 20-23 must meet three project eligibility requirements: (1) the applicant must be a public agency, non-profit organization or limited dividend entity; (2) the project must be fundable by a subsidizing agency under a low and moderate housing subsidy program; and (3) the applicant must control the site. 760 C.M.R. 56.04(1)(a)-(c). The subsidizing agency must establish compliance with the project eligibility requirements in a written determination of project eligibility that includes findings from an initial review of the project. Id. Therefore, under G.L. c. 40B, §§ 20-23, an applicant must prove that they have satisfied the project eligibility requirements and that they are entitled to the comprehensive permit.

The applicant has the burden of proof to show that the comprehensive permit should have been granted. Ranney v. Bd. of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1991). Pursuant to G.L. c. 40B, § 21, this burden of proof is carried out at a trial de novo pursuant to G.L. c. 40A, § 17. This court has the “duty to determine the facts . . ., to apply the governing principles of law, and then to inspect the decision of the board and enter such decree as justice and equity may require.” Joseph v. Bd. of Appeals of Brookline, 362 Mass. 290 , 292 (1972). The board’s decision carries no evidentiary weight, Kirkwood v. Bd of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984); the trial court must defer to the board’s decision on local zoning matters, Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 10 (2003). The board’s decision should not be disturbed “unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 638-639 (1970).

Plaintiffs argue that the Comprehensive Permit is defective regarding several eligibility issues and that the ZBA’s decision to grant the Comprehensive Permit was arbitrary, capricious and unreasonable. Hillside Gardens argues that the Comprehensive Permit is not defective and not arbitrary, capricious, or unreasonable. I shall address each of these issues in turn.

I. Eligibility of the Comprehensive Permit.

Plaintiffs argue that Hillside Gardens failed to show that it had control of Locus; that Hillside Gardens did not comply with the Project Eligibility Letter by failing to notify DHCD that the Project was reduced in size from fifty-nine units to forty-four units; and that Hillside Gardens failed to show that the regional need for affordable housing outweighed valid planning concerns. I shall address each argument in turn.

A. Site Control.

Plaintiffs argue that Hillside Gardens did not have a sufficient interest in Locus to demonstrate site control of Locus because the Purchase and Sale Agreement was not executed and expired by its own terms on August 31, 2007, before Hillside Gardens applied for the Comprehensive Permit. Plaintiffs also argue that the ZBA could not have determined site control when it did not identify the actual dimensions or boundaries of Locus in its decision. Hillside Gardens did not address this argument in its post-trial brief, stating only that “the Application demonstrated the legally required site control.”

To establish site control, the subsidizing agency must find that:

[T]he Applicant controls the site, based on evidence that the Applicant or a related entity owns the site, or holds an option or contract to acquire such interest in the site, or has such other interest in the site as is deemed by the Subsidizing Agency to be sufficient to control the site.

760 C.M.R. 56.04(4)(g) (emphasis added). Thus, Hillside Gardens may establish site control without actually owning the site, so long as a related entity owns the site or DHCD determines that the Applicant has sufficient interest in the site. Plaintiffs do not dispute that Holdings and Hillside Gardens are related entities. Both entities are limited liability corporations with the same owner, manager and principal address. Moreover, the record clearly shows that Holdings owns Locus. Therefore, the fact that the Purchase and Sale Agreement is not executed and expired is irrelevant. Similarly, there is no requirement that the ZBA identify the actual dimensions or boundaries of Locus, particularly when the exact acreage of Locus is immaterial. Most importantly, 760 C.M.R. 56.04(6) states that “[i]ssuance of a determination of Project Eligibility shall be considered by the Board or the Committee to be conclusive evidence that the Project and the Applicant have satisfied the project eligibility requirements of 760 C.M.R. 56.04(1).” Thus, the Project Eligibility Letter itself was sufficient evidence for the ZBA to find that Hillside Gardens had established site control. Therefore, I find that the ZBA correctly determined that Hillside Gardens demonstrated that it established site control over Locus.

B. Failure to Notify DHCD of Changes to the Project.

Plaintiffs argue that Hillside Gardens’ failure to notify DHCD that the Project would be reduced from fifty-nine units to forty-four units means that Hillside Gardens failed to comply with the Project Eligibility Letter, which states that any alternate development plans must be reviewed by DHCD prior to a ZBA decision. Plaintiffs point out that there is no evidence that Hillside Gardens sought or obtained approval for the changes to the Project, which included changes to the site plan, unit design and pro forma. Therefore, Plaintiffs argue, the ZBA could not have found the Project to be fundable by a subsidizing agency or low or moderate income housing subsidy program as required by 760 C.M.R. 56.04(1)(b). Hillside Gardens did not address this argument in its post-trial brief.

