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 (principal of Hillside Gardens) and Joseph Peznola (civil engineer). Testimony for Plaintiffs was given by Charles Brooks (“Brooks”) (Plaintiff), Craig Faretra (Plaintiff), Guy Faretra (Plaintiff), and Thomas 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 the court 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. A decision of today’s date (“Land Court Decision 2”) has been issued.
In accordance with Land Court Decision 1 and Land Court Decision 2, it is:
ORDERED and ADJUDGED that the ZBA correctly determined that Hillside Gardens demonstrated that it established site control over property located at 311 Littleton Road, Chelmsford, Massachusetts (“Locus”)
ORDERED and ADJUDGED that the ZBA correctly granted the Comprehensive Permit even though the Department of Housing and Community Development (“DHCD”) had not reviewed the reduction in the number of units in the dwelling unit project on Locus (the “Project”).
ORDERED and ADJUDGED that Hillside Gardens shall notify the DHCD of the changes it made in its First Amended Application for the Comprehensive Permit.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED that the ZBA did not act unreasonably, arbitrarily and capriciously in approving the Comprehensive Permit where some residences are in close proximity to the property owned by the Trust.
ORDERED and ADJUDGED that the ZBA’s decision to approve the Project was not arbitrary and capricious where Hillside Gardens’ storm water discharge pipe does not lie on 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 located on Brooks’ property.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED that Hillside Gardens is entitled to the Comprehensive Permit. [Note 2]
By the court. (Sands, J.)
[Note 1] The ZBA did not appear at the case management conference and asked to be excused from actively litigating the remainder of the proceedings.
[Note 2] Plaintiffs challenge only the ZBA’s decision to grant the Comprehensive Permit and do not challenge any of the conditions that the ZBA attached to its decision.