CAROL D'ACCI; MICHAEL D'ACCI; BRANDON EMPEY; KRYSTLE EMPEY; EMMA GALVIN; JEFFREY MASON; SEAN SOMERS; Albert Todesca and Paul Todesca, as Trustees of TODESCA REALTY TRUST; and Paul Murphy, as Trustee of WILLARD REALTY TRUST v. Richard Cutler, Randall Cabral, Kirby Gilmore, Benjamin Gilmore, and Davis Sullivan, as they are Members of the ROCHESTER BOARD OF APPEALS; And EDGEWOOD DEVELOPMENT COMPANY, LLC.

Introduction

The Plaintiffs in this case appeal under G.L. c. 40A, §17 from a decision of the Defendant Rochester Board of Appeals (“ZBA”) which denied an appeal of the Rochester Planning Board’s site plan approval for a bituminous concrete facility ( the “Asphalt Plant”) proposed by Defendant Edgewood Development Company, LLC (“Edgewood”). In their Complaint, the Plaintiffs, who either own or reside in residences located on other, industrially zoned land near the site of the proposed facility, claim to be aggrieved by the ZBA’s decision due to lighting, traffic, noise, smoke, visual intrusion, dust and odor impacts.

The Plaintiffs have now moved for summary judgment annulling the ZBA’s decision as legally untenable because the Planning Board’s approval of Edgewood's site plan application was in contravention of the Rochester Zoning By-law (the “By-law”). More specifically, the Plaintiffs contend that the site plan should have been denied because the proposed Asphalt Plant will generate noise in excess of the limits imposed under the Massachusetts Department of Environmental Protection (“DEP”) sound regulations, in violation of: (1) the By-law § XVI (1.4) (14) requirement that a site plan must conform with State sound regulations; and (2) the By-law § IV (D) (1) prohibition against any use in the Industrial District that “would be detrimental or offensive or tend to reduce property values in the same or adjoining district.” The Plaintiffs contend that, in light of Edgewood’s failure to demonstrate sufficient noise mitigation measures to bring the proposed facility into compliance with State standard, approval of Edgewood’s site plan was also contrary to the requirement of By-law § XVI (1.3) (3) that the Planning Board reject a site plan application that “is so intrusive on the needs of the public in one regulated aspect or another” that no reasonable conditions can be devised to satisfy the problem with the plan. [Note 1]

In opposing the Plaintiffs’ motion, Defendant Edgewood does not disagree with the Plaintiffs’ assertion that, under applicable DEP regulations, the operation of Edgewood’s proposed concrete facility may not increase the noise level at the property line by more than 10 dB(A) over ambient levels. And, for the purposes of summary judgment, the Defendant concedes that, according to the information presented to the Planning Board during site plan review, the proposed Asphalt Plant was projected to increase ambient levels by more than DEP’s 10 dB(A) limit. However, Edgewood disputes the Plaintiffs’ interpretation of the By-law as prohibiting any use in the Industrial District which has the potential of violating DEP noise limits in the future, and as making demonstration of a proposed facility’s compliance with the State sound regulations a mandatory prerequisite for site plan approval. It has therefore cross-moved for the entry of summary judgment against the Plaintiffs, dismissing the appeal. [Note 2]

Summary judgment is appropriate when there is no genuine issue as to any material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Godfrey v. Globe Newspaper Company, Inc. 457 Mass. 113 , 118-119 (2010). Here, I find that the material facts are not in dispute, and that on the basis of such undisputed facts, [Note 3] the Defendants are entitled as a matter of law to the entry of summary judgment dismissing Plaintiffs’ appeal.

Undisputed Material Facts

Defendant Edgewood seeks to construct a bituminous concrete manufacturing plant (the “Asphalt Plant”) on several parcels of land located on Kings Highway in Rochester, Massachusetts (the “Locus”), which it has agreed to purchase. The Locus is located within Rochester's Industrial zoning district, and is adjacent to property on which an existing asphalt plant has been operating for a number of years.

Plaintiffs Michael and Carol D’Acci own property at 119 Kings Highway, directly abutting the Locus. Plaintiff Jeffrey Mason resides at 113 Kings Highway, which also abuts the Locus and is owned by Plaintiff Paul Murphy as Trustee of the Willard Realty Trust. Plaintiffs Albert Todesca and Paul Todesca are the Trustees of Todesca Realty Trust (“TRT”). TRT owns residential properties located at 19 and 35 Kings Highway, neither of which properties abuts the Locus. Plaintiffs Emma Galvin and Sean Somers reside at 19 Kings Highway, and Plaintiffs Brandon and Krystle Empey reside at 35 Kings Highway.

