MISC 09-414098

July 6, 2015

Norfolk, ss.



At issue in this long standing case is an appeal of the approval of a special permit modification issued by the Town of Braintree Planning Board (Board), whose members are Defendants, to Defendant RMT Braintree, LLC (RMT), owner of property located at 531 Pond Street in Braintree (Locus). Roger Aiello, as Trustee of the Roger E. Aiello Revocable Trust (Aiello or Plaintiff), owns property abutting Locus. Locus lies in a commercial zoning district, while the property owned by Aiello is in a residential zoning district. Both properties are also in the Watershed Protection Overlay District (WPD). Locus consists of approximately 9.25 acres and is improved with a 62,270 square foot non-residential structure comprising a non-residential garage, with light manufacturing and accessory offices. Defendant McCourt Construction (McCourt) occupies tenant space at Locus. [Note 1]

The decision at issue in this case modified a special permit issued by the to RMT’s predecessor-in-title (1994 Special Permit). On December 1, 2008, RMT submitted its application for a special permit modification to the Board, seeking relief from specific conditions of the 1994 Special Permit. The Board granted the modification on September 16, 2009 (2009 Modification), prompting Aiello’s October 13, 2009 appeal to the Land Court.

Pre-Trial Motions and Proceedings

In his original one-count complaint, Aiello alleged, pursuant to G. L. c. 40A, § 17, that the Board’s decision to grant the 2009 Modification was legally untenable, or unreasonable, capricious or arbitrary. Aiello also alleged that the Board improperly considered financial and political considerations in rendering its decision, rather than applying appropriate zoning standards. All Defendants timely filed answers. Several months later, Aiello filed a motion to amend his complaint, seeking to add a count that the 2009 Modification was rendered in violation of Article XXIX of the Massachusetts Declaration of Rights (Art. 29) and in violation of Aiello’s right to due process. Aiello alleged members of the Board prejudged and predetermined the application for the special permit modification, and were influenced by the Mayor of Braintree in rendering its decision. The motion was allowed and an Amended Complaint was filed October 8, 2010. All Defendants filed Answers to the Amended Complaint on November 1, 2010.

Also on November 1, 2010, Defendants filed a Joint Motion to Dismiss Plaintiff’s Art. 29 claim (Count II of the Amended Complaint). The court (Trombly, J.) granted the motion on January 20, 2011. Aiello petitioned the Single Justice of the Appeals Court, pursuant to G. L. c. 231, § 118 (first para.), and the Single Justice reinstated Count II, due to concerns that the Art. 29 claim could not be sufficiently resolved “absent a full record for appeal following discovery and trial.” [Note 2]

Two years of vigorous motion practice, pre-trial disputes and trial preparation followed. On October 10, 2012, this court appointed the Honorable Rudolph Kass (ret.) to serve as a discovery master in order to assist the parties in their ongoing discovery disputes. [Note 3] Justice Kass was given the same authority as that of this court to issue discovery orders in accordance with Mass. R. Civ. P. 26 through 37 (Discovery Order). Aiello filed a second Motion to Amend Complaint on February 6, 2013, which this court granted on March 5, 2013, after receiving no opposition from Defendants. The Board members and RMT/McCourt filed answers to the Second Amended Complaint on March 27, 2013, and April 26, 2013, respectively. On October 3, 2013, after briefing by all parties, this court ordered the trial would proceed in a bifurcated manner, with the G. L. c. 40A, § 17 claim proceeding first (Phase 1) to determine whether the Board’s decision was unreasonable, whimsical, capricious or arbitrary and should therefore be annulled. If the court so held, the parties would proceed with the second phase of trial: Aiello’s Art. 29 claim (Phase 2). [Note 4]

On October 4, 2013, RMT/McCourt filed several joint motions in limine, seeking to limit upcoming trial testimony and documentary evidence. [Note 5] Plaintiff filed one motion in limine seeking to preclude Defendants from challenging his standing under G. L. c. 40A, § 17. [Note 6] In a November 7, 2013 order (November 7, 2013 Order), this court granted Defendants’ motions in limine regarding Roger and Darlene Aiello, precluding them from testifying as to the alleged diminution of their property value either as lay or expert witnesses. [Note 7] The court granted Defendants’ motion in limine regarding prior zoning relief or permits granted to Locus, precluding any challenges to relief or uses granted prior the 2009 Modification and not timely appealed by Plaintiff. The court granted Defendants’ motion in limine regarding the new fire lane in part, allowing evidence to the extent that Plaintiff could demonstrate an alleged harm or non-speculative injury due to the fire lane’s location under the 2009 Modification.

Evidence regarding the Town of Braintree Master Plan was limited to its contents and the fact it was adopted by the Town and extant in its adopted form. Evidence regarding other zoning enforcement actions and the settlement of alleged zoning violation fines was precluded, as was evidence regarding any alleged health department complaints. Defendants’ motion in limine to exclude evidence of the Mayor’s site visit and testimony from the parties’ attorneys was allowed. Essentially, most evidence purporting to demonstrate an alleged bias in the Board’s decision or alleged improper communications between the Board, RMT and McCourt was excluded, without prejudice to Plaintiff’s ability to raise such evidence in Phase 2 of the trial, should the case proceed to the Art. 29 claim. [Note 8]

Plaintiff’s motion in limine, seeking to preclude Defendants from challenging Plaintiff’s standing, was denied. In support, Plaintiff relied on a prior order issued by Judge Trombly on September 28, 2010, allowing Plaintiff’s first motion to amend his Complaint. Plaintiff alleged Judge Trombly’s order was a definitive ruling that Plaintiff had standing under G. L. c. 40A. However, this court concluded the order only summarized Plaintiff’s allegations of a particularized injury and did not constitute an affirmative finding of standing, leaving that issue for trial.

Trial Proceedings

The court viewed the properties in the presence of all parties’ counsel on September 11, 2014. Seven days of trial took place on September 15-19, 22, and 23, 2014. The court heard testimony from H. Thomas French, an engineer, surveyor and land planner with Highpoint Engineering, Inc., in Bridgewater; Douglas J. Hartnett, a registered professional engineer and managing principal of Highpoint Engineering; Melissa Santucci-Rozzi, principal planner for the Town of Braintree; Donald Bouchard, senior vice president at Lincoln Property Company, a national real estate firm; Eric Hubler, senior inspector with Canco Fire Sprinkler Services, in West Yarmouth; Robert Harnais, Chairman of the Town of Braintree Planning Board; Ryan McCourt, an owner of McCourt Construction; James Eng, member of the Braintree Planning Board; Roger Aiello, Plaintiff; and Thomas C. Houston, president of Professional Services Corp., an engineering and planning firm.

On September 22, 2014, the sixth day of trial, following the testimony of Board member Mr. Eng, Aiello filed an Emergency Motion to Continue the Trial and a Motion Requiring Production of Documents. Specifically, Plaintiff sought copies of any and all documents from McCourt pertaining to a contract between McCourt and the MBTA (“T”) for work performed on the “E Line” project on Huntington Avenue in Boston (“Huntington Ave. Project”). One of Aiello’s central allegations in this case had been is that certain members of the Board – Chairman Robert Harnais and member James Eng –were biased in favor of McCourt. During his limited deposition allowed by the court to ascertain whether he was biased in favor of the applicant, Mr. Eng failed to recall or misstated certain circumstances and timeframes relating to his professional contact with McCourt. At trial, Mr. Eng testified that, in preparation for his testimony, he had reviewed prior documents, which refreshed a previously forgotten professional involvement with McCourt while Mr. Eng was employed by the “T” as a consultant at a time when he was sitting on the Board. [Note 9] Mr. Eng further testified as to the existence of McCourt’s “T” contract when clarifying the time periods during which he worked for the “T”, directly and indirectly supervising various levels of work done by McCourt.

The court denied Plaintiff’s Emergency Motion, finding first that Aiello could not claim unfair surprise at trial. [Note 10] Although Mr. Eng either misstated or forgot specific timeframes during which he oversaw McCourt while employed by the “T” during his deposition, Aiello had also deposed Ryan McCourt and Richard McCourt, who did describe the E Line project and Mr. Eng’s involvement. In spite of the McCourt’s deposition testimony, taken during the same time period as Mr. Eng’s deposition, Aiello did not pursue further discovery on this point. Second, the court disagreed that Mr. Eng’s trial testimony directly contradicted his deposition testimony, and found Mr. Eng sufficiently and credibly explained any discrepancies. [Note 11] Based on its assessment of Mr. Eng’s testimony and credibility, and upon review of Mr. Eng’s deposition and Affidavit, the court found that Mr. Eng was not biased in favor of McCourt nor was he prejudiced against Aiello.

Based on the parties’ stipulations, the credible testimony and exhibits entered in evidence at trial and the reasonable inferences drawn therefrom and informed by the court’s observations at the view, the court finds that Plaintiff is not aggrieved by the Board’s grant of the 2009 Modification and, therefore, the decision must be AFFIRMED, and Plaintiff’s appeal dismissed. For the reasons set forth below, and despite the ruling that Plaintiff does not have standing and the resulting affirmance, this court has detailed its findings and rulings on the merits of the appeal in the interest of judicial economy. In so doing, this court concluded that the Board’s decision that the screening provisions of the Buffer Zone By-law were satisfied by the installation of an eight-foot opaque fence at the boundary between Locus and the Aiello Property was not supported by the evidence, and that portion of the decision would be remanded to the Board if this court had authority to do so. In all other respects, this court concluded the decision granting the 2009 Modification was not based on untenable grounds and was not unreasonable, arbitrary or capricious, and was within the Board’s reasonable discretion.

This court’s rulings are based on the following facts:

1. Plaintiff Aiello owns the residentially zoned real estate known and numbered as 515 and 519 Pond Street and “rear Regis Road” in Braintree, consisting of approximately fifteen acres (Aiello Property).

2. Defendant RMT, owner of Locus, has its principal place of business at 60 K Street, 2nd Floor in South Boston.

3. Defendant McCourt occupies commercial space at Locus, and also has an address at 60 K Street, 2nd Floor in South Boston.

4. Defendants Robert Harnais, Joseph Reynolds, Linda Cusick Woodman, James Eng, and Darryl Mikami were the duly appointed members of the Board at times relevant to this case. [Note 12] Board members are appointed by the Mayor of Braintree, pursuant to the Town’s Charter, Chapter 189 of the Acts of 2005.

5. Pond Street is a variable-width, two-lane road that provides access to the several commercial and industrial properties located along the street.