Pursuant to 760 C.M.R. 56.04(5):

(5) Substantial Changes. If an Applicant desires to change aspects of its proposal that would affect the project eligibility requirements set forth at 760 CMR 56.04(1), after it has received a determination of Project Eligibility, it shall notify the Subsidizing Agency in writing of such changes, with a copy to the Department, the Chief Executive Officer of the municipality, and the Board. The Subsidizing Agency shall determine within 15 days whether such changes are substantial with reference to the project eligibility requirements. Failure to respond shall be deemed a finding that the change is not substantial.

760 C.M.R. 56.04(5) is clear that an applicant for a comprehensive permit must notify the subsidizing agency in writing of any substantial changes “that would affect the project eligibility requirements.” The Project Eligibility Letter is clear that DHCD must review any “alternative development plans” prior to a ZBA decision including site plan and unit design changes.

The Project Eligibility Letter would appear to derive its authority to require notice of “alternative development plans” from 760 C.M.R. 56.04(5). Although it might appear that any changes to the development plan for Locus must be approved by DHCD, 760 C.M.R. 56.04(5) states that DHCD should be notified of changes “that would affect the project eligibility requirements set forth at 760 C.M.R. 56.04(1).” 760 C.M.R. 56.04(5). Reducing the size of the project by eleven units would not affect the project eligibility requirements because DHCD had already determined that Hillside Gardens is a limited dividend organization, is fundable by a subsidizing agency and demonstrated site control. The findings required under 760 C.M.R. 56.04(4) to issue a project eligibility letter would not be affected by a reduction in the number of units, particularly when the percentage of affordable units in the Project remained the same. [Note 8] Thus, the Project Eligibility Letter appears to exceed what is required by 760 C.M.R. 56.04(5), as that regulation requires notice of “[o]nly the changes affecting the project eligibility requirements.” Furthermore, the Project Eligibility Letter provides no penalties or consequences for failing to inform DHCD about changes to the site plan and there would be no reason for DHCD to not approve the modification if the Project’s scope decreased but the Project continued to meet the eligibility requirements and the percentage of affordable units remained the same. Therefore, I find that the ZBA correctly granted the Comprehensive Permit even though DHCD had not reviewed the reduction in the number of units in the Project.

Nevertheless, Hillside Gardens did make important changes to the Project. In addition to requiring DHCD to determine whether a change is substantial within fifteen days of notice, 760 C.M.R. 56.04(5) also states that

If [DHCD] finds that the changes are substantial, it shall ordinarily defer any review . . . until either the Board has issued a Comprehensive Permit or the application has been denied and the Applicant has lodged an appeal . . . at which time [DHCD] shall reaffirm, amend, or deny its determination of the project eligibility requirements . . . . In the case of a Comprehensive Permit that is not subject to appeal, such decision may be incorporated into [DHCD’s] final approval issued pursuant to 760 C.M.R. 56.04(7). If [DHCD] finds that the changes are not substantial and that the Applicant has good cause for not originally presenting such details in its application, the changes shall be permitted if the proposal as so changed meets the requirements of M.G.L. c. 40B, §§ 20 through 23 and 760 C.M.R. 56.04.

Thus, DHCD would need to determine if any change to the Project were substantial within fifteen days and, because the Comprehensive Permit has been granted, review the changes to the Project to determine whether the changes should be permitted. As discussed earlier, Hillside Gardens’ changes to the Project would not affect the project eligibility requirements and, thus, requiring Hillside Gardens to notify DHCD of the proposed changes would not create an unreasonable delay. Therefore, I order that Hillside Gardens shall notify DHCD of the changes it made in the First Amended Application. [Note 9]

C. Regional Need for Housing and Valid Planning Concerns.

Plaintiffs argue that Hillside Gardens fails to show that the regional need for affordable housing outweighs valid planning objections because locating the Project next to an industrial site on which cranes operate poses an unacceptable risk of injury or death. Hillside Gardens argues that Plaintiffs failed to produce sufficient evidence that the potential harm from the Project outweighs the need for affordable housing.

The standard to be applied to a board of appeals decision is whether the grant of a permit is “consistent with local needs.” G.L. c. 40B, §§ 20-23; Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 364 (1973). To be consistent with local needs, the board must consider “the regional need for low and moderate income housing . . . with the number of low income persons in the city or town affected” and the local need “to protect the health or safety of the occupants of the proposed housing or of the residents of the city or town, to promote better site and building design in relation to the surroundings, or to preserve open spaces . . . .” G.L. c. 40B, § 20.