With certain limited exceptions not pertinent here, “[m]anufacturing, industrial or commercial uses including processing, fabrication, assembly and storage of materials” are allowed by right in the Industrial District in which the Locus is located, provided that “no such use is permitted which would be detrimental or offensive or tend to reduce property values in the same or adjoining district.” By-law § IV (D) (1). Pursuant to By-law § IV (C) (1), the site plan review and approval process detailed in By-law § XVI applies in the Industrial District.

Pursuant to By-law § XVI. 1.1, the Building Commissioner may not issue a permit for the building, alteration or expansion of any nonresidential building, structure or use of land which exceeds specified floor area, parking or value thresholds, [Note 4] “until he or she has received from the planning board a written statement of site plan approval by the planning board” and “[t]he Building Commissioner shall enforce the fulfillment of any conditions the Planning Board may impose.”

According to the “Procedures and Decision” provisions of By-law § XVI. (1.9) (3), the Planning Board may take one of two actions with respect to an application for site plan approval: (1) if the Planning Board finds that the proposed development is in conformance with the Bylaw, the Board “shall approve” the site plan and, in doing so, “may impose conditions, limitations and safeguards … which shall be part of such approval;” or (2) the Planning Board “shall reject” the site plan in one of the four circumstances listed in By-law § XVI.(1.3) (“Grounds for Denial’): (a) noncompliance with the By-law, or (b) incompleteness of the application, or (c) the site plan “is so intrusive on the needs of the public in one regulated aspect or another that rejection by the Planning Board would be tenable because no form of reasonable conditions can be devised to satisfy the problem with the plan,” or (d) the “applicant has not met the standards of review and reasonably addressed the conditions outlined in Section 1.4 [of Bylaw § XVI].”

Section XVI. 1.4 (“Subsection 1.4”), entitled “Standards for Review,” describes the objectives of site plan approval, including a recognition that the process “is designed to provide a balance between landowner’s rights to use his land with the corresponding rights of abutters and neighboring landowners to live or operate businesses without undue disturbance (e.g. noise, congestion, smoke, dust, odor, glare, stormwater runoff, etc.).” Pertinent to the issues raised on summary judgment in this case, Subsection 1.4 also provides that:

Site Plan approval shall be granted upon determination by the Planning Board that the following considerations [Note 5] have been reasonably addressed by the applicant. The Planning Board may impose reasonable conditions, at the expense of the applicant, to secure this result…. New building construction or other site alteration shall be designed in the site plan, after considering the qualities of the specific location, the proposed land use, the design of the building form, grading, egress points and other aspects of the development, so as to: … 14. Conform with State and local sound regulations as amended from time to time.

[Emphasis added.]

Rochester does not have local sound regulations. The Parties are in agreement that the applicable State sound regulations are currently found at 310 CMR 7.10, and are administered by the Massachusetts Department of Environmental Protection (“DEP”). That regulation provides:

No person owning, leasing, or controlling a source of sound shall willfully, negligently, or through failure to provide necessary equipment, service or maintenance or to take necessary precautions cause, suffer, allow, or permit unnecessary emissions from said source of sound that may cause noise.

According to DEP’s written policies, a noise source is considered to violate 310 CMR 7.10 if the source “[i]ncreases the broadband sound level by more than 10 dB(A) above ambient…” as measured both at the property line and at the nearest inhabited residence. [Note 6]

In November 2010, Edgewood applied to the Planning Board for site plan approval in connection with its proposed Asphalt Plant. The Planning Board conducted a series of public hearings on the proposal, continuing over several months. In February of 2011, while Edgewood’s site plan was still under review, Plaintiff TRT engaged a consultant to conduct a noise study in the vicinity of the Locus. As part of the noise study, ambient noise levels were measured continuously over a seven day period from 12:00 PM on Saturday, February 12, 2011 to 12:00 PM on Saturday, February 19, 2011. During this period, the lowest ambient noise level measured at the property line of 113 Kings Highway (the residential property abutting the Locus) was 41 dB(A) at 2:00 AM on Saturday, February 19, 2011. Through modeling, TRT’s consultant estimated that operation of the Asphalt Plant would result in noise levels of 70 to 71 dB(A) at the 113 Kings Highway property line – about 30 dB[A] above ambient.