6. Locus is improved by a 62,270 square foot non-residential industrial garage facility and supporting offices (Structure). It has frontage on Pond Street and is approximately 200 feet wide. The majority of the front portion of Locus is paved. The rear portion of Locus, beyond the Structure and paved areas, is undeveloped and consists of wooded areas and wetlands.

7. The Aiello Property is in a Residential A and Watershed Protection Overlay District. It shares a common boundary with Locus, which is located in a Commercial district and, like the Aiello Property, the Watershed Protection Overlay district.

8. The property abutting Locus to the south is commercially zoned and fully developed. The abutting property to the west of Locus is residentially zoned and owned by the Town of Braintree. It is unimproved.

9. Rocsam Park Road lies immediately south of the property abutting Locus to the south, and runs perpendicular to Pond Street. Various commercial enterprises are located on Rocsam Park Road, including a bus company and contractors’ yard, both of which support significant outdoor activity and parking.

10. Because Locus shares a zoning district boundary with the residentially-zoned Aiello Property, Locus is subject to the buffer zone provision of the By-Laws (Buffer Zone By-law). See fact paragraphs 32–37.

11. Locus is a long, narrow, rectangular lot. The Structure lies very close to the southern property boundary. The eastern area of Locus, fronting Pond Street, is mostly paved with some landscaping. Locus is also paved along the northern side of the Structure and extending approximately 45 feet west of the rear of the Structure. See Chalk A, attached. Because the Structure is situated close to the southern property boundary, that area is not available for either parking or access.

Prior Ownership of Locus –Ainslie Corporation

12. Locus was previously owned by the Ainslie Corporation (Ainslie) or a related entity, Sophie Real Estate Trust, between March 5, 1959 and December 15, 2003. The original portion of the Structure on Locus was built pursuant to a 1959 building permit.

13. During Ainslie’s ownership of Locus, Ainslie worked on defense contracts for Raytheon, the United States Army, Navy, Air Force and other federal agencies, performing engineering and manufacturing. Ainslie also conducted machining, welding and assembly operations at Locus.

14. Additions to the Structure were permitted in 1961, 1963, 1985, and 1994 (pursuant to the 1994 Special Permit).

15. In the mid-eighties, while under Ainslie’s ownership, the Structure’s manufacturing area and office space area was expanded, with an 18,250 square foot addition.

16. A second expansion was constructed in 1994, when the manufacturing area was increased by an additional 8,000 square feet. Prior to the second expansion, Ainslie maintained two 20- foot storage containers for aluminum and steel raw materials outside the Structure.

17. In connection with its business, Ainslie received at Locus deliveries of aluminum, steel and other raw materials. Platform trucks also entered and exited Locus to reclaim waste and materials used as part of the manufacturing process. Trucks often drove the length of the northerly paved area of Locus to gain access to a rear loading area.

18. Ainslie used the paved areas of Locus for the parking of approximately 80 to 126 employee vehicles.

19. For approximately twenty years, Ainslie maintained a large crane on the roof of the Structure, extending 40 to 50 feet high. At an undetermined point prior to RMT’s acquisition of Locus, the crane was removed and replaced with a cell tower.

20. Ainslie leased space in the Structure to McCourt beginning in 2003.

Aiello Property

21. The Aiello Property comprises several occupied rental buildings owned by Aiello, including a single-family residence with frontage on Pond Street (519 Pond Street). To the west of the single-family residence is a building currently used as a catering business (Fasano’s Catering). Further west of Fasano’s Catering is a two-family residential building (515 Pond Street). Located behind the two-family residence is a two-story building consisting of a ground-level garage and a single-family apartment on the second level (the apartment uses 515 Pond Street as its address).

22. The single-family residence is located approximately eleven feet from the property line between Locus and the Aiello Property.

23. The Aiello Property is five feet higher in grade than Locus at several points along the common boundary, creating higher vantage points from which a person on the Aiello Property has a clear view of the Structure on Locus, and portions of some of the parking area. The farther away one stands from the common boundary line with Locus, the more Locus is visible, due to the existence of the eight foot fence at the boundary line pursuant to the 2009 Modification.

Relevant General By-Laws provisions

24. The Town of Braintree Zoning By-laws (By-laws), dated 2003, as amended through September 25, 2006, include a Table of Principal Uses. The Table specifically allows, among others, the following uses as of right within a Commercial District: Garage, Nonresidential; Contractor Yards; and Light Manufacturing.

25. Section 135-102 of the By-laws provides the following definitions:

a. Garage, Nonresidential – A building/structure of part thereof, other than a residential garage, for the storage of motor vehicles and in which vehicle maintenance activities may be carried on.

b. Contractor Yard – Premises used by a construction contractor for storage of equipment and supplies, fabrication of subassemblies, and parking of wheeled or tracked equipment. Said yards shall be fenced and secured.

c. Light Manufacturing – The fabrication, assembling, and finishing or packaging of products and not the processing or alteration of raw materials. Such use may include office space up to 25% of the gross floor area of a facility as long as such office use is directly in support of the manufacturing activity and is located on the same site.

26. Section 135-402 of the By-laws, titled “Continuation of nonconforming structures or uses,” states “[a]ny use of land, building or structure, existing and lawful at the time of the original adoption of the Town’s Zoning [By-law] or the adoption of subsequent amendments, which does not conform to the current requirements for the district in which such land, building or structure is situated may be continued except as hereinafter provided[.]”

27. Section 135-503(I) of the By-laws states the special permit granting authority [Note 13] “shall not render a decision on an application for a special permit until it has made its findings. Said findings shall include but not by limited to the following:

(1) The proposal for special permit shall be in harmony with and shall not derogate from the general purpose and intent of the [By-laws].

(2) There shall be adequate ingress and egress to the property and proposed structures with particular reference to automotive and pedestrian safety and convenience, off-street parking and loading, traffic flow and control, access in case of fire or catastrophe, and the capacity of public roads to support the added traffic safely.

(3) The proposed use shall not create any danger or pollution to public or private water facilities. The [Board] shall consider the adequacy of the methods of drainage at the proposed site and the public water and sewer systems serving the site. No excessive demand shall be imposed on the water system.

(4) The project shall conform to the signage, lighting and environmental standards set forth in this chapter. In particular, the [Board] shall review the project with regards to off-site impacts from glare, noise, vibration, smoke, heat and odor.

(5) The site plan shall provide for refuse collection or disposal and service areas, with particular reference to items in Paragraphs (2) and (3) above.

(6) The site plan shall provide for screening and buffering.

(7) The site plan shall provide yards and other open space as required by this chapter.

(8) The [Board] shall review for economic effect on and general compatibility and harmony with adjacent properties and other property in the district.

Relevant Watershed Protection District Provisions

28. Sections 135-609(B)(1) – (2) define the Watershed Protection District (WPD) as an overlay district that includes “all areas designated on the WPD Map for the Town of Braintree as most recently amended.” . . . “[the WPD] shall be superimposed on the other districts established by the By-laws, and uses not authorized in the underlying district are not authorized within the overlay district.”

29. Section 135-609(C)(6) lists the permitted uses within the WPD, including the “[r]epair, maintenance and reconstruction of structures and uses lawfully existing prior to the May 1982 adoption of this section.”

30. Under Section 135-609(E) the Board may allow development in a commercial district within the WPD, by special permit, provided that there is a minimum lot size of 43,560 square feet and that 40 percent open space per total area is retained.

31. Section 135-609(F) sets forth the procedure for issuance of a special permit, and further prescribes the [Board] may grant a special permit provided that it finds that the proposed use:

“(a) is in harmony with the purpose and intent of this bylaw and will promote the purpose of the WPD;

(b) is appropriate to the natural topography, soils and other characteristics of the site to be developed;

(c) will not, during construction or thereafter, have an adverse impact on any water body or watercourse in the district; and

(d) will not adversely affect an existing or potential water supply.”

Relevant Buffer Zone By-law Provisions

32. In 1984, a fifty-foot buffer zone requirement was added to the By-laws. The buffer zone serves as a transition area between boundaries in different zoning districts. Use of the buffer zone area is restricted. At the time this amendment was adopted, the area running along the northern side of the Structure – or what is today the current buffer zone area – was paved and used for parking and on-site vehicular circulation and deliveries in connection with the commercial uses on Locus.

33. On an undetermined date prior to 1994, the Town of Braintree amended the By-laws to increase the buffer zone to 100 feet between Commercial and Residential zoning districts. See By-laws § 135-702(B)(1). [Note 14]

34. Under Section 135-702(B)(2) a buffer zone “shall consist of a landscaped strip and may include fences, walls or berms which shall serve to provide an effective year-round visual screen at the time of installation.”

35. Section 135-702(B)(3) requires visual screening “comprised of a mixed planting of deciduous and coniferous trees and shrubs and walls or fences shall have a minimum overall height of six feet at the time of installation[.]” Section 135-702(B)(5)(a) further states that the variety of plant materials used for screening “shall be a mixture of deciduous and coniferous trees and shrubs for the screening to maintain its effectiveness throughout the winter months.”

36. Although use of the buffer zone is restricted, By-Laws § 135-702(B)(12) provides exceptions, allowed by special permit, “where, due to the size, shape or topography of a lot, the strict provisions of [the buffer zone provision] would reduce the usable area of a lot so as to preclude a reasonable use of the lot.” In such circumstances, the Board may allow modifications to the buffer zone “where the side of a building, a barrier, and/or the land between the building and the lot line has been specifically designed, through a combination of architectural and landscaping techniques, to minimize potential adverse impacts on abutting lots.”

37. An application for a special permit to modify a buffer zone must demonstrate “in detail” the problems imposed by the By-laws and “provide an effective alternative.” The Board may grant the special permit, subject to conditions that, as determined by the Board, assure adequate screening between particular uses. When determining what conditions, if any, may be appropriate, the Board “shall consider” the following factors: proximity to a residential development; topography of the site and the adjacent property; the nature of the use and activity on the site; the land use of adjacent property; the width and use of all abutting public rights-of-way; and the potential for impact of any nuisance activities such as noise, light or glare. See By-Laws § 135-702(B)(12).

1994 Zoning Relief Received By Ainslie Corporation

38. From late 1993 to early 1994, Ainslie and the Sophie Real Estate Trust sought a special permit from the Board to authorize construction of a 3,750 square foot rear addition (Rear Addition) to the Structure under the then-applicable provisions of the By-laws.