Plaintiffs argue that the Project’s proximity to a crane yard compromises the health and safety of the proposed housing because a crane falling on to the Project could result in death or serious injury. Plaintiffs’ expert Houston testified that nine units in the Project are within the 150-foot fall zone [Note 10] of the cranes on the Trust Property and that thirty-six units are within the 300-foot whiplash zone. [Note 11] Houston presented statistical evidence on the frequency of cranes falling and the subsequent loss of life and property and testified that damage to residential construction, such as the Project, is much more severe than to industrial property because residential construction is typically wood-frame construction while industrial property is more sturdy as it is constructed from blocks and steel. Plaintiffs argue that Hillside Gardens’ failure to analyze the crane fall zones, Peznola declining to express an opinion on the Project’s safety with respect to the fall zone, and the ZBA’s failure to engage a safety engineer to determine the safety of the Project from a falling crane, show that Plaintiffs have valid safety objections.

Hillside Gardens argues that the need for affordable housing in the Town outweighs any of Plaintiffs’ objections because low or moderate housing in the Town constitutes only 6.8 percent of the total housing units reported in the last U.S. Census, short of the ten percent goal established by the Commonwealth. See G.L. c. 40B, § 20; 760 C.M.R. 56.03(3). Hillside Gardens also points out that the Town identified Locus as part of its housing plan for the construction of affordable housing. Hillside Gardens argues that no local concerns about the Project outweighed the need for affordable housing because the Police Department, the Fire Department, the Sewer Commission and the Water District approved the Project or had their concerns addressed by Hillside Gardens. Hillside Gardens also points out that it responded to concerns about noise generated from the abutting commercial lots adversely affecting residents of the Project by providing sound insulation, increasing the height of fencing and increasing planting and landscaping. Finally, Plaintiffs argue that the Superior Court Order, which forbids cranes from being operated over Locus, remedies any safety concerns about the cranes.

Although there may be risk of cranes falling, such risk does not rise to a level that it outweighs the regional need for affordable housing in the Town. Plaintiffs cite statistics on the frequency of cranes falling, but these statistics reveal nothing about whether the cranes in question were operating or simply being stored. The Superior Court Order prevents Plaintiffs from operating their cranes over Locus, which would reduce the risk of a crane falling on to the Project while operating on the Trust Property. Plaintiffs cite several cases in which the health and safety risks of a project were found to have outweighed the need for affordable housing, but those cases involved greater risks than the present case as well as sites that were much less suitable for residential use compared to the Project. See O.I.B. Corp. v. Braintree Bd. of Appeals, No. 03-15 slip op. at 11 (Mass. Housing Appeals Comm., Mar. 27, 2006) (risk of impeded emergency access to development because of development size, roadways’ length and width, and distance of homes from street network outweighed regional need for housing for 118-unit development); Hamlet Dev. Corp. v. Hopedale Zoning Bd. of Appeals, No 90-03, slip op. at 10 (Mass. Housing Appeals Comm., Jan. 23, 1992) (project being placed directly in front of airport runway was a risk that outweighed need for affordable housing where HUD guidelines and other authorities suggested such risk was too great); Forty Eight Co. v. Westfield Zoning Bd. of Appeals, No. 75-06, slip op. (Mass. Housing Appeals Comm., Aug. 23, 1976) (risk of propane gas explosion, traffic hazards and railroad noise outweighed need for affordable housing at site that had no adjacent residential buildings and was surrounded by manufacturing plant, warehouse, railroad and high-volume roadway). In contrast with these cases, Locus abuts several adjacent residential buildings, is located near a local street and is not subject to any industrial risks such as gas explosions, vandalism and traffic hazards. The fact that Hillside Gardens and the ZBA did not require an analysis of the cranes’ fall zone does not indicate that the cranes pose an unreasonable risk to the Project. The record clearly shows that Hillside Gardens had satisfied the safety concerns of various Town departments and that the ZBA relied on this fact in making its decision. Most importantly, the July 7, 2008 letter from the Fire Department states that the Department of Public Safety had stated that the cranes “present[] no undo hazard to the public” as long as the cranes’ inspections are current and a competent operator has erected and inspected the cranes. Even if the damage from a crane falling on residential construction would be greater than if it had fallen on industrial property, the Fire Department aptly noted that the “same hazard [of a crane falling] exists for any property within the collapse zone,” i.e. the risk of damage from a falling crane applies to any use of Locus. Therefore, I find that the Project is consistent with local needs in that the regional need for affordable housing is not outweighed by health and safety risks of the Project.

