Home 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.

MISC 12-460188

March 18, 2014

Plymouth, ss.

Cutler, C. J.


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”). The Plaintiffs have 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 State 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]

Following a hearing on February 26, 2013, the Parties’ cross-motions were taken under advisement. By decision dated March 18, 2014, this court determined that the material facts are not in dispute. On the basis of such undisputed facts, the court denied Plaintiffs’ Motion for Summary Judgment and allowed Defendant Edgewood’s cross motion. In accordance with the March 18, 2014 Summary Judgment Decision, it is therefore: ORDERED and ADJUDGED that the Plaintiffs have failed to carry their burden to demonstrate that the February 9, 2012 decision of the Rochester Board of Appeals was in excess of that Board’s authority; and it is further

ORDERED and ADJUDGED that the Plaintiffs’ G.L. c. 40A, § 17 appeal in this matter is accordingly DISMISSED.

So ordered.


[Note 1] The Plaintiffs submit that the proposed Asphalt Plant will result in many negative impacts which make the use offensive and detrimental to the neighborhood, but state that they have elected to base their summary judgment motion solely on the noise regulation issue. As the Plaintiffs have not characterized their summary judgment motion as a partial one, I deem all other claims to have been waived.

[Note 2] “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56(c).