Plaintiffs in this case appeal under G.L. c. 40A, §17 from a decision of Defendant, the Rochester Board of Appeals (the ZBA), that denied an appeal of the Rochester Planning Boards site plan approval for a bituminous concrete facility (the Asphalt Plant) proposed by Defendant Edgewood Development Company, LLC (Edgewood). In the Complaint, Plaintiffs, who either own or reside in residences located on other, industrially-zoned land near the site of the proposed Asphalt Plant, seek annulment of the ZBA decision upholding the site plan approval which, they claim, violated the Town of Rochesters Zoning By-law (the By-law) in several respects.
During the pendency of this case, Edgewood and Plaintiffs cross-moved for summary judgment on Plaintiffs claims concerning noise generated by operations at the Asphalt Plant. In particular, Plaintiffs argued that the site plan approval was improper because (1) the proposed Asphalt Plant will generate noise in excess of limits set in State noise regulations, rendering the proposed Asphalt Plant a prohibited use under the By-law, and (2) Edgewood failed to demonstrate sufficient noise mitigation measures to bring the proposed facility into compliance with State noise standards, as required under the site plan review provisions of § XVI(1.4)(14) of the By-law. [Note 1]
By decision dated March 18, 2014, and subsequently amended on April 18, 2014, the court entered partial summary judgment in favor of Edgewood, rejecting Plaintiffs claim that noise levels from the proposed Asphalt Plant would be so inherently detrimental and offensive that the use must be deemed prohibited under the By-law, and also finding that the conditions attached to the site plan approval properly required compliance with State sound regulations. Left for trial were Plaintiffs additional claims that (1) the proposed Asphalt Plant is a prohibited use because it will tend to reduce property values, and will be detrimental or offensive because of traffic safety, lighting, visual, and odor impacts; [Note 2] and (2) due to these same impacts, the site plan for the Asphalt Plant did not comply with the By-laws site plan review standards. Also left for trial was the question of whether the Plaintiffs have the requisite standing to maintain their G.L. c. 40A, § 17 appeal.
A de novo trial was held on September 23 and 24, 2014. The parties stipulated to thirty-seven (37) agreed facts in advance. Nineteen (19) agreed exhibits and five (5) additional exhibits were entered into evidence during the trial. Three (3) witnesses testified for Plaintiffs: Plaintiff Michael DAcci, a long-time owner and resident in the Industrial District, whose residential parcel directly abuts the proposed Asphalt Plant site; Dr. Kim Eric Hazarvartian, a certified professional traffic operations engineer; and Webster A. Collins, a licensed real estate appraiser. Dr. Hazavartian and Mr. Collins were both qualified and admitted as experts for Plaintiffs. Three (3) witnesses testified for Defendants: Timothy D. Higgins, vice president of development for Edgewood; Carl Adamo, a registered professional civil engineer, who prepared the traffic analysis that accompanied Edgewoods site plan application; and Rose Perrizo, a certified commercial real estate appraiser. Mr. Adamo and Ms. Perrizo were both qualified and admitted as experts for Defendants.
On October 30, 2014, the court took a view of the area in which the Edgewood site is located, including the residences located at 119 and 113 Kings Highway, and the property at 83 Kings Highway - the site of Rochester Bituminous Products, Inc., an existing asphalt batching plant owned and operated by a Todesca family entity (Rochester Bituminous).
Following receipt of the trial transcripts and the parties respective Proposed Findings of Fact and Rulings of Law, the court took the matter under advisement on January 9, 2015. Now, as discussed below, I find and rule that the ZBA did not exceed its authority when it declined to reverse the Rochester Planning Boards site plan approval decision, including the Planning Boards finding that the proposed Asphalt Plant is a permitted use in the Industrial District. Accordingly, judgment shall enter for Defendants, dismissing Plaintiffs appeal.
II. FINDINGS OF FACT
Based on the pleadings, the parties statement of agreed facts, the admitted exhibits, the trial testimony, and my direct observations during the view, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues.
The Plaintiffs Residential Properties
Plaintiffs Michael and Carol DAcci, husband and wife, own and reside in a single-family home on an approximately one-acre lot located at 119 Kings Highway in Rochester, Massachusetts (the DAcci Property). Prior to the DAccis buying their home in 1971, the Town of Rochester had designated its first and only industrial zoning district (the Industrial District) in 1969. The Industrial District includes the DAcci Property, as well as the residential properties owned or occupied by the other Plaintiffs in this case. [Note 3]
The DAcci Property is situated very near to the intersection of Kings Highway and Route 28, a state highway also known as Cranberry Highway. On the afternoon of the view, the court observed steady truck traffic along Kings Highway and the nearby Route 28. A substantial number of the trucks exited from Route 28 onto Kings Highway, passing directly in front of the DAcci property, and continued in the direction of Rochester Bituminous. The noise generated by the traffic, particularly by tractor trailers, dump trucks, and similar heavy commercial vehicles, was very noticeable when standing in the DAcci yard.
