PRIMROSE SCHOOL FRANCHISING CO. and JOYCE WENDLER, Executrix of the Estate of Helen L. Naylor and Heir under the Will of Helen L. Naylor vs. TOWN OF NATICK; MICHAEL J. HICKEY, JR., SCOTT W. LANDGREN, ROBERT E. HAVENER, PAUL T. MULKERRON, and KATHRYN M. COUGHLIN, Memebers of the Zoning Board of Appeals of the Town of Natick.

The above-captioned actions represent a dispute as to a proposal (the “Project”) of Case 1 Plaintiffs Primrose School Franchising Company (“Primrose”) and Joyce Wendler, Executrix of the Estate of Helen L. Naylor and Heir under the Will of Helen L. Naylor (“Wendler”) (together, the “Developers”) to construct a child care facility (the “Facility”) in Natick, Massachusetts.

The Developers commenced Case 1 against Defendants (in both Case 1 and Case 2) Town of Natick (the “Town”) and Members of the Zoning Board of Appeals of the Town of Natick (the “ZBA”) (together, “Defendants”)) by filing an unverified complaint on February 10, 2012, by which they sought (a) a determination, pursuant to G. L. c. 240, § 14A, as to the validity of certain provisions of the Town’s Zoning Bylaws (the “Bylaws”), and as to the extent to which such provisions affect the construction of the Facility; and (b) to appeal, pursuant to G.L. c. 40A, § 17, a decision (“ZBA Decision 1”) of the ZBA dated December 12, 2011, which had denied the Developers’ application for three special permits (the “Special Permits”) [Note 1] and their request for a finding pursuant to G.L. c. 40A, § 6 (the “Section 6 Finding”) that the Facility could be constructed as a conforming building on a non-conforming lot. [Note 2] A case management conference in Case 1 was held on March 5, 2012. On August 23, 2012, the Abutters filed a motion to intervene in Case 1, which was denied by order dated August 31, 2012.

On October 1, 2012, the Developers moved for summary judgment in Case 1, which was supported by a memorandum of law and affidavit of Curt Van Emon (business consultant). Defendants filed their opposition to the Developers’ motion on November 1, 2012, which was supported by a memorandum of law, affidavit of Patrick Reffett (“Reffett”) (the Town’s Community Development Director), and correspondence from Natick residents. On November 13, 2012, the Developers filed their reply memorandum, and on November 20, 2012, Defendants filed a supplementary opposition brief. On December 3, 2012, the Developers filed a motion to strike Paragraphs 6-17 of Reffett’s affidavit, as well as the Communications. On January 25, 2013, Defendants filed their opposition this motion to strike. A hearing on both motions was held on January 30, 2013, and, at that time the matter was taken under advisement.

By decision dated June 17, 2013 (“Land Court Decision 1"), this court held as follows:

(a) that the Bylaws may require a special permit for construction of the Facility within the RSAD;

(b) that the Bylaws may require a special permit for construction of the Facility within the APD;

(c) that the Bylaws may require a special permit for construction of the Sign;

(d) that frontage and lot width requirements, as they relate to traffic and access concerns, are reasonable regulations, as applied to the Facility;

(e) that the Facility may be subject to a finding, pursuant to G. L. c. 40A, § 6 and Section V.2 of the Bylaws, that it will not be substantially more detrimental than the existing structure, but that such a finding must be applied reasonably; and,

(f) that the ZBA could not outright deny the proposed use in the Facility, but that the ZBA could apply reasonable conditions to such use.

Accordingly, the court remanded the issue of the Special Permits to the ZBA for a new hearing consistent with Land Court Decision 1.

Following the remand of Case 1 to the ZBA, on November 18, 2013, the ZBA voted (“ZBA Decision 2") to grant the Special Permits, subject to fifteen conditions. In response, the Developers filed an unverified second amended complaint in Case 1 on January 7, 2014, by which they sought, pursuant to G. L. c. 240, § 14A, G.L. c. 40A, § 17, and G. L. c. 185, §§ 1(p), 1 (j ½), (a) a judicial determination with respect to certain provisions of the Bylaws, and (b) to appeal ZBA Decision 2.

After ZBA Decision 2 was issued, two local abutters (Case 2 Plaintiffs David F. Porter (“David”) and Elizabeth M. Porter (together, the “Abutters”)) commenced Case 2 by filing an unverified complaint on January 8, 2014, by which they also sought to appeal ZBA Decision 2 pursuant to G. L. c. 40A, § 17. By this appeal, the Abutters sought not to prevent the commencement of the Project entirely, but rather to object to the alleged laxness of the conditions imposed on the Project pursuant to ZBA Decision 2. On January 27, 2014, the Developers moved to intervene in Case 2 and to consolidate Cases 1 and 2, which motion was allowed by order dated February 20, 2014.

