DONNA BARRETT, DIANNE BUCKBEE, ROBERT CRONE, and VIRGINIA CURCIO v. ENTERGY NUCLEAR GENERATION COMPANY, PETER CONNOR, EDWARD CONROY, DAVID PECK, WILLIAM KEOHAN, and MICHAEL MAIN, in their capacity as Members of the Board of Appeals of the Town of Plymouth, and PAUL MCAULIFFE, in his capacity as Director of Inspectional Services and Building Commissioner for the Town of Plymouth.

Entergy Nuclear Generation Corporation (Entergy) owns and operates the Pilgrim Nuclear Power Station (Pilgrim or the plant) in Plymouth. Pilgrim operates under a 1967 special permit from the Town of Plymouth and a license that was granted to its then-owner, the Boston Edison Company, by the United States Atomic Energy Commission (AEC). The plant began operations in 1972. As part of its operations, the plant generates spent nuclear fuel (SNF). There is not, and has never been, a location to which SNF can be transported. Instead, over the history of the plant's operation, the SNF has been stored in containers that sit in a pool of water inside the reactor building. That pool is reaching capacity. Therefore, on February 14, 2013, Entergy applied for a zoning permit for the construction of a concrete pad for an on-site independent spent fuel storage installation (ISFSI) facility. The concrete pad is to be used as a foundation to support up to 40 dry cask storage containers that would store the SNF outside the reactor building. On March 25, 2013, the Plaintiffs, residents of Plymouth owning property near Pilgrim, requested zoning enforcement from the Director of Inspectional Services (DIS) asserting that the Town should require Entergy to obtain a special permit for the ISFSI project under the Plymouth Zoning Bylaw (Bylaw) because it is a new use, not accessory to the primary use of the plant as a power generating facility. On March 27, 2013, DIS granted Entergy zoning permit #Z20130196 (Permit) and denied the Plaintiffs' request for zoning enforcement. On July 24, 2013, the Plymouth Zoning Board of Appeals (Board or ZBA) upheld the DIS's issuance of the Permit (Decision).

Plaintiffs appealed the Board's Decision under G.L. c. 40A, § 17, and G.L. c. 231A, §§ 1- 2, again arguing that the DIS should not have issued the Permit because a special permit was required for the ISFSI project under the Bylaw since the storage of SNF outside the reactor building was a new use, not accessory to Pilgrim's power production. Entergy challenged the Plaintiffs' standing to bring the complaint as "persons aggrieved." Entergy also asserted that the issuance of the Permit was correctly upheld by the Board as the ISFSI project, if not part of the primary use of Pilgrim, is accessory to Pilgrim's primary function as a nuclear power generation facility. As explained more thoroughly below, after trial I find that the Plaintiffs are not persons aggrieved with standing to bring the complaint and the Board's Decision that the ISFSI project is an accessory use was not arbitrary and capricious.

I. PROCEDURAL HISTORY

Plaintiffs filed their Complaint on August 13, 2013. [Note 1] Entergy's Answer and Affirmative Defenses was filed on September 30, 2013. The Answer of Municipal Defendants was filed on October 4, 2013. The case management conference was held on October 15, 2013, at which the Court ordered Entergy to give the Court 90-day notice before any nuclear materials are stored at the disputed site. Plaintiffs filed their First Amended Complaint on November 18, 2013. Entergy filed its Answer and Affirmative Defenses to Plaintiff's First Amended Complaint on November 25, 2013.

On May 7, 2014, Entergy filed its Motion to Dismiss Plaintiffs' First Amended Complaint for Lack of Standing and supporting materials. On May 9, 2014, Entergy filed its Motion to Stay Discovery Pending a Ruling on its Motions to Dismiss for Lack of Standing. On June 9, 2014, the Plaintiffs filed Plaintiffs' Response to Defendant Entergy Nuclear Generation Co.'s Statement of Material Facts and Plaintiffs' Statement of Material Facts in Support of their Opposition to Entergy's Motion to Dismiss Plaintiffs' First Amended Complaint for Lack of Standing, Affidavit of Christine Bostek in Support of Plaintiffs' Opposition to Defendant Entergy's Motion to Dismiss Plaintiffs' First Amended Complaint for Lack of Standing, and Plaintiffs' Opposition to Entergy's Motion to Stay Discovery and Plaintiffs' Cross Motion.