Edgewood’s own noise consultant responded during the site plan hearings that, with planned noise mitigation measures in place, the 70 dB(A) noise level predicted by TRT’s consultant could be reduced to approximately 55 dB(A) or lower at the property line of the residence. There is no disagreement that a reduction to 55 dB(A) [Note 7] would not be enough to bring the sound levels into compliance with the DEP limit of 10 dB(A) above the ambient noise level measured by TRT’s consultant. However, it is also undisputed that the proposed facility will require a DEP Air Permit before it can operate and, that in order to obtain said Permit, Edgewood will be required to present detailed plans and specifications to DEP demonstrating that operations will conform to the State sound regulations.

The Planning Board unanimously found that the proposed Asphalt Plant was an allowed use in the Industrial District, and it conditionally approved Edgewood's site plan application. The Planning Board’s comprehensive, eight-page decision, dated May 24, 2011 (the “Site Plan Approval”) imposes forty-three (43) pre- and post- construction conditions. Among those conditions are the following three conditions listed under the “Noise” heading:

1. The facility must comply with any applicable DEP Noise Regulations including, but not limited to, (310 CMR 7.10), as well as all other special conditions of the DEP Air Permit to be obtained by the applicant prior to the issuance of a Certificate of Occupancy. The applicant shall provide the Zoning Enforcement Officer and the Planning Board weekly audio reports documenting the ambient sound levels at normal and peak hours of operation along the perimeter of the subject parcel for 60 days following the commencement of operations and during the initial seven (7) days of night operations to ensure compliance with the DEP regulations.

2. Once the facility is operational, the applicant shall be responsible for paying for the Planning Board to retain a noise monitoring consultant to submit seasonal reports to ensure continued compliance with the MassDEP noise standards pursuant to M.G.L. Chapter 44, § 53G. A report shall be submitted by May1, August 1, and November 1 of each calendar year.

3. All trucks and equipment under control of the owner that conduct activity on the site shall be equipped with an alternate back-up alarm system that allows for more localized noise and adjustment to the level of background noise.

(the “Noise Conditions”).

Five of the Plaintiffs in this case: Carol and Michael D’Acci, Brandon and Krystle Empey, and Paul Todesca as Trustee of TRT (together with two other individuals) timely appealed the Site Plan Approval to the ZBA. [Note 8] By decision dated February 9, 2012, the ZBA unanimously declined to reverse the Planning Board's decision. This appeal under G.L. c. 40A, § 17 followed.

Discussion

The legal issue to be decided on summary judgment is whether the ZBA exceeded its authority in refusing to reverse the Site Plan approval because, as contended by the Plaintiffs, Edgewood did not present sufficient noise mitigation measures to demonstrate that the proposed Asphalt Plant would conform with State Sound regulations in accordance with By-law § XVI (1.4) (14). For the reasons discussed below, I conclude that the ZBA did not exceed its authority in this regard.

While Edgewood has some quarrel with the accuracy of the ambient noise level measured by TRT’s consultant and with the assumptions on which TRT’s noise consultant based his conclusions, it admits for purposes of summary judgment that the mitigation measures it presented during site plan review were insufficient to demonstrate the proposed facility’s actual compliance with State noise limits. Edgewood argues, however, that it was not required under the By-law to establish the facility’s actual compliance with State sound regulations at the site plan review stage, where the building and design plans for the facility were only preliminary and where DEP will need to determine compliance with State sound regulations when it grants the required Air Permit for the Asphalt Plant. Edgewood further contends that the Site Plan Approval assured Edgewood’s conformance with the State regulations by imposing the Noise Conditions on the Site Plan Approval.

Although the material facts are not in dispute, the Plaintiffs have failed to establish their entitlement to judgment as a matter of law. I find nothing in the By-law provisions proffered by the Plaintiffs [Note 9] which support their assertion that the By-law required rejection of Edgewood’s site plan in the circumstances. Contrary to Plaintiffs’ contention, the By-law does not mandate denial of site plan approval whenever an applicant has failed to demonstrate compliance with one or more of the site plan considerations set forth in Subsection 1.4. Rather, Subsection 1.4 explicitly provides that site plan approval “shall be granted upon determination by the Planning Board that the following considerations [including conformance with noise regulations] have been reasonably addressed by the applicant.” Subsection 1.4 then goes on to provide that the Planning Board may impose reasonable conditions, at the expense of the applicant, to secure this result….”