On July 31, 2014, the Developers filed a motion for summary judgment in both Case 1 and Case 2, which was supported by a memorandum of law and a transcript of David’s deposition testimony. On August 20, 2014, the Abutters filed their opposition to the Developers’ summary judgment motion. On August 29, 2014, Defendants filed their own opposition to the Developers’ motion, as well as a cross-motion for summary judgment, which was supported by a memorandum of law and affidavits of Reffet and Kien Y. Ho, P.E. (“Ho”) (an engineer with Beta Group, Inc.). On September 15, 2014, the Developers filed their reply brief on the motions for summary judgment. A hearing was held on both motions was held on October 23, 2014, and both motions were taken under advisement at that time.

Based upon the documents and affidavits annexed to the parties’ summary judgment briefs, and based upon the prior findings set forth in Land Court Decision 1, I find that the following material facts are not in dispute:

1. Wendler is the owner of the property known as and located at 294-296 North Main Street, in Natick, Massachusetts (“Locus”), which is the proposed location for the Project. Primrose is a corporation organized under the laws of Georgia, which is in the business of educational child care. Primrose entered into a purchase and sale agreement with Wendler to purchase Locus (which contains two lots), and it plans to merge the two lots comprising Locus (defined, infra, as Lot 1 and Lot 2), which, when combined, would comprise approximately 132,420 square feet in area.

2. Locus is situated on the westerly side of North Main Street (“Route 27”) -- which is a two-lane, bidirectional public roadway -- approximately 0.6 miles south of Route 30 in Wayland, Massachusetts and approximately 0.8 miles north of Route 9. Route 27 is thirty-two feet wide at the site of Locus. There are two schools located approximately 0.40 and 0.66 miles from Locus, respectively, and Route 27 is a primary route for parents picking up and dropping off their children and attending events at these schools. [Note 3] There is a marked, paved shoulder of approximately three to four feet in width along both sides of Route 27.

3. Locus consists of two lots (“Lot 1” and “Lot 2”), each of which contains a single- story, single family residence, as well as accessory structures. Lot 1 is 2.278 acres in area and Lot 2 is 0.762 acres in area; together, Lots 1 and 2 are 3.04 acres in area. Lot 1 fronts on Route 27, and has 83.4 feet of frontage thereon; Lot 2 does not have frontage on Route 27, but it is benefitted by an easement over Lot 1 to access Route 27. Lot 2 abuts Lot 1 on a portion of the south side of Lot 1. Lot 1 has a lot width of 71.9 feet at its narrowest point (i.e., the portion of the lot leading to the frontage on Route 27). Pursuant to the Bylaws, Locus is located in the RSAD and the APD.

4. For lots within the RSAD, the Bylaws require frontage of 110 feet and lot width of 82.5 feet. With respect to lot width, the Bylaws state that “no portion of the lot between the dwelling or other primary structure and the street line of the front yard shall have a width, where width is defined as the shortest distance between the side lot lines, that is less than three quarters of the minimum required frontage.”

5. Pursuant to the Project, Primrose proposes to raze the existing structures on Lots 1 and 2, and to construct the Facility on Locus to accommodate 189 school-aged children and forty employees. The Facility, as proposed, will be a 1.5 story building with approximately 12,000 square feet of gross floor area. The Facility will comply with all dimensional requirements of the Bylaws with respect to height, setbacks, and building coverage. Primrose intends to use the Facility to provide day care to infants and children, and to conduct an instructional after-school program for school-aged children. [Note 4] Access to the Facility, as proposed, will be through an unsignaled driveway from Route 27.

6. Pursuant to Bylaws § V-H D. 1(a) 1, the faces of accessory signs in the RSAD must be smaller than one square foot. However, pursuant to Bylaws § V-H E. 4, the ZBA is authorized:

[to] grant a specialpermit for a sign not complying with the provisions of [the Bylaws,] if it determines that the particular sign will be in harmony with the general purpose and intent of this section[,] will not be injurious to the neighborhood in which such sign or signs are to be located nor to traffic and safety conditions therein, nor otherwise detrimental to the public safety and welfare...

7. As part of the Project, Primrose proposes to construct the Sign, which, as proposed, would be larger than one square foot. [Note 5]

8. On April 7, 2011, Primrose filed with the ZBA applications for the Special Permits and the Section 6 Finding (the “Permit Applications”). In response to these applications, the ZBA held a five-session public hearing on the Permit Applications, which commenced on May 9, 2011, and was continued to June 20, 2011, September 12, 2011, September 19, 2011, and November 7, 2011 -- on which date the ZBA closed the hearing.

9. Over the course of such public hearing sessions, the ZBA heard testimony from Primrose, its attorney, members of the community, and an attorney(Caren Schindel) who represented a large group of parties opposed to the Project. The ZBA also received and reviewed numerous plans, reports, memoranda, and other evidence, and heard testimony for a total of sixteen hours. During the course of these hearings, Primrose submitted revised lighting and landscaping plans. Primrose did not propose to scale down the size of the Facility, and it did not agree to install a traffic signal or to discuss such matters with the Massachusetts Department of Transportation (“MassDOT”).