Next door to the DAcci Property, and also abutting the proposed Asphalt Plant site, is another single-family residential property located at 113 Kings Highway, owned by Paul Murphy, Trustee of the Willard Realty Trust. The Willard Realty Trust acquired this one-acre property during the time period when the Asphalt Plant site plan was still under review by the Planning Board. The two-bedroom residence located at 113 Kings Highway was built in 1971, two years after the establishment of the Industrial District. [Note 4] The Willard Realty Trust has leased out the 113 Kings Highway property to residential tenants. However, Plaintiff Jeffrey Mason, who was a tenant at 113 Kings Highway at the time this suit was filed, was no longer a tenant at the time of trial.
Plaintiffs Paul and Albert Todesca, Trustees of the Todesca Realty Trust, own the two residential properties situated at 35 Kings Highway and 19 Kings Highway. Neither of these properties directly abut the proposed Asphalt Plant site, nor do they abut any abutting properties within 300 feet of the proposed Asphalt Plant site. Plaintiffs Brandon and Krystle Empey rent the 35 Kings Highway property. Plaintiffs Emma Galvin and Sean Somers, who were tenants at 19 Kings Highway at the time this suit was filed, no longer reside there. At trial, there was no evidence presented of any expected harms to the properties at 35 and 19 Kings Highway attributable to the proposed Asphalt Plant.
The Industrial Uses
During the 45+ years since the area was first zoned industrial in 1969, a number of industrial uses have been operated in the Industrial District. Among the currently operating industrial uses is the Southeastern Massachusetts Resource Recovery Facility (SEMASS), which processes solid waste primarily into fuels and energy and which, at the time of trial, had been located in the neighborhood for over twenty (20) years. SEMASS is located approximately one-half mile northwest of the DAcci property and is accessed from Route 28. The SEMASS waste conversion stack can be seen from the DAcci property, particularly in the winter months when the trees have lost their leaves. During the view, the stack was only partially visible from the DAcci Property.
Rochester Bituminous, an asphalt batching plant, is another prominent industrial use that directly abuts the Asphalt Plant site. Located on 20+ acres, with a site entrance about a quarter of a mile southeast down Kings Highway from the DAcci property, Rochester Bituminous has been processing concrete and asphalt at that location for approximately twenty (20) years. During the courts view, there was a significant amount of equipment-related noise on the Rochester Bituminous property. That equipment noise was not easily discernible above the traffic noise when standing on the residential properties at 113 and 119 Kings Highway.
On the opposite side of Kings Highway from the DAcci property is the entranceway to a regional municipal refuse transfer station. Located between the DAcci property and SEMASS, is a parcel identified as the Ruggles property, which is used for outside storage of a variety of products including septic tanks and concrete blocks. Located on the north side of Route 28, across from the SEMASS driveway, is Shea Concrete Products, which uses the waste products processed at SEMASS to manufacture concrete blocks, some of which are stored on the Ruggles property. Northwest on Route 28 is Costello Dismantling, a facility that deconstructs materials from old buildings. Further north, located near Interstate 495, is the United Waste facility, which processes disposal of used refrigerators, stoves, and other household appliances.
The Asphalt Plant
Sometime prior to November 18, 2010, Edgewood entered into a purchase and sale agreement to purchase approximately five (5) acres in Rochesters Industrial District to use for a bituminous concrete facility. The site is comprised of three (3) adjoining parcels of land located off Kings Highway near state highway, Route 495, situated to the rear of the residential properties at 119 Kings Highway and 113 Kings Highway, and also adjacent to Rochester Bituminous. On November 18, 2010, Edgewood applied to the Rochester Planning Board for approval of its site plan for the Asphalt Plant.
As shown on the site plan, access to the proposed Asphalt Plant would be via a new, 18- foot wide driveway from Kings Highway, located approximately 180 feet from the southeasterly corner of the 113 Kings Highway lot, and approximately 400 feet from the southeasterly corner of the DAcci Property (119 Kings Highway). According to Edgewoods site plan, the Plant operations and equipment are to be located approximately 50 feet from the rear property line of 113 Kings Highway, and 60 to 80 feet from the rear property line of the DAcci Property, on a flat area that is approximately four feet higher than the rear property line at 113 Kings Highway, and extends from 10 to 20 feet higher than the rear property line at 119 Kings Highway. The site plan depicts an undisturbed vegetated area of 40+ feet in width to be maintained on the sloped area of the Asphalt Plant site, adjacent to the rear boundaries of 113 and 119 Kings Highway. The existing trees in that area will be supplemented with evergreen plantings. A concrete block wall, ranging in height from 8 to 15 feet, is to be constructed as a sound and visual barrier surrounding the outside service area where materials bins and fuel storage tanks are to be located. None of the parking, loading, or driveway areas at the Asphalt Plant site are adjacent to the residential properties.