A motion hearing was held on June 10, 2014, at which I allowed Entergy's Motion to Stay Discovery pending a ruling on its Motion to Dismiss for Lack of Standing, except that, by agreement of the parties, the Town's responses to Plaintiffs' Request for Admissions were to be served by June 20, 2014. On June 16, 2014, Entergy filed its Reply in Support of its Motion to Dismiss Plaintiffs' First Amended Complaint for Lack of Standing and supporting materials. Entergy's Motion to Dismiss was heard on June 20, 2014, and taken under advisement. Plaintiff's Post-Hearing Brief Regarding Preemption and Defendant Entergy Nuclear Generation Co.'s Supplemental Briefing Regarding Federal Preemption of Local Regulation of Nuclear Health and Safety Issues were filed on July 3, 2014.

On July 28, 2014, the Court received a letter from Entergy stating: "pursuant to the Court's Order of October 15, 2013 directing Entergy to give the Court ninety (90) days' notice ‘before any nuclear materials are stored at the disputed site,' this is notice that Entergy currently plans to begin the process of transferring nuclear materials to dry cask storage containers and hence to the concrete slab which is the subject of the above-encaptioned matter at the Pilgrim Nuclear Power Station no earlier than October 27, 2014."

On August 14, 2014, I allowed in part and denied in part Entergy's Motion for Summary Judgment. [Note 2] I held that the abutter Plaintiffs' presumption of standing had been rebutted and that the Plaintiffs' alleged health, safety, and environmental concerns were either preempted, not particularized, or not cognizable interests protected by the zoning scheme. I did, however, find that Plaintiffs within a two-mile radius of Pilgrim had presented sufficient evidence of standing on the basis of lost property values to create an issue of fact defeating summary judgment. Consequently, the claims of Plaintiffs residing farther than two miles from Pilgrim were dismissed with prejudice. [Note 3]

On September 30, 2014, Plaintiffs filed a Motion for Partial Summary Judgment pursuant to Mass. R. Civ. P. 56(c), along with supporting materials. On October 20, 2014, Plaintiffs' filed a Second Motion for Partial Summary Judgment pursuant to Mass. R. Civ. P. 56(c), along with supporting materials. On November 20, 2014, Entergy filed Defendant's Response to Plaintiffs' Statement of Facts in Support of their Motion for Partial Summary Judgment. On December 12, 2014, Entergy filed Defendant's Response to Plaintiffs' Statement of Facts in Support of their Second Motion for Partial Summary Judgment. Plaintiffs' Second Motion for Partial Summary Judgment was not heard, but the arguments made were incorporated into arguments made at trial.

On January 12, 2016, a pre-trial conference was held. On January 22, 2016, an Assented to Motion to Dismiss Plaintiffs Aileen DeCola, Patricia Carr, John Carr, and Stephanie Crone from this action and an Assented to Motion to Dismiss Defendants Theodore Bosen, Eric Heller, William DeCola, John (Jack Carr), and Susan Carr were filed. I allowed the motions to dismiss on January 27, 2016.

On April 19, 2016, Entergy filed Defendants Motion in Limine to Exclude Evidence Concerning Alleged Health, Safety, and Environmental Concerns, Motion in Limine to Exclude Evidence Concerning Pilgrim Plant Performance Evaluations, Motion in Limine to Exclude Certain Late-Disclosed Facts Allegedly Related to Plaintiffs' Property Values, Motion in Limine to Exclude Report and Testimony of Dr. Stephen Sheppard, Motion in Limine to Exclude Evidence Concerning the Proceedings before the Plymouth Zoning Board of Appeals, Motion in Limine to Exclude Evidence Concerning Subsequent Events not Bearing on Application, Motion in Limine to Exclude Irrelevant Cost or Financial Information, Motion in Limine to Exclude Evidence Concerning Costs or Duration of Dry Cask Storage at other Power Plants, Motion in Limine to Exclude Exhibits that are not Authenticated, and Motion in Limine to Exclude Testimony by Counsel as Improper. On May 9, 2016, Plaintiffs' filed their responses to Entergy's ten Motions in Limine.