10. On December 12, 2011, the ZBA voted unanimously (5-0) to deny the Permit Applications, and thereafter filed ZBA Decision 1 with the Town Clerk on January 26, 2012 in accordance with the ZBA’s vote. [Note 6]

11. In response to the Developers’ appeal of ZBA Decision 1, this court issued Land Court Decision 1, in which the court ruled, inter alia, that by outright denying the Permit Applications, the ZBA nullified the zoning protections afforded to child care facilities under G.L. c. 40A §3 (the “Dover Amendment”). [Note 7] As such, the court remanded the matter to the ZBA to hold a public hearing for the purpose of determining reasonable conditions to be imposed upon the approval of the Permit Applications. On November 18, 2013, the ZBA voted (4-0, with one abstention) to grant the Permit Applications, subject to fifteen conditions specified in ZBA Decision 2, which was filed with the Natick Town Clerk on December 20, 2013. The fifteen conditions set forth in ZBA Decision 2 (respectively, “Condition 1" through “Condition 15") are as follows:

1. One free standing sign limited to the design and size and lighting style provided to the Board . . . .

2. An additional stop sign and opposing “keep right” sign on the raised center island . . . .

3. Off-site Route 27 road improvements including any resurfacing, restriping and pole relocation to include a left turn lane from northbound lane off Route 27 into the site as shown. . . to Natick ZBA . . . .

4. Limitation of enrolled population to a maximum of 152 students with hours of operation from 6:00 a.m. to 6:30 p.m. Lighting (other than security) and in accordance with Town bylaws not to exceed 30 minutes before or after closing.

5. Payment of $19,680 for off-site improvements to improve the intersections at Evergreen and Pine Streets payable to the Town of Natick at the time of permitting.

6. Special Permits approved for this site to be used for a child care center as proposed do not run with the land, rather any modifications or changes in use or Special Permit holder must be presented to the Natick ZBA for further review and approval.

7. All HVAC and mechanicalstructures mounted and maintained interior to the structure.

8. All snow to remain on-site or trucked to an approved offsite location, and not forced onto abutting land or into the right of way.

9. Dumpster located on-site and properly screened by fencing and secured as shown on plans submitted, and pick up and drop off during normal business hours.

10. On-site activities after hours for special events will be controlled and limited by the applicant.

11. Driveway striped “no parking” along fire lane access; 18-20 employee parking spaces to be located on the northerly side of the property.

12. Porous pavement to be used in the driveway and parking areas.

13. Delivery of supplies only during normal business hours.

14. Rear of the parcel to remain as open space.

15. Incorporate by reference any other applicable conditions by other municipal boards or departments with jurisdiction; permit or license approval of same.

12. On January 7, 2014, the Developers appealed ZBA Decision 2 to this court in Case 1. On January 8, 2014, the Abutters appealed ZBA Decision 2 in Case 2. On February 20, 2014, the court allowed the Developers’ motion to intervene in Case 2 and to consolidate Cases 1 and 2.

13. The Abutters reside at 293 North Main Street, Natick, Massachusetts, whichis located across Route 27 from Locus. As their house is directly across Route 27 from the proposed driveway leading to the Facility, the Abutters are concerned about increased traffic in front of their house. The Abutters submitted no expert testimony or traffic study as to the traffic impact the Project would have on their property. In his deposition, David was unable to identify any specific harm that traffic would cause to his own property; rather, he discussed alleged prior traffic incidents unrelated to Locus or the Abutters, and stated that “[a]nything that affects the neighborhood affects my wife and myself”. [Note 8]

14. The Abutters also expressed concerns about artificial light fromthe Sign(which David claimed “would aggravate me a little bit”). The Abutters submitted no expert evidence as to this claimed harm. In his deposition testimony, David acknowledged that the Porters were unaware of what hours the Sign would be illuminated and the direction in which light from the Sign would shine. He also acknowledged that the Sign would be located more than 110 feet from his house. He further acknowledged that the Abutters’ property is located in a mixed use area, and that multiple other properties (including a nearby Dairy Queen restaurant that he owns) maintains illuminated signs.

15. The Abutters also expressed concerns about increased noise (from children playing) that “may” emanate from the Project. The Abutters submitted no expert evidence as to this claimed harm. With respect to noise, David acknowledged that the playground on Locus would be located on the far side of the Facility from the Abutters’ property. [Note 9] He also acknowledged that any such noise would not significantly affect his property, and stated that his concerns were related not to his own property, but rather to “the neighborhood. I’m not specifically talking about me.” [Note 10]

16. In connection with their application for approval of the Project, the Developers retained Vanasse & Associates, Inc. (“Vanasse”) to conduct two traffic studies (the “Traffic Studies”) -- the first in May of 2011 (“Traffic Study 1”) and the second in October of 2013 (“Traffic Study 2”). Traffic Study 1 found, inter alia, as follows:

(a) that weekday average vehicle volume along Route 27 is 16,272 vehicles, including 1,222 vehicles per hour during the weekday morning peak hour (8:00 a.m. to 9:00 a.m.) and 1,314 vehicles during the weekday evening peak hour (4:00 p.m. to 5:00 p.m.);

(b) that, during the morning peak hour (8:00 a.m. to 9:00 a.m.), the Facility would generate 151 new trips per hour, based on 80 vehicles entering Locus and 71 vehicles exiting Locus; and,

(c) that, during the weekdayevening peak hour (4:00 p.m. to 5:00 p.m.), the Facility would generate 155 new trips per hour, based on 73 vehicles entering Locus and 82 vehicles exiting Locus.