Applicable Sections of the By-law
The provisions of the By-law governing the Industrial District are set forth in Section IV. With certain limited exceptions not pertinent here, [m]anufacturing, industrial or commercial uses including processing, fabrication, assembly and storage of materials are permitted by right in the Industrial District, provided that no such use is permitted which would be detrimental or offensive or tend to reduce property values in the same or adjoining district. By-law § IV(D)(1). Also permitted on lots with houses in existence at the time of passage of this by-law, are all uses permitted in the Agricultural-Residential District, including single family dwellings. [Note 5] By-law §§ IV(D)(5), and VIII(C). Otherwise, single-family residential uses are not allowed in the Industrial District either by right or by special permit. Pursuant to By-law § IV(C)(1), the site plan review and approval process detailed in By-law § XVI applies to all new development in the Industrial District.
According to the Procedures and Decision provisions governing site plan review in By- law § XVI(1.9)(3), the Planning Board may take one of two actions with respect to an application for site plan approval: (a) if the Planning Board finds that the proposed development is in conformance with the By-law, [Note 6] the Planning Board shall approve the site plan and, in doing so, may impose conditions, limitations and safeguards which shall be part of such approval; or (b) the Planning Board shall reject the site plan if (1) it does not comply with the By-law, (2) the application is incomplete, (3) it is so intrusive on the needs of the public in one regulated aspect or another that rejection by the Board would be tenable because no form of reasonable conditions can be devised to satisfy the problem with the plan, or (4) the applicant has not met the standards of review and reasonably addressed the conditions outlined in Section 1.4.
Section XVI(1.4), entitled Standards for Review, states that [s]ite plan approval is designed to provide a balance between landowners rights to use his land with the corresponding rights of abutters and neighboring landowners to live or operate businesses without undue disturbance (e.g. noise, congestion, smoke, dust, odor, glare, stormwater runoff, etc.). As pertinent to the claims remaining for trial, that Section further provides:
Site Plan approval shall be granted upon determination by the Planning Board that the following considerations [Note 7] have been reasonably addressed by the applicant. The Planning Board may impose reasonable conditions, at the expense of the applicant, to secure this result . New building construction or other site alteration shall be designed in the site plan, after considering the qualities of the specific location, the proposed land use, the design of the building form, grading, egress points and other aspects of the development, so as to:
7. Maximize pedestrian and vehicular safety both on the site and egressing from it; .
By-law § XVI(1.4)(7) (emphasis added). [Note 8]
The Site Plan Approval and ZBA Appeal
Edgewood submitted its site plan review application for the proposed Asphalt Plant on November 18, 2010. The Planning Board opened a public hearing on Edgewoods application on December 14, 2010 and, after nine hearing sessions commencing in January, 2011, closed the public hearing on May 17, 2011. The Planning Boards comprehensive, nine-page written decision issued on May 24, 2011, recites the Boards unanimous vote determining that the proposed Asphalt Plant is a permitted use under By-law § IV(D)(1), and approving Edgewoods site plan subject to forty-three (43) conditions designed to regulate noise, dust, fumes, visual and traffic impacts, including six (6) conditions specifically related to traffic impacts, three (3) specifically related to noise impacts, and three (3) related to dust and odor impacts.
The DAccis, Paul Todesca, and the Empeys appealed the Planning Boards site plan decision to the ZBA pursuant to By-law § XVI(1.9), which provides in relevant part:
Persons aggrieved by a site plan decision may appeal to the board of appeals pursuant to the provisions of M.G.L., Chapter 40A, Section 15: thereafter a person aggrieved by the board of appeals decision may appeal to court under the provisions of M.G.L., Chapter 40A, Section 17.
Following a public hearing, on February 9, 2012, the ZBA unanimously denied the appeal, declining to reverse the Planning Boards site plan decision, including the determination that the proposed Asphalt Plant is a permitted use in the Industrial District. The Plaintiffs timely brought this G.L. c. 40A § 17 appeal of the ZBAs decision.
Only a person aggrieved may challenge a decision of a zoning board of appeals. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a person aggrieved if s/he is 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; Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986).
A party in interests presumption of standing as an aggrieved person may be rebutted. Marashlian, 421 Mass. at 721; see also Watros v. Greater Lynn Mental Health and Retardation Assn, Inc., 421 Mass. 106 , 111 (1995). A party challenging the presumption of aggrievement must offer evidence warranting a finding contrary to the presumed fact. Kenner v. Chatham Zoning Bd. of Appeals, 459 Mass. 115 , 118 (2011) (quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006) (internal quotation omitted)). If standing is challenged, the jurisdictional question is decided on all the evidence with no benefit to the plaintiffs from the presumption. Marashlian, 421 Mass. at 721 (quoting Watros, Inc., 421 at 111). Without the presumption of aggrievement, 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 Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989); see also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (To show an infringement of legal rights, the plaintiff must show that the injury flowing from the boards action is special and different from the injury the action will cause the community at large.) To assert a plausible claim, a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. When properly challenged, standing is a question of fact for the trial judge to resolve on all the evidence. Id.