On May 17, 2016, a hearing on the Motions in Limine was held. I decided the motions as follows: (1) Motion in Limine to Exclude Evidence Concerning Health, Safety, and Environmental Concerns was allowed in part and denied in part. I ruled such evidence would only be admitted to the extent relied upon by Plaintiffs' expert Dr. Stephen Sheppard; (2) Motion in Limine to Exclude Certain Late-Discovered Facts Allegedly Relating to Plaintiffs' Property Values was denied; (3) Motion in Limine to Exclude Report and Testimony of Dr. Stephen Sheppard was denied without prejudice; (4) Motion in Limine to Exclude Evidence Concerning the Proceedings Before the Plymouth ZBA was allowed in part and denied in part. I ruled no minutes, transcripts or videos of ZBA hearings would be admitted. I found that the alleged understanding or policy of the ZBA, that changes to the subject property do not require amendments to the 1967 special permit or a new special permit, was an unreasonable basis on which to have denied Plaintiffs' appeal in the ZBA decision at issue and could not on de novo review constitute evidence in support of the decision or grounds for deferring to the ZBA's interpretation. Such evidence would not be admitted unless defendants in their case supporting the ZBA's decision relied on evidence of such an understanding or interpretation or such evidence was relevant for some other reason, at which time Plaintiffs could seek its admission; (5) Motion in Limine to Exclude Evidence Concerning Subsequent Events Not Bearing on Application was allowed in part and denied in part. I ruled that the fact that Entergy had announced in public and informed the Nuclear Regulatory Commission that the subject power plant would be decommissioned in 2019 is admitted by all parties and would be in evidence. Detailed evidence concerning the decommissioning process would generally not be deemed relevant, except upon a showing that it is directly relevant to issues of Plaintiffs' standing; (6) Motion in Limine to Exclude Evidence Concerning Pilgrim Plant Performance Evaluations was allowed in part and denied in part. I ruled that such evidence, in the form of publicly disseminated information, would be admissible only to the extent that it is directly relevant to issues of Plaintiffs' standing; (7) Motion in Limine to Exclude Irrelevant Financial Information was allowed in part and denied in part. I held that financial information from contracts for the ISFSI that have already been designated confidential could be admitted subject to confidentiality order; (8) Motion in Limine to Exclude Evidence Concerning Costs or Duration of Dry Cask Storage at Other Power Plants was allowed; (9) Motion in Limine to Exclude Exhibits That Are Not Authenticated was denied; (10) Motion in Limine to Exclude Testimony by Counsel as Improper was allowed in part and denied in part. I ruled that the testimony of Attorney Lane would not be admitted and the testimony of Attorney Cho would be admitted only to the extent necessary to authenticate documents and nothing in the order would act to waive defendant Entergy's attorney-client privilege or work product protections.

On July 26, 2016, I took a view of Pilgrim and the proposed location of the ISFSI project. On July 29, 2016, a hearing was held on Entergy's Emergency Motion to Exclude Expert Analysis. I allowed the motion, stating that the Plaintiffs are barred from presenting in their case in chief any material, results, or conclusion, including Standing Facts 324-331, from Dr. Sheppard's post-discovery deadline hedonic analysis. I also allowed the Motion to Dismiss as Plaintiffs Christine Bostek, Jacquelyn Hochstin, and Frederick Paris. This left Donna Barrett, Diane Buckbee, Robert Crone, and Virginia Curcio as the sole plaintiffs for trial.