17. After the Developers submitted Traffic Study 1 to the Town, Reffett arranged for Beta Group, Inc. (“Beta”) to peer review Traffic Study 1, as well as Primrose’s special permit site plans for Locus. Beta provided certain recommendations to Primrose as to supplementation and expansion of Traffic Study. Vanasse implemented Beta’s recommendations in Traffic Study 2, which confirmed the prior findings of Traffic Study 1, and concluded that (a) the Project design would provide safe ingress and egress to and from Locus, (b) the Project would cause no unsafe driving conditions along Route 27, and (c) the expected traffic volume would not increase as a result of the Project.

18. By letter (the “Peer Review”) dated October 15, 2013, Ho (an engineer employed by Beta) noted that Traffic Study 2 had implemented Beta’s prior recommendations. Further, Ho opined (a) that “[t]here are sufficient sight distances (>400 feet) approaching the site driveway in both directions”, (b) that “there does not appear to be a safety issue in the study area”, (c) that appropriate local data (as well as that from MassDOT) was considered in connection with the Traffic Studies, (d) that the trip generation methodology of the Traffic Studies was appropriate, (e) that “[t]he driveway does not meet any of the signal warrants based on the vehicular volumes” [Note 11], and (f) that “[t]he site plan shows an adequate snow storage area”. On the basis of these findings, Ho stated that Traffic Study 1, as supplemented by Traffic Study 2, “provides a more accurate depiction of the traffic impact of the proposed development.” Ho also confirmed these findings in his affidavit.

19. Although Ho did not disagree with the findings of the Traffic Studies, he did recommend that a northbound left turn lane be installed on Route 27 at the proposed location of the Locus driveway intersection to “prevent northbound through traffic from being blocked by vehicles waiting to turn left into the site.” Reffett testified that no MassDOT approval would be required for this proposed turn lane, and submitted a MassDOT jurisdiction map indicating that the relevant area of Route 27 is not within MassDOT’s jurisdiction.

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Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g., Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The Developers argue that Condition 3 (which requires installing a left turn lane), Condition 4 (which, inter alia, caps enrollment at the Facility), and Condition 15 (which “[i]ncorporate[s] by reference any other applicable conditions by other municipal boards or departments with jurisdiction; permit or license approval of same”) should be altered or stricken from ZBA Decision 2. In addition, the Developers challenge the standing of the Abutters in Case 2. The Abutters allege that they would be uniquely affected by the Facility due to lighting, traffic, and noise. Additionally, the Abutters claim that Defendants’ issuance of ZBA Decision 2 was arbitrary and capricious.

The Developers’ Challenge to Conditions in ZBA Decision 2

The court’s review of the facts at issue and determinations of the ZBA is de novo; as such, the findings and determination of the ZBA are accorded no evidentiary value. E.g. Josephs v. Bd. of App. of Brookline, 362 Mass. 290 , 295 (1972). Nonetheless, the court’s review is “circumscribed: the decision of the [ZBA] cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quotations omitted); see also Britton v. Zoning Bd. of App. Of Gloucester, 59 Mass. App. Ct. 68 , 73 (Mass. App. Ct. 2003) (“a highly deferential bow [is due] to local control over community planning”).

In sum, the court’s task is “to ascertain whether the reasons given by the [ZBA to impose the conditions set forth in ZBA Decision 2] had a substantial basis in fact, or were . . . mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (Mass. App. Ct. 1973); see also Britton, 59 Mass. App. Ct. at 74-75 (the local board’s decision must be supported by a rational view of the facts).

A. Condition 3 (The Left Turn Lane Requirement)

Condition 3 of ZBA Decision 2 requires the Developers to install a northbound left turn lane on Route 27 into Locus to alleviate some of the anticipated increases in traffic that could result when the Facility begins to operate. Despite the fact that the Developers’ Traffic Studies suggest that there would be no significant increase in traffic, they have nonetheless agreed to make any necessary road alterations on Route 27 -- so long as the approval process for doing so is not unduly onerous. [Note 12] Notwithstanding this commitment, the Developers object to Condition 3 based upon their concern that they would be unable to comply with Condition 3 if they are unable to obtain approval for the turn lane from the relevant approving body. They further object to the “vague” language of Condition 3, which was silent on as to which authority’s permission would be required in order to construct the left-turning lane.