Here, only Paul Murphy, as Trustee of Willard Realty Trust, and Carol and Michael DAcci have presumed standing in this case, as they are the owners of properties directly abutting the site of the proposed Asphalt Plant. Notably, during his opening statement, Edgewoods attorney remarked to the court that no one else except the DAccis have standing in this case. Tr. I, p. 41-42, lines 41:22-42:4. [Note 9] Given that Edgewood did not challenge the DAccis standing at trial, [Note 10] the court need not reach the issue of whether the remaining Plaintiffs have standing. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 698 n.10 (2012) (Only one of the parties in a zoning appeal must be an aggrieved person under G.L. c. 40A to establish standing to challenge a zoning decision.)
Standard of Review
When a party appeals under G.L. c. 40A § 17, the court shall hear all evidence pertinent to the authority of the board and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board. The court conducts a de novo review of the facts, and gives no evidentiary weight to the boards findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). Nonetheless, the courts 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. Id. (quotations omitted).
However, site plan review differs slightly from other types of zoning appeals. Where, an as-of-right use is proposed and subjected to site plan review, [Note 11] the reviewing board does not have discretionary power to deny . . . [site plan approval], but instead [is] limited to imposing reasonable terms and conditions on the proposed use. Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281-82 (1986) (quoting SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 106 n.12 (1984). Site plan review under Rochesters By- law comports with the Prudential Ins. Co. standard. By-law § XVI(1.3) (3) (site plan denial permitted where it is so intrusive on the needs of the public in one regulated aspect or another that rejection by the Planning Board would be tenable because no form of reasonable conditions can be devised to satisfy the problem with the plan.).
Here Plaintiffs contend on appeal that the ZBAs refusal to reverse the Planning Boards site plan decision was erroneous because (1) the proposed Asphalt Plant would be detrimental or offensive or tend to reduce property values in the same or adjoining district and therefore is not an as-of-right permitted use in the Industrial District under By-law § IV(D)(1); and (2) the site plan does not comply with all of the standards for site plan approval set forth in By-law § XVI(1.4), and there are no reasonable conditions that could have been devised to satisfy the problems with the plan.
As will be discussed in more detail below, the weight of the evidence does not support a finding that that the ZBAs refusal to reverse the Planning Boards site plan decision was based on a legally untenable ground or was arbitrary or capricious. First, while the testimony focused on alleged adverse impacts to the DAcci Property due to increased truck traffic, visual intrusion, truck noise, exterior lighting, and outside noise during nighttime operations, there was no evidence that an asphalt plant is a per se offensive or detrimental use, or that Edgewoods proposed Asphalt Plant has any characteristics that make it a peculiarly offensive or detrimental use. Nor was there any evidence that an asphalt plant (or the proposed Asphalt Plant) will tend to reduce property values in the Industrial District (or in any adjoining district), as opposed to values of only one or two nearby residential properties in the district. Lacking such evidence, the court does not agree with Plaintiffs that the ZBA, in affirming the Planning Board, erred in determining that the proposed Asphalt Plant is a permitted use in the Industrial District pursuant to § IV(D)(1).
Second, the evidence does not establish that the site plan decision complained of was inconsistent with the By-laws standards for site plan review. The court has previously determined in its summary judgment decision that the site plan decision adequately addressed the § XVI(1.4)(14) standard for sound levels. Plaintiffs only remaining argument in regard to the site plan deficiency is that Edgewoods site plan does not maximize pedestrian and vehicular safety as set forth in § XVI(1.4)(7). [Note 12] Here too, Plaintiffs failed to establish that the site plan was so intrusive on the needs of the public in one regulated aspect or another that the conditions devised by the Planning Board and imposed in their approval decision could not satisfy the problem.
Under By-law § IV(D)(1) [m]anufacturing, industrial or commercial uses including processing, fabrication, assembly and storage of materials are permitted by right in the Industrial District, provided that no such use is permitted which would be detrimental or offensive or tend to reduce property values in the same or adjoining district. Plaintiffs argue that, under this provision, the Asphalt Plant is not a permitted use because it would be detrimental or offensive to, or tend to reduce the property value of the DAcci Property. Mr. DAcci testified that he anticipates harmful effects on his residential property in the nature of increased truck traffic in front of his property; noise from outside industrial activity conducted only sixty to seventy (60-70) feet away from his backyard; the unsightliness of the proposed concrete barrier wall; disturbance from exterior noise and lights during periodic, overnight operations of the Asphalt Plant; [Note 13] and a reduction in his property value. However, Plaintiffs experts testified as to only two of these claimed harms truck traffic impacts, and reduction in property value.
Detrimental or Offensive
At bottom, even if Mr. DAcci is correct about the harms he expects to suffer once the Asphalt Plant is operating, there is no evidence that such harms are inherent in an asphalt plant use as opposed to any other industrial use. I reject Plaintiffs position that, if any industrial use which might otherwise be allowed in the Industrial District has the potential for being offensive or detrimental to a nearby residence, it must be deemed a prohibited use under the language in By-law § IV(D)(1). If that were the case, residential property owners would have veto power over each industrial use proposed for the District. Such a situation is not contemplated by the By-law, and would in any event be inconsistent with the uniformity requirements of G.L. c. 40A, § 4.