II. Arbitrary, Capricious and Unreasonable Decision to Grant the Comprehensive Permit.

Plaintiffs argue that the ZBA’s decision was arbitrary, capricious and unreasonable because (1) the Project is adjacent to the Trust Property; (2) Hillside Gardens lacks permission to use the Swale on the Brooks Property to drain storm water; and (3) Hillside Gardens’s storm water management system will damage their properties. I shall address each of these arguments.

A. Proximity of Residences to the Trust Property.

Plaintiffs argue that the proximity of the Project to the crane yard is an attempt to combine two forms of land use, residential and industrial use, that are incompatible and that the ZBA’s failure to consider this fact was arbitrary and capricious. Plaintiffs offer much of the same evidence to support this point as they did for the proposition that health and safety risks outweighed the regional need for affordable housing. Plaintiffs further contend that residents of the Project will object to the noise and activity of Plaintiffs’ lawful industrial options and points to the fact that Holdings has already filed an action in Superior Court. [Note 12] Plaintiffs also argue that it will be difficult to sell their properties to industrial users because such buyers would fear that residents of the Project would complain about industrial activities. Hillside Gardens argues that it responded to the noise concerns by providing sound insulation, increasing the height of fencing next to commercial abutters, increasing landscaping and moving certain elements further away from Plaintiffs’ properties than originally planned.

Plaintiffs’ arguments do not show that the ZBA’s action in granting the Comprehensive Permit was unreasonable, arbitrary or capricious. As discussed, supra, the cranes on the Trust Property and other industrial uses are not unacceptable risks to public safety. The possibility that residents of the Project would object to Plaintiffs’ industrial uses of the Brooks Property and the Trust Property and the possibility that Plaintiffs might find it difficult to sell their properties amounts to conjecture and does not make the ZBA’s decision unreasonable or arbitrary and capricious. Moreover, Plaintiffs’ fear of how the Project’s residential nature will mesh with Plaintiffs’ industrial uses is speculative at best and is at odds with the reports of various Town authorities that attest to the adequacy and safety of the Project. Therefore, I find that the ZBA did not act unreasonably, arbitrarily and capriciously in approving the Comprehensive Permit where some residences are in close proximity to the Trust Property.

B. Permission to Drain Storm Water Through the Swale.

Plaintiffs argue that overflow from the Project’s storm water management system would discharge into the Swale and point to Peznola’s testimony as proof. Plaintiffs contend that Hillside Gardens does not have a drainage easement to discharge storm water into the Swale and never sought such a drainage easement. Thus, Plaintiffs argue, Hillside Gardens’ actions will constitute a trespass and damage their properties, and the ZBA’s failure to consider this was unreasonable, arbitrary and capricious. [Note 13]

“A trespass . . . requires an unprivileged, intentional intrusion on land in the possession of another.” Wellesley Hills Realty Trust v. Mobil Oil Corp., 747 F. Supp. 93, 99 (D. Mass. 1990) (citing New England Box Co. v. C&R Const. Co., 313 Mass. 696 , 707 (1943)). Under the reasonable use doctrine, which governs surface water [Note 14] disputes, “‘each possessor is legally privileged to make reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.’” Desanctis v. Lynn Water & Sewer Comm’n, 423 Mass. 112 , 116 (1996) (quoting Armstrong v. Francis Corp., 20 N.J. 320, 327 (1956)). [Note 15]

In the Appeals Court Decision, the Appeals Court stated that “[a]t trial, Hillside Gardens’ own project plans showed that a stormwater discharge pipe [(the “Discharge Pipe”)] penetrated the Brooks property and directed water into an existing swale on that property.” Brooks v. Chelmsford Hillside Gardens, LLC, 10-P-1817 (Sept. 15, 2011) at 2. The Appeals Court Decision also referred to “the reality of the trespass of [the “Discharge Pipe”] and its transported water on to the Brooks property” and in a footnote noted that “‘[o]ne who causes an object to be placed on the [property of another] is as liable for trespass as one who enters the land in person.’” Id. In stating that the Discharge Pipe would lie on the Brooks Property, the Appeals Court appeared to rely on a finding in Land Court Decision 1 that “[t]he Project’s stormwater design includes multiple underground infiltration basins one of which is linked to a Discharge Pipe that directs flow across Brooks Property to an existing swale.” That finding in Land Court Decision 1 was intended to indicate only that flows from the Discharge Pipe would go on to the Brooks Property and was not a finding that the Discharge Pipe itself would lie on the Brooks Property. The facts indicate that the Discharge Pipe would remain on Locus. Peznola did not testify that the Discharge Pipe would lie on the Brooks Property and Hillside Gardens’ plans do not show the Discharge Pipe lying on the Brooks Property. In fact, Plaintiffs’ expert Houston testified that the Discharge Pipe “empties at the Brooks Precision Machining Property line.” Therefore, the Discharge Pipe itself does not constitute a trespass on to the Brooks Property.