39. On January 25, 1994, the Braintree Zoning Board of Appeals (ZBA) granted a variance for relief from the 100 foot buffer zone requirement and a finding pursuant to G. L. c. 40A, § 6 for the alteration of the non-conforming structure and for the Rear Addition to be located 72 feet from the Commercial/Residential A zone line, or the line separating Locus from the Aiello Property (1994 Variance).

40. On March 29, 1994, the Board issued the 1994 Special Permit which authorized the construction of the Rear Addition, subject to 34 conditions and provisions.

a. Condition 18 provides “[t]his Special Permit authorizes the use of the addition solely for storage of materials associated with Ainslie’s uses (and or their future successor) and shall not be rented or subleased to another business without SPGA approval” (Condition 18).

b. Condition 18 restricted the use of the addition only to storage; no such restriction was placed on use of the rest of the Structure.

c. Condition 31 states “[t]here shall be no permanent outdoor storage of materials or equipment. This condition shall run with the title of the property” (Condition 31).

41. The 1994 Special Permit and Variance decisions were not appealed by Aiello or any other party.

2004 Zoning Relief

42. In December 2003, RMT purchased Locus from the Sophie Real Estate Trust.

43. In April 2004, the ZBA granted zoning relief allowing the alteration of the pre-existing Structure’s interior, specifically the installation of interior partitions and creation of five tenant spaces with overhead doors (2004 ZBA Decision). [Note 15] Pursuant to this decision, overhead doors were installed on the north side of the Structure, facing the Aiello Property.

2009 Special Permit Modification Application and Application Process

44. In December 2008, RMT/McCourt submitted to the Board an application for modification of the 1994 Special Permit (Modification Application).

45. In the Application, RMT/McCourt sought modification of two of the 34 conditions of the 1994 Special Permit, Conditions 18 and 31.

a. RMT/McCourt sought to change the restriction on use of the Rear Addition for storage (Condition 18) so that it could be used for the maintenance and repair of vehicles.

b. RMT/McCourt sought to change Condition 31 to allow for exterior permanent storage within a dedicated 2,040 square foot area on the westerly side of Locus (labeled on Chalk A as “Materials & Equipment Storage Area”)

c. RMT/McCourt also sought permission to adjust the striping of the existing paved parking areas in order to create spaces for the staging of vehicles and equipment prior to being maintained or serviced inside the Structure (labeled on Chalk A as “Small Equipment Trailer Parking Area” and “Oversized Wheel & Track Mounted Equipment Parking Area”). McCourt also proposed striping the existing fire lane, to indicate it as the fire lane and inform people there was no obstructions allowed.

46. Cubellis, Inc. (Cubellis) was the engineering firm hired by RMT/McCourt to develop a site plan and assist with the presentation of the Modification Application to the Board.

47. H. Thomas French and Douglas J. Hartnett were principals of the Land Development and Civil Engineering Practice Group at Cubellis at the time. Mr. Hartnett served as the Engineer of Record for the Modification Application, supervising the preparation of the engineering plans and reports produced by Cubellis.

48. On March 10, 2009, Melissa M. Santucci, [Note 16] the principal planner of the Town of Braintree, drafted an advisory staff report regarding the Modification Application for the Board (March 2009 Staff Report). This report analyzed RMT/McCourt’s Modification Application and set forth the staff’s opinions and recommendations.

a. In a section titled “Staff Comments on the Site Plan,” Ms. Santucci stated “the [Board] may consider additional screening if deemed necessary in accordance with [§ 135-702(B)].”

49. As part of the drafting process for reports to the Board, Ms. Santucci is tasked with circulating proposed plans to various town departments for review and comments.

50. On February 20, 2009, Ms. Santucci received a memo from Deputy Fire Chief John Donahue stating “[t]he Fire Department has no objections as long as proper fire lanes are maintained” (“Deputy Chief Donahue Memo”).

51. The Board conducted public hearings on McCourt’s application on March 17; April 6; May 19; and September 15, 2009. Aiello, by himself or through his representative, participated in these hearings by presenting information to the Board orally and through the submission of documents and materials.

a. At the first public hearing on March 17, 2009, RMT/McCourt provided copies of a November 2008 revised plan and its Modification Application.

b. Mr. Aiello, through counsel, expressed objections to the Modification Application and provided additional materials, which the Board agreed to discuss at a subsequent hearing.

c. At the next session of the public hearing on April 6, 2009, RMT/McCourt presented changes on its plans made to address concerns about its application, and agreed to comply with state vehicle idling regulations, to prohibit outdoor power washing, and to limit onsite dumpster usage to RMT/McCourt business only. The Board asked RMT/McCourt to provide written responses to questions raised by Aiello for discussion at the next public hearing. This written response was submitted to the Board on May 6, 2009.

d. At the May 19, 2009 hearing RMT/McCourt described the changes made to its Modification Application, such as construction of a berm at the rear of Locus to retain excess runoff from the parking area, new signage and landscaping, and turning plans for vehicles entering Locus.

Fire Lane

52. Prior to the 2009 Modification, Locus had no striped fire lane marked on the pavement, and vehicles used the unmarked travel lane located between the Structure and the northerly boundary line, along which there was parking. The Modification Application proposed striping along the unmarked travel lane, officially designating it as the fire lane, consistent with its use as such. See Chalk A.

53. It was at the May 19, 2009 public hearing that an issue arose concerning fire truck access to Locus, and RMT/McCourt referenced the Deputy Chief Donahue Memo: that “the Fire Department has no objections as long as proper fire lanes are maintained.”

54. On May 27, 2009, Fire Chief Kenneth McHugh sent Ms. Santucci a memo stating:

“[i]n accordance with [527 Code Mass. Regs. § 10.03 (2014)] I am requiring that this be adhered to and that the fire dept. have access to two sides of the building. The front of the building will be one side and the right side of the building will be the second side. I’m requiring that [527 Code Mass. Regs. § 10.03(10)] be enforced so that the fire dept. has accessibility to the property” (Chief McHugh Memo).

55. As of the trial date, 527 Code Mass. Regs. § 10.03(10) (2014), [Note 17] titled “Fire Lanes,” provided:

(a) Designation. The head of the fire department shall require and designate public or private fire lanes as deemed necessary for the efficient and effective use of fire apparatus. Fire lanes shall have a minimum width of 18 [feet].

(b) Obstructions. Designated fire lanes shall be maintained free of obstructions and vehicles and marked in an approved manner.

(c) Maintenance. All designed fire lane signs or markings shall be maintained in a clean and legible condition at all times and replaced when necessary to insure adequate visibility.

56. After receiving the Chief McHugh Memo, Ms. Santucci met with Chief McHugh. At this meeting, Chief McHugh stated he wanted the fire lane on Locus to be located immediately adjacent to the north side of the Structure.

57. Chief McHugh never submitted additional written materials to the Board amplifying or detailing his position on the location of the proposed fire lane.

58. During her 11 years as Principal Planner, Ms. Santucci always received comments from the Deputy Fire Chief. She never received comments from both the Fire Chief and Deputy Chief.

59. Robert Harnais, Chairman of the Planning Board, spoke with Chief McHugh during a chance encounter and inquired why Chief McHugh wanted the fire lane adjacent to the building. [Note 18] Without quoting directly what Chief McHugh responded, Mr. Harnais stated that his response indicated the Chief harbored some personal animosity towards RMT/McCourt and held a negative opinion of an unnamed McCourt employee. Mr. Harnais concluded that there was no other reason behind the statement the Chief had made to Ms. Santucci.

60. On September 4, 2009, Ms. Santucci requested an opinion from Town Counsel, Carolyn Murray, on the following three questions:

“1. Is the requirement to remove these spaces and provide a Fire Lane even subject [to review] based on the limited scope of the modification request?

2. Does the Applicant have the right to maintain parking spaces that have been in existence at the Approval of the Town since 1984?

3. What ramifications would occur to the [Board] if a Condition was imposed that required the Applicant to provide a fire lane that precluded the Applicant from maintaining pre-existing parking along the North Side of the building?”

61. The Chief McHugh Memo did not explicitly state that the fire lane must be located immediately adjacent to the north side of the Structure, where parking is currently allowed.

62. 527 Code Mass. Regs. § 10.03 does not require that a fire lane be immediately adjacent to a building. It states that a fire lane must be at least 18 feet wide, free of obstructions and vehicles, and properly marked.

63. The current Fire Chief has issued no orders or requests regarding the placement of the fire lane at Locus.

64. Locus currently has at least two standpipe connections and two fire hydrants located on the property. Fire hydrants are also located along Pond Street at various points.

Stormwater Operation and Maintenance Plan

65. The existing drainage system at Locus is an older system, dating from approximately the 1950s to 1960s. It has two branches. One branch is located in the parking area on the north side of Locus, with a series of catch basins connected to sub-surface piping running east to west and flowing into a wetland area located west of the paved area of the site. The second branch is located on the south side of Locus, running east to west between the Structure and the southern property boundary and flowing into the same wetland area as the first branch.

66. At the time of the Modification Application, no berm existed on the edge of the pavement on the west side of Locus, allowing excess drainage to flow unimpeded into the storm drains and wetlands area.

67. On September 14, 2009, RMT/McCourt submitted to the Board a Stormwater Operation and Maintenance Plan (Stormwater Plan). The Stormwater Plan aimed to minimize the volume of runoff as well as the contact of storm water with potential pollutants. The Stormwater Plan provided guidelines for McCourt to maintain Ultra-Drain Guard inserts, manage snow removal, and alleviate sediment dispersion from snow. It also included a “sweeping plan” to further remove sediment from the parking areas on Locus.

68. The Stormwater Plan prohibits the maintenance of vehicles and power washing of vehicles outside the Structure in order to allow residue from equipment and machinery to be captured by a floor drain system internal to the Structure that is routed to an oil and gas trap.

Final Session of the Public Hearing – September 15, 2009

69. On September 15, 2009, RMT/McCourt presented a revised plan, which included information on the catch basin inserts; calculations of a 25-year storm event; a snow storage plan; and a turn radius plan. The revised plan included, for the first time, an 8-foot high opaque vinyl fence running along the northern property line; installation of catch basin inserts combined with absorbent “pillows” to further absorb grease and oil residue; [Note 19] a new location for a snow storage area, which required the elimination of six parking spaces to accommodate the new area. As shown on the revised plan, the applicant had also removed two parking spaces at the entry to Locus to increase the turn radius available for large vehicles. RMT/McCourt also presented information on the proposed three-inch berm to be created in the rear paved area along the westerly boundary line that would reduce uncontrolled and untreated runoff into the wetlands.