The initial phase of the trial, which included the presentation of expert and factual witnesses who testified to issues related to the remaining Plaintiffs' standing claims, was held on August 8-11, 2016. Testimony on standing was heard from Donna Barrett, Diane Buckbee, Virginia Curcio, Dr. Stephen Sheppard, Dr. George Tolley, Stephen DeCastro, Roger Durkin, Karen Vale, Frank Mand, and Charles Minott. Exhibits 1-49 were marked. On August 10, 2016, Entergy orally moved for mandatory dismissal of Plaintiffs' claims under Mass. R. Civ. P. 41(b)(2). I denied the motion without prejudice, to be renewed at the close of Entergy's standing evidence. At the conclusion of the initial phase of the trial, Entergy orally renewed its motion for mandatory dismissal pursuant to Mass. R. Civ. P. 41(b)(2) and I gave the parties leave to file memoranda on the issue of standing. On August 15, 2016, Entergy filed its Memorandum in Support of its Motion for Mandatory Dismissal of Plaintiffs' Claims. On August 17, 2016, the Plaintiffs filed their Opposition to Entergy's Memorandum in Support of their Motion for Mandatory Dismissal. The motion was then taken under advisement. On August 17, 2016, the Memorandum and Order denying the motion for mandatory dismissal without prejudice was issued.

The trial continued on August 22-24, 2016, which included the presentation of expert and factual witnesses who testified to issues related to the merits of Plaintiffs' claim. Testimony was heard from Charles Minott, Paul McAuliffe, Joseph Lynch, and Lee Hartmann. Exhibits 50-72 were marked. Impounded exhibits 1-4 were marked. On October 28, 2016, Plaintiffs filed their Proposed Findings of Fact, Rulings of Law, and Post-Trial Memorandum of Law, and Entergy filed its Post Trial Brief, Proposed Findings of Fact and Rulings of Law. Closing arguments were heard on November 1, 2016 and the matter was then taken under advisement. This decision follows.

II. FINDINGS OF FACT RELATED TO STANDING

Based on the view, the undisputed facts, the admitted exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. Pilgrim was originally constructed by the Boston Edison Company (Boston Edison) between 1967 and 1972. Boston Edison operated Pilgrim until 1999 when it sold the site to Entergy. Exh. 1, Plaintiff Merits Facts (PMF) ¶ 6

2. Entergy has owned and operated Pilgrim, and the real estate where Pilgrim is located, since approximately July 12, 1999. Exh. 1, PMF ¶¶ 1, 4, Entergy Merits Facts (EMF) ¶¶ 3, 37.

3. In 2015, Entergy announced that Pilgrim will be decommissioned and end active operations on June 1, 2019. Exh. 1, EMF ¶ 72; Tr. 4:20-21.

4. Currently, Pilgrim generates spent nuclear fuel (SNF) as a byproduct of nuclear power production. After four to six years of use in a commercial nuclear reactor, nuclear fuel rods can no longer efficiently product energy and are considered SNF. Exh. 1, EMF ¶¶ 28-29.

5. When fuel rods can no longer efficiently produce energy, they are transferred from the reactor core to racks within a deep, water filled pool for cooling, known as the spent fuel pool. The spent fuel pool is located inside the reactor building. Exh. 1, PMF ¶ 28, EMF ¶ 30; View.

6. After the SNF has cooled sufficiently in the spent fuel pool, it may be transferred to dry storage, which consists of large concrete steel casks. Exh. 1, PMF ¶ 30, EMF ¶ 34.

7. On February 14, 2013, Entergy applied to the DIS of the Town of Plymouth, Paul McAuliffe, for a zoning permit for construction of a concrete pad at Pilgrim to accommodate dry cask fuel storage units as part of an on-site independent spent fuel storage installation facility (ISFSI project). Exh. 1, PMF ¶ 54.