The Developers’ concern here is not entirely unfounded, since -- as this court has previous stated -- it would be unfair to sanction the Developers for their inability to comply with Condition 3 if they proved unable to obtain the necessary permits to do so -- a process over which they likely have little to no control. E.g., Mehr v. Bd. Of App. of Hinsdale, 15 LCR 235 , 238 n. 11 (Mass. Land Ct. 2007) (“It would be unfair to sanction the applicant for a special permit for improper actions taken by the special permit granting authority over which the applicant has no control.” (citing Zuckerman v. Zoning Bd. of App. of Greenfield, 394 Mass. 663 , 667 (1985))). Here, however, the relevant portion of Route 27 on which the required turn lane would be constructed is under the sole jurisdiction of the Town -- not the Massachusetts Department of Public Works (“MassDPW”), MassDOT, or any other statewide governing authorities. This is conclusively established by a MassDOT jurisdiction map, which indicates that MassDOT does not have the authority to maintain Route 27 in Natick. Moreover, at the summaryjudgment hearing, Defendants acknowledged that they have the sole authority to maintain Town roads -- including Route 27.

Of course, it remains true that the Developers must receive approval from the Town in order to commence the work of implementing Condition 3; however, Defendants, by conditioning their approval of the Project upon Condition 3, have made it clear that they are amenable to such work being conducted. [Note 13] Condition 3 should therefore be amended in this regard. [Note 14] Accordingly, since there appears to be no serious impediment to the Developers’ compliance with Condition 3, as amended, I find that Condition 3 is reasonable.

B. Condition 4 (Maximum Enrollment Capacity)

Pursuant to Condition 4, Defendants required, inter alia, the Developers to cap maximum student enrollment at the Facility to 152 students, down from the proposed limit of 189. Citing the Dover Amendment, the Developers claim that the ZBA lacked the authority to impose, as a condition of allowing the Project, a cap upon enrollment of students at the Facility. [Note 15] Based upon Defendants’ framing of Condition 4 as an “access related condition[ ]”, it is clear that the intention of Condition 4 was to limit the number of vehicle trips coming and going from Locus. Defendants cite this court’s discussion of frontage and dimensional requirements in Land Court Decision 1, and argue that “this Court [sic] endorsed the imposition of access related conditions under the aegis of the Dover Amendment.”

The Dover Amendment was enacted in order to protect institutions that are dedicated to education -- whether in a secular or a religious context. Given this mandate, the Dover Amendment exempted qualified educational institutions from zoning requirements that would otherwise purport to restrict the use of land for educational purposes or to expand such use. However, the Dover Amendment does countenance local zoning authorities retaining certain limited authority to regulate Dover Amendment facilities, but only under the limited circumstances enumerated by the Dover Amendment. To wit, the Town may impose “reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” G. L. c. 40A, §3, ¶ 3.

Based upon the clear language of G. L. c. 40A, §3, ¶ 3, this court, in Land Court Decision 1, noted that imposing reasonable frontage and lot size requirements was within the authority of the ZBA. However, G. L. c. 40A, §3, ¶ 3 is silent as to issues relating to site access and vehicular traffic. Moreover, the statute is clear that such regulations may apply only to the “land and structures” to be used in connection with the Dover Amendment facility. Id. Thus, Defendants’ broad suggestion that this court “endorsed the imposition of access related conditions under the aegis of the Dover Amendment” is mistaken. [Note 16]

While local zoning authorities may apply limited restrictions to the “land and structures” used in connection with a Dover Amendment facility, authority to regulate the actual use of said facility is vested in the Massachusetts Department of Early Education Care (“MassEEC”). See G. L. c. 15D, §§ 2(c), 6(a). Pursuant to G. L. c. 15D, §§ 3(a), 8(a), the Massachusetts Board of Early Education and Care is charged with promulgating regulations for MassEEC’s governance of Dover Amendment facilities. See generally 606 Mass. Code Regs. 7.01-7.14. With respect to the number of students an approved child care facility may house, MassEEC regulations provide as follows:

Programs will be licensed for the maximum number of children who may be in the care of educators at any one time, taking into consideration the size and layout of the physical facility, the number and qualifications of educators, the equipment and resources available to the children, the individual needs and characteristics of the children served, and the building certificate capacity, if applicable.

606 Mass. Code Regs. 7.03(2). Thus, even under MassEEC’s power to regulate the number of students enrolled in an educational facility, traffic and site access are not enumerated concerns upon which enrollment may be limited. Rather, such limits must be based on the capacity of the Facility itself, which the ZBA has (conditionally) approved. If MassEEC were to determine that the Facility is insufficient to house the number of students proposed by the Developers, then MassEEC (but not the ZBA) could cap enrollment; even in that case, however, such cap could not be based on traffic and/or access to Locus.