70. At the September 15, 2009 public hearing, the Board solicited comments. Mr. Aiello, through his representative, stated his opposition to the revised plan. Specifically, Mr. Aiello raised the following questions:

a. Whether the revised plan addressed the Chief McHugh Memo;

b. Whether the Fire Department had sufficient access to the rear of the Structure;

c. Whether sufficient measures had been taken to address noise and exterior pressure washing.

71. The Board also raised several issues about the revised plan. The Board suggested that the berm be designed to contain runoff from a 100-year storm. In response, RMT/McCourt agreed to provide a 4-inch berm. [Note 20]

72. After a motion duly made and seconded, a super majority of the Board voted to approve the Modification Application with the Draft Conditions, as amended.

2009 Special Permit Modification Decision

73. On September 16, 2009, the Board issued the 2009 Modification, with findings and 34 conditions. See Exhibit 3 (2009 Modification).

74. The Board repealed Condition 18 of the 1994 Special Permit and stated that RMT/McCourt "may use the entire building for uses allowed by right within the commercial zoning district" but prohibited RMT/McCourt from using the exterior of the building for vehicle repair or maintenance. In addition the Board prohibited RMT/McCourt from washing equipment or vehicles outside of the Structure. The Board also repealed Condition 31 of the 1994 Special Permit and allowed RMT/McCourt to store materials and equipment within specifically defined areas depicted on the site plan. See Chalk A; see also Exhibit 3.

75. The 2009 Modification requires an 18-foot wide fire lane striped the full length of the north side of the Structure, in the middle of the drive aisle, in substantially the same location as the de facto fire lane that has been in use, between the parking spaces alongside the Structure and those along the northern boundary line of Locus. The fire lane was also designated in the front of the Structure between it and the landscaped island at Pond Street. (As shown on Chalk A, the fire lane is diagonally striped and labeled “No Parking Fire Lane.”)

76. After the 2009 Modification was approved, consistent with its terms, McCourt installed the 8-foot tall opaque vinyl fence along the northerly side of Locus, directly abutting the Aiello Property, for the purpose of providing a visual barrier between Locus and the Aiello Property. RMT/McCourt also planted some trees in a couple of locations on Locus.

77. There are approximately ten feet on Locus between the edge of the parking area and the boundary line with the Aiello Property.

78. While the current topography of that space is not suitable for additional trees and plantings due to its sloping nature, the space does provide sufficient room for some type of additional screening, such as a concrete masonry unit (CMU) or other type of retaining walls in which planting of trees could occur, which would provide more screening that the fence does and which would comply with the By-laws.

79. The final plan submitted and approved by the Board (see Chalk A) shows 119 parking spaces, not including the five oversized parking spaces. The minimum number of required spaces is 103. Additional parking spaces could be eliminated to provide further screening.

Alleged Conflicts Of Interest Among Planning Board Members

80. Board member James Eng was employed by the Massachusetts Bay Transportation Authority (“T”) for 25 years and retired in October 2005 as a construction project director.

81. Mr. Eng worked as a consultant for the “T” for approximately four and a half years after his retirement. His work as a consultant ended in April 2009.

82. In or around 1985, Mr. Eng worked as a “T” resident engineer and as part of the field staff on the “T”’s Porter Square project, responsible for reviewing and approving the work of the general contractor, which was McCourt Construction.

83. At an undetermined time after the Porter Square project was completed, Mr. Eng was promoted to the position of deputy director and later a director. His responsibilities included supervising the “T”’s Huntington Ave. project. McCourt Construction served as general contractor for this project. Mr. Eng supervised and authorized payments to McCourt Construction under the contract.

84. The Huntington Ave. project started in 2000, and was substantially completed in 2006. Paperwork officially closed on the project in 2011. Mr. Eng characterized the closing paperwork as “a few punch lists on a job that [McCourt] had to follow up on” and other “warranty” and “follow-up” paperwork, but stated that he had left the “T” before the project officially closed.

85. Mr. Eng estimated the value of McCourt’s contract for the Huntington Avenue project at twenty million dollars. The “T” usually kept a five percent retainage pending a project’s official “close out.”

86. Mr. Eng joined the Board in early 2008. Prior to joining the Board, he served on the Town of Braintree Conservation Commission. As a member of the Conservation Commission, on September 22, 2005, Mr. Eng had recused himself from one proceeding involving McCourt Construction because at that time he was “more actively involved” with the supervision of McCourt’s contract with the “T”.

87. At the time of the Board’s vote on the Modification Application on September 15, 2009, Mr. Eng was not an employee or a consultant to the “T”.

88. Mr. Eng has no social, personal or private business relationships with either Ryan McCourt or Richard McCourt.

* * * * * *

I. Plaintiff’s Standing

Standing is a jurisdictional requirement under G. L. c. 40A, § 17. Only a “person aggrieved” may challenge a decision of a zoning board of appeals. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996), citing Watros v. Greater Lynn Mental Health and Retardation Ass’n., Inc., 421 Mass. 106 , 107 (1995). Although the term “person aggrieved” is not to be narrowly construed, the party’s injury must be more than speculative, and must be particularized and distinct from general community interests. Marashlian, 421 Mass. at 721; Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). Additionally, the alleged aggrievement must fall within “a specific interest that the applicable zoning statute, ordinance or bylaw at issue is intended to protect.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011); Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006), citing Circle Lounge & Grille, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 431 (1949).

Abutting landowners are “parties in interest” to zoning matters under G. L. c. 40A, § 11, and, as such, are presumed to be aggrieved by a decision of a zoning board for purposes of G. L. c. 40A, § 17. See Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 127 (1999); Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1956). Therefore, as an abutter, Aiello is entitled to a presumption of standing. Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 257 (2003).

Although abutters enjoy an initial presumption of standing, this presumption falls away if adequately challenged. Standerwick, 447 Mass. at 32–33. A defendant may challenge a plaintiff’s presumed standing in two ways. 81 Spooner Road, 461 Mass. at 700. First, the defendant may show that the plaintiff’s allegations of harm are not interests protected by G. L. c. 40A or local zoning by-laws. An abutter has “no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances or [by-laws] do not offer protection from the alleged harm in the first instance.” Id. at 702; Standerwick, 447 Mass. at 35. Second, if a plaintiff’s alleged aggrievement is a protected interest under the statute or local by-laws, the defendant may produce credible evidence refuting the presumed injury, demonstrating that it is either unfounded or de minimis. Standerwick, 447 Mass. at 35-36. A defendant may use expert testimony or plaintiff’s own testimony and discovery responses for rebuttal purposes. 81 Spooner Road, LLC, 461 Mass. at 702.

Once rebutted, the issue of standing is then “decided on the basis of the evidence with no benefit to the plaintiff from the presumption.” Standerwick, 447 Mass. at 33, citing Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). The plaintiff must establish with direct facts, and not by speculation or opinion, that his or her injury is special and different from the concerns of the rest of the community. Kenner, 459 Mass. at 118–19; Standerwick, 447 Mass. at 33. The decision of whether a plaintiff has sufficiently proven standing is a question of fact reserved for the judge. Marashlian, 421 Mass. at 721; Butler, 63 Mass. App. Ct. at 440. However, it is not required that the judge, as fact finder, ultimately finds the plaintiff’s allegations meritorious. Id. Standing is only the “gateway through which one must pass en route to an inquiry on the merits.” Butler, 63 Mass. App. Ct. at 440-41. A plaintiff need not prove by a preponderance of the evidence that is claim of a particularized injury is true, but must only “put forth credible evidence to substantiate his allegations.” Butler, 63 Mass. App. Ct. at 440–41; Marashlian, 421 Mass. at 721.

In this case, Aiello claims his presumptive standing has not been sufficiently challenged, but if it has been, he has provided sufficient credible evidence to re-establish standing. Defendants argue that Aiello failed to re-establish standing in the face of Defendants’ significant credible evidentiary challenge to Plaintiff’s presumption of standing. This court agrees with Defendants. Further, to the extent Aiello has alleged harm to protected interests supported by credible evidence, such harm is de minimis.

a. The 2009 Modification Does Not Diminish the Value of the Aiello Property by Harming Aiello’s Potential Future Development Plans

Diminution in value provides a sufficient basis for standing only when it is “derivative of or related to cognizable interests protected by the applicable zoning scheme.” Kenner, 459 at 123. If the alleged diminution is not tied to a specific cognizable injury, it cannot provide an independent basis for standing. Aiello claims that RMT/McCourt’s current and proposed use of Locus has negatively affected the development potential and value of his land as a single-family subdivision, but he failed to both establish the alleged diminution in value beyond speculation and to tie any alleged harm to an injury caused by the 2009 Modification. The great weight of the evidence in fact proved otherwise. Accordingly, this court finds Aiello failed to provide sufficient credible evidence establishing a particularized injury.

Aiello’s claims of diminution of value rested on allegations of harm from fire hazard, visual impact, noise and odors, and potential contamination. Aiello is not required to meet his burden for more than one claim of a particularized injury in order to establish standing. Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 523 n.13 (2009); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 n.7 (1986). If he successfully established aggrievement under any provision of the By-laws, it would be sufficient to find standing and allow Mr. Aiello to challenge the 2009 Modification.

This court finds that Defendants rebutted Aiello’s allegations of harm with respect to all but alleged harm from visual impact. To the extent Aiello established any particularized harm with respect to visual impact, it was de minimis, and therefore does not confer standing. Mr. Aiello testified that, prior to RMT/McCourt’s use of Locus, he had considered subdividing the Aiello Property for residential use. In preparation, he installed a water line, consulted with an engineer, and purchased an abutting lot at 62 Regis Road to ensure access. The last of his preparations for potential subdivision took place several years ago, perhaps around 2007. Mr. Aiello testified he consulted with the engineer in the late 1980s, installed the water line just prior to McCourt’s arrival in 2003, and purchased the 62 Regis Road lot “seven to eight years ago.”