Plaintiffs have not brought a trespass action against Hillside Gardens. Plaintiffs appear to argue that the ZBA’s decision to grant the Comprehensive Permit was arbitrary and capricious because the ZBA should have anticipated that drainage from the Project would constitute a trespass on to the Brooks Property. The trial record indicates that drainage from the Project would not constitute a trespass and is unlikely to cause damage to Plaintiffs’ properties. [Note 16]

Peznola testified that under existing conditions most drainage on Locus remains on Locus and that the Project’s goal is to mimic existing rainfall and drainage patterns. Peznola also testified that most runoff would be contained within the storm water management system and although minor amounts of runoff from very large storm events may flow into the Swale, “those rates are the same as or comparable to what our model says happens in the existing conditions.” (emphasis added). In other words, under existing conditions, minor overflows in large storm events already go from Locus to the Swale and the Project’s drainage system replicates these conditions. Moreover, the Storm Water Report and the subsequent peer review reports from Nitsch Engineering establish that rainfall on Locus will be contained within the Project’s storm water management system except in the case of very large storm events, specifically ten-year and 100-year twenty-four hour storm events. In his testimony, Peznola referenced the Storm Water Report and the Town’s peer review and established that the Project complied with the Town’s storm water requirements in addition to those imposed by the Massachusetts Department of Environmental Protection. Houston did not counter Peznola’s testimony, the Storm Water Report or the Town’s peer review. Therefore, even though the Project would direct minor overflows in large storm events to the Swale, existing rainfall conditions and drainage patterns on Locus already result in this minor overflow going from Locus to the Swale.

Peznola’s testimony that the storm water management system was designed to mimic existing rainfall and drainage patterns and that the proposed system was consistent with current rate of minor overflows from Locus to the Swale shows that there will be no adverse impact on the Brooks Property. Furthermore, the record establishes that the Swale has an outlet on Kidder Road, which also supports the fact that the rate of any runoff from the Project to the Swale as a result of a large storm would be consistent with Locus’s pre-development conditions.

Therefore, I find that the ZBA’s decision to approve the Project was not arbitrary and capricious where the Discharge Pipe does not lie on the Brooks Property and Hillside Gardens’ storm water management system mimics existing drainage conditions where only minor overflows from major storm events flow into the Swale.

C. Storm Water Management System Causing Damage to Plaintiffs’ Properties.

Plaintiffs argue that the subsurface recharge structures in the Project’s storm water management system would increase ground water elevations on Plaintiffs’ properties and damage Plaintiffs’ properties. Plaintiffs argue that the ZBA’s failure to consider this was unreasonable arbitrary and capricious.

The Trust admits that it did no independent study on the Project’s storm water runoff. Rather, Plaintiffs’ expert (Houston) simply referenced the technical data contained within the reports prepared by Hillside Gardens. [Note 17] Based on the higher elevations and locations of the Project’s storm water basins, as compared to Plaintiffs’ properties, Houston stated that it was “likely” that Plaintiffs’ properties would be adversely impacted by increased groundwater elevations caused by the Project. [Note 18] In the brief testimony that Houston provided regarding the design of the Project’s storm water management system, he simply noted the relative elevations and locations of the Project’s proposed underground drainage structures as well as the maximum volume of water that one basin was designed to accommodate. Based on this information, Houston concluded that Plaintiffs’ properties were “likely” to be adversely impacted by increased groundwater elevations. Even so, Houston failed to explain why the Project’s layout would likely result in increased groundwater. Furthermore, Houston’s testimony is directly at odds with Peznola’s testimony, the Storm Water Report and Nitsch Engineering’s conclusion that storm water from the Project would remain within the storm water management system except for minor overflow from large storm events that would drain into the Swale, which is consistent with the existing conditions on Locus. Therefore, I find that the ZBA did not act unreasonably, arbitrarily or capriciously by failing to find that the Project’s storm water management system would damage Plaintiffs’ properties because Plaintiffs have not presented sufficient evidence that the Project’s storm water management system would indeed damage Plaintiffs’ properties.

III. Conclusion.

As a result of the foregoing, I find that Hillside Gardens is entitled to the Comprehensive Permit. [Note 19]

Judgment to enter accordingly.