Moreover, I cannot ignore that the Plaintiffs purchased residential properties already located in the Industrial District, thereby accepting the attendant risk that a variety of industrial uses would continue to operate and further develop on the land around them, including on the land located adjacent to their own properties. The DAccis purchased their house at least two years after the Industrial District was established. The house at 113 Kings Highway was built two years after the property was zoned Industrial, and Willard Realty Trust acquired the 113 Kings Highway property after the site plan review process for the proposed Asphalt Plant was already underway. The evidence also shows that heavy industrial uses, including another asphalt plant owned by a Todesca family entity, have been permitted to operate in the Industrial District for many years. Yet there is no evidence that the Asphalt Plant proposed by Edgewood would be appreciably different, or more intense in character, than any of these existing industrial uses. Indeed, the evidence indicates that the proposed Asphalt Plant would be a smaller and less intense bituminous processing use than its neighbor, Rochester Bituminous. [Note 14]
There is also no evidence that addition of the proposed Asphalt Plant into the area would tend to reduce property values in the Industrial District or an adjoining district. Mr. DAcci testified to his general belief that the Asphalt Plant would cause a reduction in the value of his property. He could give no specifics, other than his personal opinion, as to the basis for his belief, or as to how much the value would be reduced. Plaintiffs appraisal experts opinion as to reduction of property values was limited to the residential properties at 113 and 119 Kings Highway and was accordingly ineffective to show any tendency to reduce property values in the Industrial District as a whole. Mr. Collinss opinion apparently was also based on an assumption that the highest and best use of 113 and 119 Kings Highway is residential, and was without regard to the fact that these residentially-used properties are exceptions in an area that is zoned and already developed for industrial uses. Consequently, there was no testimony about the values of the non-residential properties in the Industrial District, about the values of these residential properties if converted to industrial uses, or about the property values in any adjoining district.
Even so, I reject Mr. Collins opinions and conclusions in their entirety because they are based on an unreliable methodology. Mr. Collins opined that the DAcci property would suffer a reduction in property value of between 16 and 28% due to three impairment conditions caused by the Asphalt Plant: (1) truck traffic, (2) noise, and (3) visual intrusion. To analyze the effect of truck traffic impairment, he compared the price-per-square-foot sales prices of impaired and unimpaired residences based on their proximity to a concrete plant in Marshfield, which generated a lot of truck traffic. [Note 15] To analyze the effect of noise, he compared the impaired and unimpaired price-per-square-foot sales prices of residences based on their proximity to the runway at the Marshfield Airport. To analyze the effect of visual intrusion, he compared impaired and unimpaired price-per-square-foot sales prices of residences before and after the installation of a large billboard structure in Quincy.
Mr. Collins testified that, in each case, he found an overall lower price-per-square-foot for the impaired as compared to the unimpaired sales. Specifically, he testified that impaired sales prices for homes near the concrete plant in Marshfield were approximately sixteen percent (16%) lower than the sales prices for unimpaired homes farther away; that impaired homes closer to the Marshfield Airport sold for approximately twenty-eight percent (28%) less than their counterpart unimpaired homes farther away; and that impaired sales prices for homes near the Quincy billboard were approximately sixteen percent (16%) lower than the sales prices unimpaired homes. Mr. Collins opined that the lower sales price-per-square-foot for the impaired sales observed in these scenarios were solely attributable to the impairment condition he identified. He also opined that the impaired value percentages observed in these three different scenarios would apply, without variation, to the DAcci Property if the proposed Asphalt Plant were built behind it, reducing the value of the DAcci Property by between sixteen to twenty-eight percent (16-28%). [Note 16]
Defendants identified several infirmities in Mr. Collinss analysis. First, Mr. Collins provided no reasonable basis to equate the value impairment effect of an asphalt plant on residences located within an Industrial District in Rochester, with the value impairment effect of a concrete plant or an airport in Marshfield, or a billboard in Quincy, all in apparently residentially-developed areas.
Second, by merely comparing price-per-square-foot of the home sales that he deemed impaired or unimpaired, Mr. Collins did not account for other factors that may (and likely do) contribute to a homes sale value, such as recent renovations and updates, proximity to public transportation or other neighborhood conveniences, the character of the surrounding neighborhood, the size of the lot, or other curb appeal factors. In this regard, I do not credit Mr. Collinss assumption (or deduction) that a homes proximity to an impairment condition is the sole explanation for its reduced sales price.
Third, even among the impaired and unimpaired home sales that Mr. Collins identified, he left unexplained several data points that did not fit with his hypothesis. In the case of the Quincy billboard scenario, for example, two of the impaired homes sold after the installation of the billboard at a higher price-per-square-foot than unimpaired homes sold before the billboard was erected. [Note 17] And in the Marshfield Airport scenario, one impaired homes sales price-per-square-foot was higher than that of some of the homes farther from the runway. Mr. Collins had no explanation for these outliers.