“Reasonably addressed” does not necessarily mean a demonstration that a particular consideration has been fully met. Clearly, in the case of a proposed facility, such as the Asphalt Plant, no final or accurate determination of compliance with State noise regulations would be possible until it is in operation. Moreover, it is DEP which has the authority, in the first instance, to determine whether the facility is designed to operate in conformance with the State noise regulations. Such determination will not occur until Edgewood applies to DEP for an Air Permit for the facility. Given these factors, and recognizing that the Asphalt Plant will not be able to operate without a DEP Air Permit, it was not unreasonable for the Planning Board to have considered the issue of conformance with State sound regulations to have been “reasonably addressed” at the site plan review stage, despite the applicant’s failure to demonstrate actual conformance through its site plan submission.

Moreover, there is nothing in the summary judgment record to support the Plaintiffs’ theory that this is a situation where the proposed site plan is “so intrusive on the needs of the public” that rejection of the site plan “would be tenable because no form of reasonable conditions can be devised to satisfy the problem with the plan.” See By-law § XVI(1.3) (3). To the contrary. In light of the fact that the proposed Asphalt Plant is, in any event, subject to the State sound regulations, and will be subjected to the DEP’s determination of compliance during the required Air Permit process, it is apparent that any potential noise mitigation deficiencies (such as those identified by TRT’s noise consultant) are amenable to correction through reasonable conditions.

It is well-settled that denial of site plan approval for a by-right use will be upheld only if a problem presented by the site plan is “so intractable that it could admit no reasonable solution” or if the site plan application “fails to furnish adequate information….” See Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 283 (1986); See also, Castle Hill Apartments Ltd. Partnership v. Planning Board of Holyoke, 65 Mass. App. Ct. 840 , 846 (2006) (explaining that there is no discretion to deny site plan approval for a by-right use, absent intractable conditions threatening public health and safety.) Here, Plaintiffs have failed to demonstrate that Edgewood’s site plan suffered from either of the infirmities which would justify denial under controlling case law.

Indeed, the Noise Conditions imposed by the Planning Board are designed to ameliorate the concerns about excessive noise levels and insufficient noise mitigation raised by the Plaintiffs during the site plan review process. Consistent with the objective of site plan approval set forth in Subsection 1.4, the Noise Conditions effect a reasonable balance between Edgewood’s right to construct a facility for a by-right use in the Industrial District with the rights of abutters and neighboring landowners to live or operate businesses without undue noise disturbance generated by plant operations exceeding DEP sound limits.

Thus, where the Planning Board acted properly and within its site plan review authority by subjecting the Site Plan Approval to the Noise Conditions in order to secure the necessary future and continuing compliance with State sound regulations at the expense of the applicant, it cannot be said that the ZBA exceeded its authority by declining the Plaintiffs’ petition to reverse that Site Plan Approval.

The Plaintiffs fair no better with their argument that the By-law required Edgewood’s site plan to be rejected because the proposed Asphalt Plant is not an allowed use in the Industrial District. Plaintiffs contend that, because Edgewood did not demonstrate conformance with the State sound regulations during the site plan review process, the proposed Asphalt Plant must be deemed to be so detrimental and offensive that it is prohibited under By-law § IV.D.(1). As such, Plaintiffs say, the Planning Board was required under § XVI (1.9) to reject Edgewood’s site plan due to the application’s non-compliance with the By-law.

Plaintiffs have offered no legal or factual support for the proposition that a use’s nonconformance with State sound regulations is so inherently detrimental and offensive that such use must be deemed a prohibited use in the Industrial District pursuant to By-law § IV. D. (1). Moreover, as discussed above, there can be no accurate determination of the proposed Asphalt Plant’s compliance with State sound regulations before final plans for the construction and operation of the facility have been reviewed by DEP and the plant has commenced operations pursuant to a DEP Air Permit. There is also nothing in the summary judgment record to suggest that the proposed Asphalt Plant cannot be designed to operate in accordance with State sound regulations, or that it will, in fact, operate in violation of the State’s standards once it is opened. Simply put, both under State law and the terms and conditions of the Site Plan Approval (including the Noise Conditions), Edgewood will not be allowed to operate the proposed Asphalt Facility except in compliance with the applicable State sound regulations. Therefore, Plaintiffs’ argument is based on pure conjecture at this stage.

CONCLUSION

Based upon the undisputed material facts, and for the reasons discussed, I find that the Defendants are entitled to judgment as a matter of law that the ZBA did not exceed its authority in denying Plaintiff’s appeal of the Site Plan Approval for Edgewood’s proposed Asphalt Plant. Plaintiffs’ Motion for Summary Judgment is therefore DENIED, and Defendant Edgewood’s Cross Motion for Summary Judgment is ALLOWED. Judgment to enter accordingly, dismissing Plaintiffs’ appeal.