In support of Aiello’s allegations of harm from the 2009 Modification, Aiello’s expert, Thomas C. Houston, prepared sketch plans of a potential subdivision of the Aiello Property and presented the details of the plans during his testimony. These plans were preliminary, prepared for the purpose of Mr. Houston’s testimony regarding potential development. They have neither been approved by Mr. Aiello nor presented to the Planning Board for review under the subdivision control law. Notwithstanding the plans detailed by Mr. Houston, this court finds that Aiello’s decision to postpone or abandon development plans for the Aiello Property occurred well before the 2009 Modification. In addition, Aiello’s claims of aggrievement due to diminution in value or damage to potential future development remain too speculative and unsupported to confer standing, even if the alleged harms had been linked to the specific ways in which the 2009 Modification changed the current use of Locus. [Note 21]

Even if Aiello had successfully tied diminution in value to a protected interest harmed by the terms of the 2009 Modification, this court nonetheless would conclude that RMT/McCourt rebutted such claims largely through the expert testimony of Donald P. Bouchard, CRE, MAI. Mr. Bouchard credibly testified that the negative impact on the Aiello Property due to its adjacency to Locus, used as a commercial/industrial site for many decades, existed prior to the 2009 Modification, and that issues of property value and marketability remained the same both before and after the 2009 Modification. Additionally, as more fully described below, this court finds that several of the terms and conditions of the 2009 Modification will improve the effect use of Locus has on the Aiello Property.

b. The Location of the Fire Lane on the 2009 Modification Plan Does Not Increase the Risk of Fire nor Diminish the Value of the Aiello Property

Aiello alleges that the designated location of the fire lane under the 2009 Modification creates a risk of fire damage to his property. Generally, fire safety and compliance with state fire regulations are not protected interests under zoning laws. See Rinaldi v. Bd. of Appeals of Boston, 50 Mass. App. Ct. 657 , 660 (2001). Therefore, pursuant to the November 7, 2013 Order, Aiello was limited at trial to presenting evidence on the “sufficiency” of the fire lane as it related to alleged harm due to the fire lane’s proposed location under the 2009 Modification. Relying mainly on the expert testimony of his fire safety consultant, Aiello alleged that the placement of the fire lane in the travel lane, rather than directly adjacent to the Structure, impedes the fire department’s ability to respond to an emergency and increases the risk of a fire spreading to his property. [Note 22]

The court finds Aiello’s allegation of harm due to the designated location of the fire lane remains far too speculative to confer standing. Mr. Hubler’s pre-filed direct testimony provides few details on how the fire lane location specifically puts the Aiello Property at risk of fire. Mr. Hubler acknowledged he spent little time at Locus and never entered the Structure itself during his investigation. His analysis of Locus consisted of observing the site and its surrounding area from his vehicle, as well as viewing photographs and researching Locus’ permitting history. Mr. Hubler was unable to articulate how the location of the fire lane under the 2009 Modification increases the danger to the Aiello Property. [Note 23] The allegations of harm due to the fire lane placement fail to demonstrate how its placement specifically harms the Aiello Property, particularly in view of the fact that prior to the 2009 Modification, the de facto fire lane was located in the same place, but was not striped or visibly designated as the fire lane.

c. The Minimal Changes to the Use of the Buffer Zone Authorized Under The 2009 Modification Do Not Cause More than De Minimis Harm Due To Visual Impact to the Aiello Property

Aiello alleges harm from proposed use of the buffer zone under the 2009 Modification. By-laws §§ 135-702(B)(1)(a) and 135-702(B)(11) provide for a 100-foot buffer zone between a commercial and residential district, in which no structures may be erected and in which use is restricted to necessary driveways and passive recreation. Due to the characteristics of its lot, including its long, narrow shape, the topography, and the substantial wetland area in the rear of Locus, RMT/McCourt was granted an exception to these restrictions pursuant to By-laws § 135- 702(B)(12), and allowed to use specific areas of the buffer zone for parking and exterior storage. [Note 24] The Board imposed two requirements to mitigate the effect of such use: an eight foot opaque fence, replacing a chain link fence along the Aiello boundary line, and the planting of trees in certain locations. An eight-foot tall opaque fence has been installed by RMT/McCourt and was in place when the court took its view of the properties. Aiello’s claim of aggrievement stems partly from the Buffer Zone By-law’s screening requirement, which he argues is inadequate under the 2009 Modification and as implemented by RMT/McCourt.

Defendants argue that Aiello’s alleged aggrievement due to visual impact constitutes only a “general community concern” insufficient to confer standing. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). Defendants further claim visual impact is not an interest protected under the By-laws. See Kenner, 459 Mass. at 120. This court disagrees with Defendants, as the Aiello Property is the abutting property adjacent to the buffer zone and the By-laws read in their entirety do instruct the Board to consider visual impact on neighboring properties, in connection with the permitting process. That said, this court also finds that Aiello has failed to overcome Defendants’ challenge to Aiello’s allegation of harm on this point in that the difference in visual impact before and after the 2009 Modification is negligible, and therefore, the harm, if any, is de minimis. [Note 25]

While the By-Laws do not expressly state that views or visual impact are a protected interest, the Buffer Zone By-law states several times that its purpose is to provide “effective” visual screening. See By-laws §§ 135-702(B)(2); 135-702(B)(5)(a); 135-702(B)(9)(a). When considering an exception to the Buffer Zone By-law, the Board must consider several different factors, such as the site’s proximity to residential development and the potential for the impact of any nuisance activities on abutting properties. By-laws §§ 135-702(B)(12)(a)-(f). Additionally, By-laws § 135-801 addresses off-street parking and loading, and expressly states its purpose is “[p]rotecting abutting residential uses from the adverse impact of vehicular uses.” This court interprets the various provisions of the By-laws, read together, to instruct that visual impact is an interest protected under the By-laws which may be used as a ground to support standing.

d. The Minimal Changes to the Use of the Buffer Zone Authorized Under The 2009 Modification Will Not Increase Noise and Odors Affecting the Aiello Property

Aiello also broadly alleges that noise and odors emanating from Locus will increase as a result of vehicles and equipment being stored closer to the property line within the buffer zone. Defendants successfully rebutted Aiello’s allegations regarding these alleged harms through Aiello’s own testimony and testimony and documentary evidence submitted at trial detailing the use of Locus. Noise and odors are the result of the uses allowed at Locus for decades either by right or specifically allowed pursuant to decisions of the Board, including the 1994 Special Permit. Aiello was unable to credibly distinguish between harms that will flow from the changes allowed by the 2009 Modification from uses allowed prior to its issuance. He testified that the noise and odors instead were present since at least 2003, when McCourt first moved onto Locus. Testimony at trial, confirmed at the view, also established that there is significant noise coming from both the traffic on Pond Street and the use of the commercial sites other than (and south of) Locus which also were audible from the Aiello Property.

As Aiello could not credibly link his concern regarding injuries to the 2009 Modification, these alleged harms cannot form the basis for his standing to appeal it. Importantly, the Board imposed several conditions on the 2009 Modification in an effort to mitigate noise, including a requirement that 1) overhead garage doors facing the Aiello Property must be closed when truck repair and maintenance work is conducted inside the Structure, and 2) washing of vehicles outside the Structure is prohibited. On balance, given the conditions imposed by the Board that were not previously in effect, this court finds that the aggregate noise and odors should be decreased from the pre-modification uses allowed on Locus. [Note 26]

II. The Merits of the 2009 Modification

While this court has found after trial that Aiello does not have standing despite his presumption of standing as the owner of property abutting Locus, this court sets forth below its findings on the merits of the 40A appeal. While a finding of no standing means that this court does not have jurisdiction to hear Aiello’s appeal, under the circumstances of this particular case, this court believes it is in the interest of all parties and judicial economy to set forth this court’s findings and rulings on the 40A appeal portion of this case for two reasons. First, this case has been bifurcated, with the question of whether the count brought pursuant to Art. 29 will be tried dependent on the outcome of the count brought under G. L. c. 40A, §17. Second, this case has been pending for many years, with proceedings in both the Land Court and the Appeals Court, and has been fully tried on both the issue of standing and the merits of the 40A appeal. While it is not always the case in zoning appeals, in this case resolution of the factual issues that informed this court’s rulings on standing are the same factual issues which inform the merits of this de novo appeal. In the event the Appeals Court disagrees with the ruling that Aiello does not have standing, that court should have the benefit of this court’s findings on the merits as well this court’s view as to whether the findings support the Board’s decision so as not to prolong this dispute further.

III. Standard of Review Under G. L. c. 40A, § 17

In a G. L. c. 40A, § 17 appeal, the reviewing court employs a combination of de novo review of the evidence to establish the relevant facts and a deferential posture toward the board’s action in light of the facts found by the court, so long as the board has reasonably exercised its discretion. A board’s decision will not be overturned unless it is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003), citing MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970).

The court must give “a measure of deference” to a local board’s interpretation of its own zoning by-laws and ordinances, APT Asset Mgmt., Inc. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000), due to the local board’s special and unique knowledge of the “history and purpose” of the town’s by-laws. Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009), citing Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). The appropriate deference to a board's construction is not, however, without limit. See, e.g., Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990). An incorrect interpretation of a zoning provision by a local board or building inspector, for example, is not entitled to deference. Shirley Wayside Ltd. P’ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012).

When an appeal is from a decision granting a special permit, “not only must a board of appeals make an affirmative finding as to the existence of each condition of the statute or by-law required for the granting of the variance or special permit, but the judge in order to affirm the board's decision on appeal must find independently that each of those conditions is met.” Id. at 311. In considering an amendment or modification to a special permit, a board must exercise its reasonable discretion in the same manner prescribed in connection with an application for the issuance of a special permit. See Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 231 (2005); Eastern Mgmt. & Dev., LLC v. Padula, et al., 22 LCR 83 (2014) (Cutler, C.J.).

A decision based “on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws” is one based on legally untenable grounds. Britton, 59 Mass. App. Ct. at 73. If a board’s decision is found to be legally tenable, the court’s next inquiry is whether any rational view of the facts supports the board’s ultimate conclusions. Sedelle v. Zoning Bd. of Appeals of Carver, 74 Mass. App. Ct. 450 , 453 (2009).

Aiello first argues that the Board’s failure to make certain special permit findings pursuant to By-laws § 135-503(I)(1)-(8) [Note 27] renders the decision legally untenable. He also argues several aspects of the Board’s decision were both legally untenable and arbitrary and capricious, specifically the Board’s determination regarding allowed uses and effective screening in the buffer zone pursuant to By-laws § 135-702(B), [Note 28] and the manner in which the Board received and implemented input from the Braintree Fire Department relating to the proposed placement of the fire lane. Finally, Aiello argues that the Board’s determinations as to the effects of noise, odor and environmental impact, to the extent they are legally tenable, were arbitrary and capricious.