In view of the foregoing, G. L. c. 40A, §3, ¶ 3 did not give the ZBA authority to limit the amount of students that the Facility may house as a means of reducing vehicular traffic to and from Locus. [Note 17] As such, I find that Condition 4 is unreasonable to the extent that it purports to condition approval of the Project upon a cap in the maximum number of enrollees in the Facility.

C. Condition 15 (Requiring Compliance With “Any Other Applicable Conditions”)

The final condition that the Developers challenge is Condition 15, which requires compliance with “any other applicable conditions by other municipal boards or departments with jurisdiction, permit, or license approval of same.” The Developers contend that Condition 15 should be deemed “void for vagueness”, since it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, thereby allowing untrammeled [administrative] discretion . . . and arbitrary and capricious decisions in violation of the due process clause of the Fourteenth Amendment . . . and of Art. 10 of the Massachusetts Declaration of Rights.” Bd. of App. of Hanover v. Hous. App. Comm’n, 363 Mass. 339 , 363-64 (1973). Defendants claim that, in fact, Condition 15 “reflects compliance with local law, by incorporating reference to other applicable conditions by other Town boards or departments with jurisdiction, licenses, or approvals.”

Despite Defendants’ seemingly bona fide intentions to simply hold the Developers to the conditions of other related municipal boards or departments, Condition 15 is simply not a coherent and discernible representation of this intent. The very purpose of a zoning decisions (such as ZBA Decision 2) is to inform the parties as to their rights and responsibilities -- not to perplex them with opaque, catch-all provisions. To that end, the “void for vagueness” doctrine exists to prevent zoning authorities from imposing arbitrary conditions that leave applicants unsure as to whether they are in compliance therewith due to a lack of clarity therein. E.g., Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) (“It is a basic principle of due process that an enactment is void for vaguness if its prohibitions are not clearly defined.”).

By conditioning zoning approval upon the Developers’ compliance with “any other applicable conditions”, the ZBA puts the Developers into a position wherein they would be in ongoing jeopardy of losing zoning approval for the Project even after construction of the Facility commences (or even completes). In theory, this open-ended requirement could be used to deprive the Developers of zoning approval for the Project if, at any point in the future, they were to fall afoul of any municipal regulation imposed upon their use of Locus -- no matter the duration of such violation or whether it were to be cured. Furthermore, Condition 15 is superfluous, because the Developers remain obligated to comply with any such regulations as would be applicable to their use of Locus, irrespective of whether Condition 15 were imposed or not. Accordingly, I find that Condition 15 is void for vagueness and is therefore unreasonable.

The Abutters’ Standing

Whether or not a party is “aggrieved” determines whether that partyhas standing to challenge a zoning decision. E.g., Marashlian v. Zoning Bd. of App. of Newburyport, 421 Mass. 719 , 721 (1996); see also G. L. c. 40A, § 17. A party is presumed to be “aggrieved”, within the meaning of G.L. c. 40A, § 17, if it is a “party in interest” -- a term defined as “the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . .” G. L. c. 40A, § 11; see also Marotta v. Bd. of App. of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of App. of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). Here, because the Abutters reside directly across Route 27 from Locus, I find that they are “part[ies] in interest” under G.L. c. 40A, § 17, and therefore are entitled to a presumption of standing in Case 2.

However, even if a party is presumed to have standing under G.L. c. 40A, § 17, this presumption is rebuttable. E.g., Standerwick v. Zoning Bd. of App. of Andover, 447 Mass. 20 , 33 (2006) (“Once a defendant challenges the [abutter’s] standing and offers evidence to support the challenge . . . the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the [abutter] from the presumption.” (quotation omitted)); see also Marinelli v. Board of App. of Stoughton, 440 Mass. 255 , 258 (2003) (defendant must proffer evidence “warranting a finding contrary to the presumed fact [of standing]”).

Once a party has successfully rebutted the presumption of standing, “the burden rests with the [abutter] to prove standing, which requires that the [abutter] establish -- by direct facts and not by speculative personal opinion -- that his injury is special and different from the concerns of the rest of the community.” Standerwick, 447 Mass. at 33 (quotation omitted); see also id. at 34 (“[The] presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by ‘throw[ing] upon his adversary the burden of going forward with evidence.’” (quoting Epstein v. Boston Hous. Auth., 317 Mass. 297 , 302 (1944))). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. Such credible evidence consists of:

both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.

Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005)

In sum, if the presumption of standing is rebutted, “individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Sq. Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93, rev. denied, 405 Mass. 1204 (1989); see also Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992) (plaintiff must establish a special and particular injury based upon direct facts), abrogated on other grounds by Marashlian, 421 Mass. at 724; Butler, 63 Mass. App. Ct. at 440 (same). If the abutter is unable to do so, his or her objection must be dismissed for lack of standing. is unable to offer evidence that tends to show that the plaintiff’s injury is unique, the case will not proceed on the merits. See Marinelli, 440 Mass. at 258. The three harms relative to standing that the Abutters have raised are potential traffic congestion (and, by implication, “public safety”), increased noise, and production of artificial light by the Sign. The Developers have submitted the testimony of Reffett, as well as the Traffic Studies and the Peer Review, to demonstrate that, in fact, the Abutters would not be adversely affected by the Project. The Developers also cite David’s deposition testimony, which, they claim, demonstrates that even David’s own testimony demonstrates the Abutters’ lack of standing.