Fourth, when Mr. Collins carried over his conclusions to the DAcci Property, he also carried over his assumption that the Asphalt Plant would be the sole impairment factor impacting the home value. Such an assumption is implausible in view of the circumstances. While my view revealed that the DAccis keep an attractive, well-maintained residence, the simple reality is that their Property is located within an Industrial District, in close proximity to existing heavy industrial uses, and is already impacted by noisy truck traffic operating on the roadways near and adjacent to their Property, as well as odors from the existing asphalt plant nearby. Treating the DAcci Property as a currently unimpaired property under existing conditions completely undermines the value of Mr. Collinss opinion. [Note 18]
Finally, turning to the directive in § IV(D)(1), I again point out that the By-law does not speak solely to uses that might reduce property values for individual, residential properties located in the Industrial District. Instead, the By-law plainly looks to whether the subject use would tend to reduce property values in the Industrial District, as a whole.
On this record, there is no evidence from which to conclude that the proposed Asphalt Plant will tend to reduce property values in the Industrial District as a whole, particularly in view of the fact that this District is already developed with heavy industrial uses, including another asphalt plant. Even accepting that the DAcci Property, being uniquely situated adjacent to the proposed Asphalt Plant site, may suffer some reduction in its value for residential use, it may be that the highest and best use of the DAcci property, from a valuation perspective, is as an industrial use. Indeed, there was evidence that assessed values in the Industrial District, including the value of the DAcci Property, have continued to rise even as new industrial uses have been added in the District. And both Edgewood and Todesca offered to purchase the DAcci property in 2011 for its then-assessed value [Note 19] - a price that Mr. DAcci admitted was consistent with fair market value. [Note 20]
For all these reasons, I do not agree with Plaintiffs that the proposed Asphalt Plant is a detrimental or offensive use, or that it would tend to reduce property values in the same or adjoining district. Consequently, I find that the proposed Asphalt Plant is a permitted use in Rochesters Industrial District.
Site Plan Standards
The site plan review process set forth in Rochesters By-law is consistent with that discussed by the Massachusetts Appeals Court in Prudential Ins. Co., 23 Mass. App. Ct. 278 . Where, as here, an as-of-right use is proposed, the By-law does not give the Planning Board discretionary power to deny site plan approval, but instead limits the Planning Board to imposing reasonable terms and conditions on the proposed use. See id. at 281-82. In such circumstances, the site plan review requirement is imposed as a regulation of a use rather than its prohibition. Id. at 282 (quoting Y.D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 , 31 (1970)). Thus, when reviewing a decision approving a site plan with conditions for an as- of-right use, the standard of review is one of reasonableness. See Y.D. Dugout, Inc., 357 Mass. at 31. In contrast, to determine whether a board is obliged to deny a site plan for an as-of-right use, the court is essentially to examine the proposal to see if the [claimed] problem [with the site plan is] so intractable that it could admit of no reasonable solution. Prudential Ins. Co., 23 Mass. App. Ct. at 283; By-law § XVI(1.3)(3) (site plan denial permitted where it is so intrusive on the needs of the public in one regulated aspect or another that rejection by the Planning Board would be tenable because no form of reasonable conditions can be devised to satisfy the problem with the plan.). Here, the evidence does not support a finding that there are problems with the site plan that have not been reasonably addressed or that require conditions beyond those imposed in the Planning Boards site plan approval decision.
Traffic Safety Standard
Plaintiffs contend that Edgewoods site plan should have been rejected because the plan did not adequately maximize vehicular and pedestrian safety as required by By-law § XVI(1.4)(7) and because no form of reasonable conditions can be devised to satisfy the problem with the plan. By-law § XVI(1.3)(3). More specifically, Plaintiffs point to the estimated 360 daily truck trips generated by the Asphalt Plant, and argue that the site design cannot accommodate enough trucks to prevent overflow queuing onto Kings Highway, thereby creating an unsafe condition by compromising the two-way traffic capacity of Kings Highway. Also, Plaintiffs contend that the site plans internal traffic circulation and parking arrangement are unworkable and will contribute to the queuing problem.
Plaintiffs rely upon the testimony of their expert, Dr. Hazarvartian, who testified that the trucks entering the Asphalt Plant site daily to deliver raw materials will have difficulty maneuvering past the trucks queuing to pick up asphalt deliveries on the proposed 18-foot wide driveway. He opined that this maneuvering difficulty could create or exacerbate a queuing problem, which could cause a spillover of queuing trucks onto Kings Highway. Based on his assumption that the average truck visiting the Asphalt Plant was 9-feet wide by 52-feet long, Dr. Hazarvartian concluded that if more than six trucks needed to queue at the site, the seventh truck would spill over onto Kings Highway, causing a potentially unsafe traffic condition. Furthermore, based on a 3-minute long assumed average loading time, Dr. Hazarvartian calculated that a 21-25 minute delay in loading at the Asphalt Plant would create a seven-truck queue during the normal flow of truck arrivals. Finally, Dr. Hazarvartian analyzed Edgewoods Temporary Truck Parking Plan, which was created by Edgewood to address possible queuing and spillover, and testified that it was unworkable. Specifically, he opined that the 18-foot wide driveway was of insufficient width to safely accommodate truck passing maneuvers or two- abreast queuing, and, additionally, that trucks attempting to maneuver to the rear of the Asphalt Plant site in accordance with the Temporary Truck Parking Plan would have to execute complicated traffic movements, including a 180-degree turn, to form a secondary loading queue.
