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.
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.
A de novo trial was held on September 23 and 24, 2014. On October 30, 2014, the court took a view of the area in which the Edgewood site is located. 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.
By decision dated March 17, 2016, this court determined 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. In accordance with the March 17, 2016 decision of this court, it is therefore:
ORDERED and ADJUDGED that the February 9, 2012 decision of the Rochester Board of Appeals denying Plaintiffs appeal and declining to reverse the Rochester Planning Boards site plan approval decision was not in excess of its authority; and it is further
ORDERED and ADJUDGED that Plaintiffs G.L. c. 40A § 17 appeal in this matter is accordingly DISMISSED.
SO ORDERED.
CAROL D'ACCI, MICHAEL D'ACCI, BRANDON EMPEY, KRYSTLE EMPEY, EMMA GALVIN, JEFFREY MASON, SEAN SOMERS; ALBERT TODESCA and PAUL TODESCA, as Trustees of TODESCA REALTY TRUST; and PAUL MURPHY, as Trustee of WILLARD REALTY TRUST, v. RICHARD CUTLER, RANDALL CABRAL, KIRBY GILMORE, BENJAMIN GILMORE, and DAVIS SULLIVAN, as they are Members of the ROCHESTER BOARD OF APPEALS, and EDGEWOOD DEVELOPMENT COMPANY, LLC.