The Traffic Studies and the Peer Review constitute expert evidence strongly suggesting that the traffic impact of the Project on Route 27 will be minimal and that there will be no realistic safety concerns -- provided the left turn lane the Developers have agreed to install (and which ZBA Decision 2 mandates) is installed. With respect to artificial light from the Sign, the Developers note that David’s own testimony establishes that the Abutters are only minimally aware of the effect that the Sign would have; further, the Developers point out that, pursuant to Condition 4 of ZBA Decision 2, the Sign may be lit only until 7:00 P.M. -- thus, for a large part of the year, the Sign will be lit only during daylight hours. With respect to noise from children playing, the Developers point to David’s testimony, wherein David acknowledged that noise was not a significant concern for his own property, and that his concerns were related not to his own property, but rather to “the neighborhood.” [Note 18] Further, the Developers note that the playground would be located on the far side of the Facility from the Abutters’ property, and would have a minimal impact thereupon -- which David also acknowledged.

In sum, I find that the Developers have rebutted the Abutters’ presumption of standing. Thus, the burden of demonstrating that the Project would uniquely affect the Abutters themselves (and their property) falls to the Abutters. I will address each of their three concerns (i.e., traffic, noise, and artificial light) in turn.

A. Traffic and Safety

It is undisputed that traffic will increase to some degree surrounding Locus during the hours of operation. However, that does not necessarily mean that such traffic would be the basis upon which the Project should not go forward. E.g., Am. Can Co. v. Milk Control Bd., 313 Mass. 156 , 160 (1943) (“Doubtless not every person whose interests may be in some remote way injuriously affected . . . is . . . a person ‘aggrieved.’”). Determining whether a project will adversely affect traffic conditions is a highly complicated endeavor, so determining “[t]raffic impact is a matter of expert testimony.” Hilltop Gardens Inv., LLC v. JMK Dev., LLC 13 LCR 202 , 206 (Mass. Land Ct. 2005).

Here, the Abutters submitted no expert testimony or traffic study as to the potential impact that traffic could cause to their property. When pressed to identify a specific harm that traffic would cause to the Abutters’ property, David was unable to do so, so he instead discussed several alleged traffic incidents that were unrelated to the Abutters or their property; he further stated that “[a]nything that affects the neighborhood affects my wife and myself”.

Especially in the absence of any expert evidence as to traffic impact, the Abutters’ failure to identify any actual harm that traffic could cause specifically to their property is fatal to their claim of harm. Moreover, in the face of two Traffic Studies and the Peer Review (all of which found minimal impact to traffic and no safety issues) the Abutters’ claims are simply too speculative to form the basis for standing. Thus, I find that the Abutters have failed to demonstrate that they have standing on the basis of the potential traffic impact of the Project on their specific property. [Note 19]

B. Noise

The next harm that the Abutters allege is that children playing on the proposed playground on Locus would cause unwanted noise. As noted, supra, with respect to traffic, while some increased noise from developing Locus would seem to be inevitable, that does not necessarily mean that such noise should be the basis upon which the Project should not go forward. E.g., Am. Can Co., 313 Mass. at 160.

Here, as with traffic impacts, the Abutters submitted no expert evidence of any kind suggesting that noise levels will be disruptive to their Property. Rather, the Abutters only offered David’s testimony, in which he opined that children playing “may” cause noise. However, he acknowledged that the playground on Locus would be located on the far side of the Facility from the Abutters’ property, and that any such noise would not significantly affect his property. Further, he stated that, in fact, his concerns as to noise were related not to his own property, but rather to “the neighborhood. I’m not specifically talking about me.” [Note 20]

Especially in the absence of any expert evidence as to noise impact, the Abutters’ failure to identify any actual harm that noise could cause specifically to their property is, once again, fatal to their claim of harm. Moreover, in the face of two Traffic Studies and the Peer Review (all of which found minimal impact to traffic and no safety issues) the Abutters’ claims are simply too speculative to form the basis for standing. Even if the Abutters’ concerns as to noise were well-articulated, it must be noted that the Facility will be in operation almost exclusively during regular business hours (“6:00 a.m. to 6:30 p.m.”) only, and after hours use of the Facility must be strictly limited -- as specified by ZBA Decision 2 (Conditions 4 and 10). Thus, there is no reasonable expectation that the Project will produce any appreciable amount of noise at times where quiet would be expected. Moreover, Locus and the Abutters’ property are both located along Route 27, a state highway, which itself would likely be the source of far more noise than children playing on the far side of the Facility.

Thus, it appears that even David acknowledges that the noise impact on the Abutters’ property will be minimal at best, and that the Abutters themselves would not be uniquely affected by noise. Accordingly, I find that the Abutters have failed to demonstrate that they have standing on the basis of the potential noise of the Project on their specific property.