IV. With the Exception of the Board’s Findings as to Screening Required Under the Buffer Zone By-law, the 2009 Modification was not Untenable, nor Unreasonable, Arbitrary or Capricious

a. The Board’s Decision Did Not Lack Sufficient Findings Required Under By-laws § 135-503(I)(1)-(8)

Section 135-503 of the By-laws provides a list of findings required before the Board may issue a special permit. Aiello contends the Board erred in omitting these specific findings when approving the 2009 Modification. [Note 29] Aiello further argues that the absence of a finding that the special permit is “in harmony with the general purpose and intent of the [By-laws]” required under G. L. c. 40A, § 9 is enough to annul the Board’s decision. See Vazza Properties, Inc., 1 Mass. App. Ct. at 311. The 2009 Modification contains two sets of specific findings under the sections for the WPD By-Law and the Buffer Zone By-Law. It did not contain separate findings for the issuance of a special permit under By-laws § 135-503. [Note 30]

However, the court need not determine whether specific findings under By-laws § 135- 503 were required by the Board, as the record demonstrates each condition under all applicable provisions has been independently addressed in the 2009 Modification. The conditions attached to the decision indicate the Board explicitly or implicitly considered the proposed modifications in relation to the purpose and intent of the By-laws. Implied findings showing the criteria and evidence considered by the Board are sufficient. See Pierce v. Bd. of Appeals of Carver, 2 Mass. App. Ct. 5 , 6-7 (1974) (stating a board’s failure to make a “finding, express or implied” that was “essential to the validity of the board’s decision,” necessitated an annulment of the decision). Additionally, detailed conditions imposed by a board “do double duty” as findings that the special permit “might be exercised in harmony with the [zoning by-law’s] purpose and intent,” as statutorily required. Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 621 (1986).

b. The Board’s Determinations as to Buffer Zone Uses and Effective Screening are Legally Untenable and the Screening Provided by the Opaque Fencing Along the Aiello Property is Not Compliant with the By-laws

The 2009 Modification issued by the Board states that the current uses of Locus as a “contractor’s yard, vehicle maintenance, non-residential garage and light manufacturing with accessory [offices] by various tenants” are “permitted by right.” Aiello counters the Board erred in characterizing those uses as “by right,” because they are prohibited uses in a buffer zone. Aiello further argues the 2009 Modification authorizes new and more intensive uses of Locus which were never authorized by prior zoning relief.

The Board found that the outdoor area of Locus located within the buffer zone was, at the time of the Modification Application, used for parking and vehicular circulation. It further found that these uses have been in place on Locus since the 1980’s (when Ainslie used the area for parking and vehicular circulation). The Structure, including the Rear Addition, was in place when the Buffer Zone By-law was adopted in 1984, with the buffer zone later increased to the current 100 foot requirement. Under the 2009 Modification, RMT/McCourt sought to remove the conditions in the 1994 Special Permit that prohibited 1) permanent outdoor storage of materials or equipment, and 2) use of the Rear Addition for storage only. The Board approved these changes, taking the position that RMT/McCourt’s continued use of the Structure (for any purpose allowed by right in the underlying commercial district) and use of the paved area already used for parking and circulation were both grandfathered preexisting nonconforming uses, exempt from the Buffer Zone By-law, and neither modification constituted a change in use of Locus. [Note 31]

Aiello alleges the proposed changes constitute a substantial alteration of the preexisting use, and that such alteration is only allowed if the alteration or change itself complies with zoning by-laws, and if the alteration is found to be not substantially more detrimental to the neighborhood than the pre-existing nonconforming structure or use. See Rockwood v. Snow Inn Corp., 409 Mass. 361 , 364 (1991). For example, Aiello argues that exterior storage of vehicles and equipment substantially differs from vehicular parking. Braintree’s Principal Planner testified that in her view there was little distinction between the parking of vehicles and parked vehicles and equipment. [Note 32] Given Ms. Santucci-Rozzi’s testimony and the Board’s detailed decision, this court infers that the Board agreed that there is no material distinction between allowing exterior parking of vehicles for daily use and the exterior parking or “storage” of construction vehicles awaiting maintenance inside the Structure. Thus, the Board proceeded to consider the modification request as one that did not present any change in use. This court does not consider such an analysis untenable or unreasonable. Nonetheless, any alterations to the 1994 Special Permit within the buffer zone trigger the Board’s review under the provisions of the By-laws that circumscribe that review. These provisions include § 135-702 in its entirety. The exterior ‘Parking Areas for Equipment’ shown on the Modification Plan (also shown on Chalk A) trigger the need for the Board’s review of the Plan under the landscaping and screening provisions of the Buffer Zone By-law, even if those parking areas do not constitute a change of use.

Aiello argues that the screening required under the 2009 Modification is inadequate and fails to meet the effective screening requirements under the By-laws. Under By-laws § 135- 702(B)(1)(c),in a commercial district, “the required [buffer zones] shall not be used for parking or for any other accessory structure or use except for access.” Acting under Section (B)(12), the Board allowed an exception to this provision, obtainable by special permit, where, “due to the size, shape or topography of a lot,” this restriction would reduce the usable area of a lot so as to preclude its reasonable use. Exceptions under Section (B)(12) are limited to situations in which the lot line at issue has been “specifically designed, through a combination of architectural and landscaping techniques, to minimize potential adverse impacts on abutting lots.” Under the general buffer zone provisions, walls, fences or berms are allowed within the buffer zone, to supplement the required planting providing an effective visual screen[.] The required plantings include a mix of “deciduous and coniferous trees and shrubs so that the screening remains effective in winter.” By-laws §§135-702(B) (2) and (5).

The Board required Defendants to install an eight-foot high opaque vinyl fence running along the northern boundary line in place of the six-foot chain link fence that had been in that location for many years. The fence was a replacement for trees, not something the Board required in addition to them. Despite the eight-foot fence, the higher elevation of the Aiello Property provides visibility of the parking area and the Structure on Locus from several high vantage points; essentially, an individual standing on much of the Aiello Property has a view over the fence. The current fencing provides effective screening of the parking areas of Locus only for people standing within a few yards of it on the Aiello side. Defendants argue an opaque fence was selected as opposed to plantings due to the difficulty of growing trees and shrubs in a narrow, sloped area on Locus.

The de novo evidence indicated, however, that there likely is an effective method of providing adequate screening within the ten-foot area on Locus between the edge of the parking area and the Aiello Property by constructing a wall which could support plantings for additional height. This court also found that installing such a wall might be possible without eliminating parking spaces needed to fulfill the parking requirements for the uses on Locus, although the current parking configuration would need some revision. While the opaque fencing required by the Board is an improvement over the chain link fence that predated it, it is not sufficient under the By-laws absent a showing that requiring compliance with the By-laws “would reduce the usable area of a lot so as to preclude a reasonable use of the lot.” Based on the testimony of Thomas C. Houston, Plaintiff’s expert, this court has concluded that there are methods through which RMT/McCourt could provide screening with vegetation and/or a wall that functions as a raised bed for plantings which would provide screening compliant with the By-laws without “reduc[ing] the usable area of [Locus] so as to preclude a reasonable use of the lot.”

If this court had found that Mr. Aiello had standing, allowing the court to reach the merits, this court would have remanded the buffer zone issue to the Board for further consideration of screening based on the facts found at trial. [Note 33]

c. The Board’s Approval of the Existing Location of the Fire Lane and Requirement That it be Striped and Designated as Such was Reasonable

Prior to the 2009 Modification, the travel lane running between the Structure and parking spaces along the Aiello boundary was used as the fire lane on Locus although it was neither striped nor marked as such. The 2009 Modification called for this travel lane to be officially marked and striped as the fire lane for its length, as depicted on Chalk A. As part of its special permit review process, the Board solicits comments and recommendations from various town departments, as it did in connection with the Modification Application. Ms. Santucci-Rozzi, as Principal Planner, requested these comments in early 2009, receiving memoranda from the Braintree Police, the Department of Municipal Licenses and Inspectors, and the Building Inspector, among others. On February 20, 2009, she received a memo from Deputy Fire Chief John Donahue stating “[t]he Fire Department has no objections as long as proper fire lanes are maintained.” She interpreted that to signify that the fire lane already in existence, but not yet striped, could be maintained in its present location.

Several months later, on May 27, 2009, she received an unsolicited second memorandum, this time from the Fire Chief, enclosing a copy of 527 Code Mass. Regs. § 10.03 (2014) (Fire Regulations). He stated that the Fire Regulations must be adhered to, allowing the Fire Department access to two sides of the Structure. The Chief designated the front (eastern) and right (northern) sides of the Structure as the two sides for access purposes. After submitting this in writing, the Chief orally clarified in a later conversation with Ms. Santucci-Rozzi that he wanted the fire lane located directly adjacent to the Structure on the northern side. This placement would have required the removal of many existing parking spaces and installed structures.

The Fire Regulations do not designate specific locations where fire lanes must be on a lot. They only require that fire lanes be maintained “free of obstructions and vehicles and marked in an approved manner.” The 2009 Modification requires striping the existing travel lane and keeping it clear of obstructions. Although Chief McHugh told Ms. Santucci-Rozzi the fire lane should be adjacent to the Structure, he did not submit follow-up memoranda or instructions to her or to the Board setting forth that specific requirement. The parties acknowledge that the Fire Chief is the final arbiter over fire safety concerns. They further agree that fire lane placement and approval by the Board cannot divest the Fire Chief of his authority under the Fire Regulations. [Note 34]

Based on the trial evidence, this court finds that the location of the fire lane by the Board is neither untenable nor unreasonable. In fact, placing the fire lane adjacent to the Structure in accordance with the Chief’s informal communication likely would have been construed as arbitrary and capricious, given the attendant circumstances. Mr. Harnais credibly testified that he had a conversation with Chief McHugh after the Chief’s conversation with Ms. Santucci- Rozzi and Chief McHugh stated or implied he felt personal animosity towards RMT/McCourt and held a negative opinion of an unnamed McCourt employee. As a result of this conversation, Mr. Harnais concluded Chief McHugh’s requirement of an adjacent fire lane was the result of a personal “feud” and did not constitute “legitimate” reasoning. The striping of the fire lane in its existing location adheres to both the Fire Regulations as well as the formal Fire Department communication from the Deputy Fire Chief to the Board. This court finds the Board’s conduct and decision-making reasonable in that it followed its usual and proper procedure for obtaining comments from Town agencies and boards and thereafter applied proper state regulations. Its decision therefore is not legally untenable.