Defendants counter that the hypothetical queuing spillover scenario presented by Dr. Hazarvartian is speculative and that Dr. Hazarvartian relied on assumed facts provided by the Todesca Plaintiffs and not on an independent study of proposed site conditions. [Note 21] They point out that Dr. Hazarvartian, who had never previously studied or offered testimony concerning the operations of a bituminous facility, had no independent knowledge of the likelihood of a truck breakdown or a delay in loading at an asphalt plant. Additionally, Edgewoods vice president, Mr. Higgins, testified that at least seventy percent (70%) of the trucks visiting the Edgewood Asphalt Plant would be Edgewood-controlled meaning the drivers work directly for Edgewood or a related entity and are monitored and communicate in real-time with employees of the Asphalt Plant during work operations and thus could be warned off from the site in the event of a truck breakdown or loading delay at the site. Mr. Higgins also testified about Edgewoods involvement with a similar bituminous facility sited in Norwood, Massachusetts on a 3.5-acre site (smaller than the proposed Asphalt Plant), which has not suffered the queuing problems predicted by Dr. Hazarvartian. [Note 22], [Note 23]
On balance, I am not persuaded that Edgewoods site plan, or the Temporary Truck Parking Plan presented as part of the site plan review, will result in the vehicular safety issues hypothesized by Dr. Hazarvartian, except in unusual circumstances. Even if such unusual circumstances were to arise, I credit Mr. Higginss testimony that Edgewood has the capacity to control the majority of the trucks visiting the Asphalt Plant and therefore could direct trucks away from the site if the hypothetical events posited by Dr. Hazarvartian were to occur.
Moreover, the site plan decision conditions the approval on compliance with six (6) traffic-related conditions squarely aimed at [m]aximiz[ing] pedestrian and vehicular safety both on the site and egressing from it. This includes a condition that [t]here shall be no truck parking allowed along Kings Highway and the applicant shall coordinate with the Town to install the necessary signage to enforce this restriction. Edgewood is also required to furnish and install a No Right Turn sign opposite the exit driveway on Kings Highway, angle the driveway to accommodate traffic entering from the north, coordinate with the town on installing Trucks Entering and No Jake Breaks signs along Kings Highway, and provide copies of the rules regarding truck operation to all of its drivers, contractors, clients, and the Rochester Planning Board. I find that imposition of these conditions was reasonable and the conditions adequately address the publics interests in reasonable traffic and safety conditions in this Industrial District. In light of the foregoing, I conclude that the site plan, as conditioned, adequately addressed the site plan review consideration of maximizing pedestrian and vehicular safety.
Based upon the facts I have found, and for the reasons discussed, Plaintiffs appeal from the decision of the ZBA, upholding the Planning Boards site plan approval decision is DISMISSED.
Judgment to enter accordingly.
[Note 1] By-law § XVI(1.4)(14) provides in relevant part that Site Plan approval shall be granted upon determination by the Planning Board that the following considerations have been reasonably addressed by the applicant. . . . 14. Conform with State and local sound regulations as amended from time to time. Plaintiffs Motion for Summary Judgment and prayer for relief went beyond merely seeking judgment on this sole provision. Rather, Plaintiff argued that the noise impacts from the Edgewood Asphalt Plant site would violate § IV(D)(1)s prohibition on uses that would be detrimental or offensive or tend to reduce property values in the same or adjoining district and/or that the Planning Board should have rejected Edgewoods site plan under By-law § XVI (1.3)(3) because it is so intrusive on the needs of the public in one regulated aspect or another that rejection by the Planning Board would be tenable because no form of reasonable conditions can be devised to satisfy the problem with the plan. Plaintiffs Motion for Summary Judgment was denied on all these bases.
[Note 2] As discussed infra, Plaintiffs abandoned or waived several of these claims by the time of trial and after.
[Note 3] As adopted in 1969, and continuing to the present, the Rochester Zoning By-law does not generally permit any new residential uses in the Industrial District. However, lots with houses in existence at the time of passage of this by-law may be used for the same uses as allowed in the Agricultural-Residential districts, including for single- family dwellings. The current minimum lot size requirement for a single-family dwelling in the Agricultural-Residential district is 87,120 feet, i.e. two (2) acres.
[Note 4] According to the parties agreed facts, prior to 1971, the land was vacant.
[Note 5] Also permitted by right are on-premises signs (§ IV(D)(3)), agricultural uses on parcels of five acres or more (§ IV(D)(4)), and several uses permitted in the General Commercial District, including such uses as retail stores, wholesale offices and showrooms, restaurants, business and professional offices, motels, hotels and boarding houses (§§ IV(D)(2) and V(D)(1)-(11)).
[Note 6] This finding may necessarily require the Planning Board to determine whether or not the use proposed is one permitted under the By-law either by right or by special permit.
[Note 7] The referenced considerations are set forth in numbered paragraphs 6 through 14 of Subsection 1.4.