C. Artificial Light

The next harm that the Abutters allege is that the artificially lit Sign (which, as proposed, would sit at the intersection of the Locus driveway and Route 27) would adversely affect their property -- which David claimed “would aggravate me a little bit”. In his deposition testimony, however, David acknowledged that the Porters were not even aware of what hours the Sign would be illuminated and the direction in which light from the Sign would shine. He also acknowledged that multiple other properties in the area (including a nearby Dairy Queen restaurant that he owns) maintain illuminated signs, and that the Sign would be located more than 110 feet from his house.

Even if the Abutters had articulated concrete concerns as to artificial light, these concerns prove to be unfounded, since, pursuant to Condition 4 of ZBA Decision 2, lighting for the Project (except for security) will be permitted only until 7:00 P.M. Thus, the Sign will be lit almost exclusively during daylight hours only, during which time there is simply no reasonable expectation that the Project will produce any appreciable amount of artificial light at times that would meaningfully affect the Abutters or their property. Even if light from the Sign did actually affect the Abutters, the Abutters have not demonstrated that such increased artificial light (to the extent it would exist at all) would uniquely affect them. Rather, all the Abutters offer is that “[a]nything that affects the neighborhood affects [them]”.

In sum, therefore, the Abutters’ concerns as to artificial light from the Sign are not only speculative and unspecific to the Abutters themselves, their concerns prove to be unfounded. Accordingly, I find that the Abutters have failed to demonstrate that they have standing on the basis of the potential artificial light from the Sign on their specific property. Further, having found that the Abutters have failed to demonstrate harms relating to all three of the harms they claimed (i.e., traffic, noise, and artificial light), I find that they lack standing to appeal ZBA Decision 2.

The Abutters’ Objections to ZBA Decision 2

Notwithstanding the court’s finding that the Abutters lack standing, I will nonetheless discuss the substance of their objections to ZBA Decision 2, since, as the finding of no standing should suggest, even if the court had found standing, the Abutters’ objections to ZBA Decision 2 fail on the merits for the same reason as their claims to standing likewise fail, since the alleged harms claimed by the Abutters are unsupported by the factual record and/or would not apply specifically to the Abutters and their property. [Note 21]

In their summary judgment brief, the Abutters note that they are “acutelyaware” of the Dover Amendment, and they acknowledge that the use of Locus for a day care facility cannot be disallowed outright by the ZBA (as found in Land Court Decision 1). Rather, they object that the conditions imposed by the ZBA “are unreasonably lax and do not go far enough in protecting [the Abutters’] property from excessive noise, traffic and light as well as the threat to public safety.” They also claim, in passing, that the size of the Facility “is not in keeping with the residential flavor of their neighborhood” -- a claim that is not supported by any evidence in the record, including David’s testimony. Yet, despite the fact that ZBA Decision 2 sets forth fifteen specific conditions designed to protect the community and to minimize the effect of the Project upon its neighbors, the Abutters offer no concrete suggestion as to what conditions upon the Project they would find to be satisfactory; rather, they note only that they would prefer for the Facility to be “much smaller”.

As discussed, supra, each of the concerns claimed by the Abutters (i.e., noise, traffic/safety, and light) rest entirely on their own speculation as to the effect the Project may have. No expert evidence was submitted to support these claims in any way, nor is there anything in the record to suggest that these claimed harms would affect the Abutters uniquely. Indeed, David’s testimony suggests that the Abutters commenced this appeal of ZBA Decision 2 out of an interest to protect what they see as the adversely affected interests of “the neighborhood”. They may even have brought this case upon the inducement of a non-party who himself lacked standing to bring it. Even if the Abutters had articulated concrete, non-speculative concerns as to impacts of the Project specifically upon the Abutters’ property, without any expert evidence, David’s testimony, by itself, is simply insufficient to substantiate these claimed harms in the face of the expert evidence submitted by the Developers. Moreover, the Abutters fail to demonstrate that conditioning approval of the Project on a reduction in size of the facility would actually address their claimed harms.

In sum, it is clear that the Abutters’ claim that the ZBA acted wantonly and arbitrarily in declining to issue further use restrictions upon the Project has no legal merit. Thus, even if they did have standing to appeal ZBA Decision 2, their appeal of same would be dismissed on the merits.

Conclusion

Based on the foregoing, the Developers’ motion for summary judgment is hereby ALLOWED to the extent (a) that ZBA Decision 2 is overturned insofar as it imposed the portion of Condition 4 purporting to cap enrollment at the Facility and Condition 15, and (b) that the Abutters lack standing in Case 2, whichis therefore DISMISSED, with prejudice. Defendants’ cross- motion for summary judgment is ALLOWED solely to the extent that Condition 3 in ZBA Decision 2 is upheld, as amended.

Judgment in Case 1 and Case 2 to enter accordingly.