The question thus becomes whether the Board’s decision to allow the maintenance of the fire lane in its current location, in the existing travel lane on Locus, is unreasonable, arbitrary or capricious. The use of Locus at the time of the Modification Application presented the same fire hazards and risks as have been on Locus for many years in connection with uses by RMT/McCourt as well as Ainslie. Those conducting business on Locus are permitted to store oil, acetylene, oxygen, and other flammable materials that may present fire hazards onsite. Plaintiff’s expert on fire safety testified that, when determining a safe level of accessibility to a site for a fire department, several factors are considered, such as size of building, location of standpipes, and presence of a sprinkler system. The Structure on Locus has a sprinkler system and at least two standpipes. This court finds the Board reasonably determined that the location of the Fire Lane was appropriate.

d. The Board’s Findings Relating To Environmental Impacts Under the Watershed Protection By-law (WPB) were Reasonable

Aiello raised several concerns regarding the potential environmental impact of the 2009 Modification. He alleges the Board was unreasonable in its final approval of RMT/McCourt’s Stormwater Plan, and failed to adequately apply and make the findings required under the WPD.

At the time of the Modification Application, the existing drainage system on Locus was antiquated and failed to effectively protect water quality. It had been previously constructed to serve the Ainslie site, and predated current stormwater management regulations. The 2009 Modification calls for the installation of “Ultra-Drain Guard” inserts into the catch basins at Locus to filter surface water and remove a certain amount of oil and sediment before the water is discharged into surrounding wetlands. The Stormwater Plan also required the construction of a four-inch berm along the westerly boundary of the developed portion of Locus, designed to contain and attenuate surface runoff in the event of a hundred-year storm. [Note 35]

The facts demonstrate that the Stormwater Plan will improve the quality of run-off from Locus. Prior to the 2009 Modification, no berm existed along the westerly boundary of Locus. The four-inch berm proposed by the Stormwater Plan can sufficiently handle run-off from a hundred-year storm, providing greater flood control and control of the discharge rate of run-off. The Stormwater Plan will also reduce the impervious coverage of Locus by approximately two percent, reducing run-off. By collecting sediment and oils from water run-off, the Ultra-Drain Guard inserts will improve groundwater recharge and protect surrounding wetlands, further improving water management on Locus.

By-laws § 135-609(F) lists the four findings required by the Board before issuing a special permit in the WPD. It is clear a rational board could determine each finding was sufficiently supported, based on the facts found by this court. Section 135-609(F)(2)(a) requires a special permit to be “in harmony with the purpose and intent of this [By-law]” and to “promote the purpose of the WPD.” The purpose of the WPD is to protect, preserve and conserve Town water supply sources; to protect lakes, ponds, wetlands and other water bodies; and to protect the public from detrimental land and water uses. See By-laws § 135-609(A)(1)–(4). The final plans and conditions submitted by RMT/McCourt and ultimately approved by the Board included several improvements to Locus’ current insufficient water management system that demonstrate the Board analyzed the Modification Application within the context of the WPD’s purpose and intent, and sought to improve and protect Locus and the surrounding areas.

By-laws § 135-609(F)(2)(b) requires the proposed use “be appropriate to the natural topography . . . and other characteristics” of Locus, and By-laws § 135-609(F)(2)(c) requires a special permit not to adversely impact any water body in the district. The final requirement, pursuant to By-laws § 135-609(F)(2)(d) is that the proposed use not adversely affect water supply. The 2009 Modification tailored certain aspects of the plan to address specific concerns or issues raised by the site’s landscape, such as its current water management capabilities (already existing catch basins), establishing findings sufficient for subsection (2)(d). The installation of Ultra-Drain Guard inserts and a berm demonstrate that the topography and other characteristics of Locus were taken into consideration when drafting conditions for the 2009 Modification and that they will actually improve upon Locus’ existing impact on wetlands and water sources.

Aiello claims the findings by the Board under the WPD were inadequately supported or not found. He argues the Ultra-Drain Guard system is inadequate, and that a prior proposal, calling for installation of a more expensive “subsurface Rinker Stormcepter system,” should have been approved. However, at trial Defendants provided ample justification for the choice of the Ultra-Drain Guard system through their expert, whose testimony this court credited. Installation of the inserts would allow RMT/McCourt to retrofit the already-existing catch basins on Locus, rather than proceeding with extensive and disruptive excavation of the entire parking lot required to install the Stormcepter system. The Ultra-Drain Guard inserts remove approximately 80 percent of Total Suspended Solids (“TSS”), which is the guideline amount from the DEP. The court credits Mr. Hartnett’s analysis that, with proper maintenance, the Ultra-Drain Guard inserts are comparable in efficiency to the Stormcepter system.

e. The Board’s Findings Relating To Noise and Odors were Reasonable

The Board took several steps to mitigate the potential noise and odors which do and will emanate from the commercial uses on Locus. First, the decision requires all overhead garage doors facing the Aiello Property must remain closed when machinery is in use and generating noise. Also, the decision prohibits outdoor pressure washing and vehicle maintenance and repair. Neither of these restrictions were in place prior to the modification. The Aiello Property’s adjacency to an industrial/commercial district, however, limits the available mitigation options. It not only abuts Locus, but is also in close proximity to the lot located to the south of Locus, due to the narrow width of Locus. Noises from equipment operations on that property can be heard from both Locus and the Aiello Property. It must also be noted that the Aiello Property itself hosts several uses, ranging from a single-family residence to a catering business to agricultural uses. [Note 36] The evidence shows the Board thoroughly considered the conditions it imposed as part of the 2009 Modification, and that these conditions will improve the current state of noise and odor on Locus.

V. Plaintiff Failed to Demonstrate Bias of in Favor of McCourt on the Part of Mr. Harnais or Mr. Eng of the Planning Board

Aiello argues the Board considered factors other than legitimate zoning concerns when rendering its decision on the Modification Application. If a decision is a “mere pretext[s] for arbitrary action or veils for reasons not related to the purposes of the zoning law,” it is not entitled to deference. Shirley Wayside Ltd. P’ship, 461 Mass. at 475, citing Vazza Properties, Inc., 1 Mass. App. Ct. at 312. Aiello alleges two illegitimate factors influenced the Board’s decision: knowledge of a settlement agreement reached between McCourt and the Mayor of the Town of Braintree, and Mr. Eng’s continued MBTA employment at the time RMT/McCourt initiated the Modification Application.

a. The Settlement Agreement Between Defendant McCourt and the Mayor of Braintree Did Not Influence the Board Decision

Prior to the filing of the Modification Application, RMT/McCourt was cited and fined by the Building Inspector of the Town of Braintree (Building Inspector) for alleged zoning violations relating to the use of Locus. The violation notices related to use under the 1994 Special Permit. RMT/McCourt contested the alleged violations and associated fines, eventually entering into a settlement agreement with the Town in February 2009. The terms of the settlement called for RMT/McCourt to pay a fine in the amount of $15,500; to make landscaping and aesthetic improvements along its border with Pond Street; and to designate the Town as the principal place of garaging its vehicles, resulting in the payment of motor vehicle excise taxes to the Town.

Aiello alleges the Board considered the settlement agreement, and was motivated to vote in favor of the Modification Application due to the considerable excise tax revenue that would flow to the Town. As such, Aiello argues the Board’s favorable vote was merely a pretext to accommodate this agreement. Aiello was allowed to ask the Board Chair, Mr. Harnais, about the settlement agreement, since Aiello’s allegations regarding possible undue influence by the Mayor allegedly involved Mr, Harnais. He convincingly testified that the settlement agreement was not discussed as part of the Board’s consideration of the RMT/McCourt application and, contrary to the Aiello’s allegations, the existence of the settlement agreement did not factor into his own vote in any way. Despite considerable focus on the issue of possible undue influence during the discovery period, testimony from Mr. Harnais, which the court fully credited, established that there was none with respect to him.

b. Mr. Eng’s Vote in Favor of the 2009 Modification was Not Affected by Any Relationship Between McCourt and Mr. Eng

Aiello alleges that Planning Board member James Eng was motivated by a past professional or personal relationship with Defendant McCourt to vote in McCourt’s favor. Mr. Eng worked with the “T” in various capacities and, upon his retirement in 2005, continued to work as a consultant until 2009. Although Mr. Eng was still overseeing McCourt on certain contract work for the ‘T’s” Huntington Ave. project when RMT/McCourt filed its Modification Application, Eng had ceased working for the “T” approximately six months prior to the Board’s vote in September 2009. Aiello points to the fact that Mr. Eng was responsible for authorizing payment disbursements to McCourt Construction, including the final five percent retainage held by the “T” until the project’s completion, as evidence of his bias. Aiello also argues that Mr. Eng’s recusal from a 2005 vote by the Conservation Commission (of which he was a member at the time) relating to Locus proves Mr. Eng was aware of a conflict of interest and should have recused himself from the vote on the 2009 Modification.

The court finds that Mr. Eng’s limited involvement with the “T” at the time RMT/McCourt filed the Modification Application did not influence his decision to vote in favor of McCourt. [Note 37] At trial, Mr. Eng testified that, in preparation for trial, he had reviewed the testimony he had given at a deposition in this case. He stated his review reminded him of the extent of his professional involvement with McCourt in connection with the Huntington Ave. project which he had failed to recall correctly during his deposition. Assessing his testimony at trial, the court found Mr. Eng credible and forthcoming regarding the prior gaps in his memory relating to past professional engagements with McCourt, and also found he was not predisposed to vote in RMT/McCourt’s favor.

Based on this court’s findings and rulings that Mr. Aiello failed to establish standing to prosecute this appeal, the decision of the Board granting the 2009 Modification is AFFIRMED. Further, in accordance with this court’s bifurcation order of October 3, 2013, and the evidence from Mr. Harnais and Mr. Eng at trial, Plaintiff’s Art. 29 claim is DISMISSED.

Judgment to enter accordingly.

exhibit 1

Chalk A


[Note 1] Collectively, RMT, McCourt, and the Board sometimes are referred to as “Defendants.” The non- municipal Defendants, when referenced together, are “RMT/McCourt.”

[Note 2] See Notice of Docket Entry, dated March 8, 2011.

[Note 3] Following Judge Trombly’s retirement, this case was reassigned to Judge Scheier.

[Note 4] See Notice of Docket Entry, dated October 3, 2013. This court also noted the existence of a related zoning enforcement appeal, 11 MISC 447965, and stated that it would take no action on that case pending resolution of this G. L. c. 40A, § 17 appeal.