[Note 8] In the courts earlier summary judgment decision, the court denied Plaintiffs Motion for Summary Judgment under Subpart 14 of this Subsection, which alleged that the Asphalt Plant site plans failed to [c]onform with state and local sound regulations as amended from time to time, and thus should have been rejected by the Planning Board and ZBA. See By-law § XVI(1.4)(14).
[Note 9] Specifically, Edgewoods counsel stated
But what I will say on the issue of standing, and you know we did not move for summary judgment on the issue of standing, well actually because of Mr. DAcci and his wife Carol, but I will say that I think if they hadnt been in the case, we would have moved because I dont think anybody else has standing in this case.
Tr. I, pp. 41-42, lines 41:22-42:4.
[Note 10] Although Edgewood now attempts to defeat the DAccis standing through references to certain trial testimony in its Post-trial filing, Edgewood is bound by its attorneys opening remarks at trial. To ignore those concessions would be prejudicial to Plaintiffs, who may have tried the case differently and made different arguments in their Post-trial filing if they understood the DAccis standing to be at issue. In any event, Edgewood did not offer sufficient evidence warranting a finding contrary to the presumed fact. See Kenner, 459 Mass. at 118.
[Note 11] The parties contest whether under § IV(D)(1) the Edgewood Asphalt Plant is a permitted as-of-right use. This is addressed in substance below.
[Note 12] The parties stipulated in their Joint Pre-trial Memorandum that dust and odor impacts are not at issue in the case. At trial, Plaintiffs ultimately presented no evidence on lighting impacts (other than Mr. DAccis speculative assumptions on what would occur during operations) and requested no findings or rulings regarding the same in their Post-trial filing. Although Plaintiffs presented some testimony and argument at trial concerning visual intrusion, they appear to have relinquished that claim, as their Post-trial filing included no proposed findings of fact or rulings of law relative to violation of the visual intrusion standard of By-law § XVI(1.4)(8). Accordingly, I find all of these matters abandoned or waived.
[Note 13] As previously noted, lighting and visual intrusion impact allegations have been waived by Plaintiffs. Additionally, allegations that noise generated by the Asphalt Plant operations would exceed State regulations were resolved against Plaintiffs in the courts prior-issued summary judgment decision.
[Note 14] Rochester Bituminous includes an on-site materials processing facility that the Edgewood Asphalt Plant will not have. Rather, Edgewood will receive the materials necessary for its manufacturing activities from related-entities operating in other parts of the Commonwealth.
[Note 15] The home sales farthest from the impairment condition were termed the "unimpaired sales" and the sales closer to the impairment conditions were termed the "impaired sales."
[Note 16] Mr. Collins testified that the reduction in value percentages for each impairment condition would not be cumulative.
[Note 17] The conclusions attempted to be drawn by Mr. Collins from the data he analyzed in the Quincy billboard scenario were so ambiguous that Plaintiffs apparently abandoned the example, not arguing in their Post-trial filing that the court make any findings of fact or rulings of law related thereto.
[Note 18] Plaintiffs argue, that even if the starting value of the DAccis Property is discounted to account for these preexisting impairment conditions, Mr. Collinss analysis and conclusion apply with the same force. This argument is contrary to Mr. Collinss testimony that the percentage diminution in value figures he arrived at are not cumulative. Even if I were to credit Mr. Collinss analysis (which I do not), common sense dictates that the impacts that the DAcci Property already experiences from truck traffic, noise, and visual intrusion would already account for a significant reduction in property value and account for a considerable amount, if not all, of the percentage value reduction impact Mr. Collins claims the Asphalt Plant will cause than if the DAcci property were located in a residentially-developed area, like the homes reviewed in Mr. Collinss proxy scenarios.
[Note 19] In 2012, the assessed value of the DAcci Property dropped by almost ten-thousand dollars ($10,000). Defendants expert contends this was due to a systematic change in the Town, whereby tax rates were increased, but assessed values were decreased. Moreover, Defendants adduced testimony that the DAccis building value (as distinct from land value) was assessed higher in 2012 than in previous years. Plaintiffs offered no rebuttal to this testimony.
[Note 20] Mr. Collins appraised the DAcci Propertys current fair market value similarly.
[Note 21] For example, Defendants fact and expert witnesses dispute Dr. Hazarvartians assumption that all trucks visiting the site are 52-feet long and instead testified that 52 feet represents the largest possible truck that would visit the site, not the average truck length.
[Note 22] Like with the Asphalt Plant at issue here, the Norwood facility supplies much of its bituminous concrete products in connection with construction projects for a related entity, Lorusso Corp. Moreover, the raw materials delivered to the site also come from quarries owned by related entities that have the capability of communicating in real-time.
[Note 23] Although Edgewoods traffic expert, Mr. Adamo, did not analyze on-site traffic circulation at the Asphalt Plant nor review Edgewoods Temporary Truck Parking Plan, he concluded on the basis of his original traffic study that Edgewoods site plan did not cause any safety concerns to pedestrians or vehicles on the surrounding public ways, including Kings Highway.