[Note 5] They filed ten motions in limine to: 1) exclude lay and expert testimony of Roger Aiello; 2) exclude lay and expert testimony of Darlene Aiello; 3) exclude evidence regarding the “sufficiency” of the proposed fire lane; 4) exclude evidence regarding permitted uses under prior zoning relief and permits Aiello did not appeal; 5) exclude evidence regarding zoning enforcement actions relating to Locus; 6) exclude evidence regarding the settlement of fines assessed for alleged zoning violations; 7) exclude evidence regarding the Town of Braintree Master Plan; 8) exclude evidence regarding the Mayor of Braintree’s site visit to the Aiello Property; 9) exclude testimony from Plaintiff’s counsel, Attorney David Kellem, and prohibit Plaintiff from calling defense counsel, Attorney Carolyn Murray for the Board and Attorney Jeffrey Tocchio for McCourt, as witnesses; and 10) exclude evidence regarding complaints about Locus filed with the Health Department.

[Note 6] The parties filed respective oppositions to the others’ motions in limine.

[Note 7] Testimony of alleged diminution in property value requires expert testimony. See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994). Plaintiff failed to provide sufficient support that either Roger or Darlene Aiello was qualified to testify as an expert on the current real estate market, property valuations or recent and comparable sales.

[Note 8] Aiello filed a motion for reconsideration of this order on January 2, 2014. This court granted his motion in part, allowing inquiry of Board member James Eng and Chairman Robert Harnais. As discussed below in this decision, this court also modified other parts of its motion in limine orders at trial, based on the testimony and evidence presented.

[Note 9] Mr. Eng retired from the T as an employee in 2005. He served as a consultant to the T until April 2009. He was appointed to the Board in 2008.

[Note 10] See Order Denying Plaintiff’s Emergency Motion to Continue Trial and Require Production of Documents, dated December 11, 2014.

[Note 11] Aiello was permitted to and did present deposition testimony for impeachment purposes.

[Note 12] Linda Cusick is no longer a member of the Board.

[Note 13] Pursuant to By-Laws § 135-501, the special permit granting authority (SPGA) in Braintree is the Board.

[Note 14] The 100-foot Buffer Zone, as it applies to Locus, is depicted by red shading on Exhibit 25.

[Note 15] Throughout trial and in briefing, all parties referred to this decision as the 2004 ZBA Decision. However, it appears that, although RMT/McCourt applied for the variance in 2004, it did not issue or was not filed with the Town Clerk until May 11, 2005. The court notes that RMT/McCourt’s petition requested “a permit and/or variance for [Locus] for relief under zoning by-law §135-402, 135-403, 135-407, and 135-701 in order to make improvements to the existing building consisting of interior partitioning to create five potential tenant spaces together with new overhead doors.” The cited sections of the By-Laws include those for proposed changes to non- conforming structures and uses as well as variances. Under the By-Laws, the ZBA is the designated board to hear petitions for changes to uses and structures involving preexisting non-conforming uses and structures. The 2004 ZBA Decision does not make it clear under which of the By-Laws section it was decided. There was no appeal, and RMT/McCourt proceeded to complete the work authorized by the decision.

[Note 16] At the time of trial, known as Ms. Santucci-Rozzi.

[Note 17] New regulations were adopted on January 1, 2015, revising much of this chapter.

[Note 18] Chief McHugh is now deceased.

[Note 19] The catch basin inserts are described as a “membrane-type” which would provide approximately 80 percent Total Suspended Solids (TSS) removal from stormwater runoff (80 percent is the required removal efficiency outlined in the DEP Stormwater Management Standards).

[Note 20] RMT/McCourt submitted a Revised Drainage Analysis, drafted by Cubellis, on October 13, 2009, demonstrating that the proposed 4-inch berm would sufficiently handle runoff from a 100-year storm.

[Note 21] Roger Aiello’s testimony about his property was the subject of much pre-trial discussion, as he sought to testify as an expert. While a non-expert owner of property may testify to its value, based on “his familiarity with the characteristics of the property, his knowledge or acquaintance with its uses, and his experience in dealing with it,” Epstein v. Bd. of Appeal of Boston, 77 Mass. App. Ct. 752 , 759 (2010), citing Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83 , 85 (1954), evidence of diminution in property value requires expert testimony. See Monks, 37 Mass. App. Ct. at 688. The November 7, 2013 Order precluded Mr. Aiello from testifying as a lay or expert witness on alleged diminution of value. At trial, Plaintiff’s counsel sought to lay a foundation for Mr. Aiello’s ability to testify to the diminution of value of his property based on Mr. Aiello’s experience as a developer and property manager. Based on that questioning, this court confirmed its ruling under the November 7, 2013 Order, finding that Mr. Aiello did not have the requisite knowledge of the Braintree residential real estate market to provide such expert testimony.

[Note 22] On September 18, 2014, the fourth day of trial, McCourt filed a motion in limine to preclude the testimony of Aiello’s expert witnesses, Eric Hubler and Aaron Becker. Aiello ultimately chose not to call Mr. Becker to testify. After Mr. Hubler’s testimony, McCourt orally moved to strike it, alleging he lacked adequate personal knowledge of Locus and was unable to link the location of the fire lane under the 2009 Modification to damages caused to the Aiello Property. The court took the motion under advisement. It now is DENIED. The court has considered Mr. Hubler’s testimony, giving it the weight the court deems appropriate.

[Note 23] Mr. Hubler also seemed to acknowledge during cross-examination that the placement of the fire lane in the travel lane as proposed under the 2009 Modification would not increase the risk of damage to the Aiello Property:

“Q: Well, do you believe that the location of the fire lane [on the 2009 Modification plan] is placed such that by requiring it [in the travel lane] it increases the damage . . . to Mr. Aiello’s property?

A: Do I believe a fire lane increases a risk of damage, no.

Q: The striped fire lane, where it is on this plan, let’s assume it wasn’t striped before and then it was striped where it is?

A; No. I don’t see how a fire lane could do that.”

On re-direct, Mr. Hubler, in an attempt to clarify the previous exchange, stated his understanding of the question posed above was “can a fire lane create more damage[?]” However, Mr. Hubler acknowledged that the state of Locus prior to the 2009 Modification, in which no fire lane was striped or otherwise designated on the ground, poses a greater risk than having a fire lane designated and striped as proposed under the 2009 Modification.

[Note 24] “Where, due to the size, shape or topography of a lot, the strict provisions of [the Buffer Zone By-law] would reduce the usable area of a lot so as to preclude a reasonable use of the lot, the [Board] may grant a special permit to modify the transition area requirements where the side of a building, a barrier, and/or the land between the building and the lot line has been specifically designed, through a combination of architectural and landscaping techniques, to minimize potential adverse impacts on abutting lots.” By-Laws § 135-702(B)(12).

[Note 25] Some of the requirements the Board had imposed were in place by the time of this court’s view. For example, the fencing had been installed along the property line and some trees and flowers had been planted.

[Note 26] Aiello’s allegations of environmental harm from potential contaminants posing a risk to his abutting property fail for the same reason, as the 2009 Modification requires that the old drainage system at Locus be significantly upgraded. While there was evidence that the system chosen by RMT/McCourt might not have been the best option for reducing contaminants, the evidence established that the Board’s authorization of such system was not unreasonable, as it will significantly improve what predated it and will catch contaminants if properly maintained. (See further discussion below.)

[Note 27] See fact paragraph 27 for text of § 135-503(I).

[Note 28] See fact paragraphs 32–37.

[Note 29] The By-laws are silent as to whether the procedural review of a modification of a special permit differs from that for a new special permit. Paragraph 14 of the 1994 Special Permit states “[a]ny request for modification of this approval shall be made in writing to the [Board.] If the [Board] decides the proposed modification is substantial, notice shall be given and a public hearing shall be opened[.]” RMT/McCourt’s Modification Application was titled “94-3 major Modification,” see Exhibit 18B, and the appropriate notice procedures were followed with a public hearing. Under Barlow, 64 Mass. App. Ct. 314 , the standards attendant to consideration of a special permit pertain to amendments and modifications thereof.

[Note 30] Ms. Santucci-Rozzi testified the Board limited its findings to the two provisions affected by the Modification Application, and that the findings required under By-laws § 135-503 apply to “use special permits.” The Board therefore did not make those findings, but did make “more specialized” findings pursuant to the specific By-laws implicated by the specific relief sought in the Modification Application.

[Note 31] Ainslie’s use of the buffer zone for parking and use of the Structure were preexisting nonconforming. As shown on Exhibit 25, due to the long narrow shape of Locus, and the pre-existing location of the Structure, about half of the Structure and all of Locus between the Structure and the Aiello Property fall within the 100 foot buffer zone.

[Note 32] See Tr. Vol. III, 130: 14–131: 14: cross-examination of Ms. Santucci:

“Q: From the Ainslie use of employee parking to the McCourt use of parking construction equipment, is that not a change in use?

A: Of the specific vehicle, yes; of parking, no.

Q: So even though it prohibits parking of construction vehicles and now allows it, you don’t think that’s a change in use?

A: Authorized by the special permit.

Q. So it is a change in use?

A: In this context, the area being used as parking continues to be used as parking in my opinion is not a change in use.

Q: Didn’t you just say it was permitted by the planning board?

A: Correct.

Q: Because it was a change in use?

A: Because it was a different type of vehicle . . . . Still Parking. Parking is parking to me.”

[Note 33] Consistent with the nature of de novo trials under G. L. c. 40A, § 17, the court may hear evidence which was not presented to the Board. Mr. Houston’s presentation was not before the Board at its hearings on the 2009 Modification.

[Note 34] See 527 Code Mass. Regs. § 10.03(10)(a) (stating the head of the fire department “shall require and designate . . . fire lanes as deemed necessary[.]” The current Fire Chief has not indicated the fire lane must be adjacent to the Structure or otherwise relocated, nor submitted anything in writing regarding the approval of the 2009 Modification.

[Note 35] RMT/McCourt’s initial proposal for its stormwater management was based on a fifty-year storm event. The Board required them to base their plans on a hundred-year event and the application was revised accordingly.

[Note 36] The court observed during its view of Locus and the Aiello Property the presence of several pieces of equipment outside the catering business.

[Note 37] This court makes no findings or rulings with respect to whether Mr. Eng’s participation in the Board’s decision implicated any issues under Conflict of Interest laws, as that matter was not before the court, although briefed by both sides.