8. On March 25, 2013, the Plaintiffs requested zoning enforcement from the DIS. Exh. 1, PMF ¶ 12; Exh. 62; Tr. 6:57-60.

9. On March 27, 2013, DIS granted Entergy zoning permit #Z20130196 (Permit) and denied the Plaintiffs' request for zoning enforcement. The Plaintiffs appealed the granting of the Permit to the ZBA. On July 24, 2013, the Board issued a Decision upholding the DIS's decision to grant the Permit (Decision). Exh. 1, PMF ¶¶ 11-12, 14; Tr. 6:61.

10. Plaintiffs Diane Buckbee (Buckbee), Virginia Curcio (Curcio), Donna Barrett (Barrett), and Robert Crone (Crone) appeal the Board's Decision upholding the issuance of the Permit, claiming that they have been harmed by the ISFSI project through a diminution in their property values from the SNF storage being moved into casks on the concrete pad located outside the reactor building. Entergy Standing Fact (ESF) ¶¶ 1, 3.

11. Buckbee resides and owns property at 223 Rocky Hill Road, Plymouth. Buckbee's property is within one mile of Pilgrim. She has lived at the property since 2010, but has owned it since 1996. Buckbee's home abuts a wooded buffer zone to Pilgrim in the back, and has a view of Cape Cod Bay from the front. Her home is on the same road as Pilgrim and she drives by the plant every day. Buckbee stated she was concerned about the ISFSI project because now there is an additional nuclear waste storage area at Pilgrim. She testified that she believed the new nuclear waste storage site outside the reactor building would impact her property value. She stated that she had seen many media articles about Pilgrim that were not complimentary, which made her concerned about the effects of the ISFSI project. Although Buckbee attested that she does not have plans to sell her home now, she is worried that when she is ready to sell the property the value of the home will be diminished. Exh. 1, Plaintiff Standing Facts (PSF) ¶¶ 1, 4; Tr. 1:42-45, 48, 51, 53-54, 60-61, 68-69.

12. Curcio resides and owns property at 715 Rocky Hill Road, Plymouth. Curcio's property is within one mile of Pilgrim, approximately .4 miles from the entrance of the plant. Curcio has owned her home since 2004. Curcio's rear property line abuts a wooded buffer zone to Pilgrim. She testified that she drives by Pilgrim every day and that she was aware of the dry cask storage at Pilgrim through local media reports. Curcio is concerned about the presence of a long-term nuclear storage facility close to her home and the impact that the ISFSI project would have on her property's value. Curcio testified that the value of her home was very important to her and it is a significant part of her retirement plan. Curcio stated she has indefinite plans to sell her house within six months after she retires, on December 31, 2018. Cucio has a planned budget for her retirement that is dependent on there being sufficient equity in her property when she sells it. She is worried that anyone interested in buying her property may seek a price concession because of the home's proximity to Pilgrim and the ISFSI. Even if Pilgrim is decommissioned in 2019, Curcio is still concerned about the impact to her property's value because the ISFSI will continue to store nuclear waste at Pilgrim. Exh. 1, PSF ¶¶ 54, 57; Tr. 1:81-82, 85-88, 94-98.

13. Barrett resides and owns property at 182 Taylor Avenue, Plymouth. Barrett's property is within two miles of Pilgrim. She has owned the property since 2000. Her property is down the road from Pilgrim and she drives by the plant every day. Barrett testified that the value of her home is very important to her and her financial security. She plans to sell her home around 2019, but she stated she would delay the sale if the market value of her home is impacted by Pilgrim. Barrett testified that she believes the ISFSI project might impact her property value because it is additional long-term nuclear waste storage and an added danger near her property. Even if Pilgrim is decommissioned in 2019, she is concerned that her property value will still be affected because she does not have confidence that the waste will be managed correctly. Her lack of confidence in the way the facility may be managed stems from media articles she has read about Pilgrim. Exh. 1, PSF ¶¶ 126-128; Tr. 2:6-7, 12-18.

14. Crone resides and owns property at 6 Homer Avenue, Plymouth. Crone's property is within two miles of Pilgrim. Exh. 1, PSF ¶¶ 101-102.

15. There are approximately 1,000 residential homes located within a two-mile radius of Pilgrim. Tr. 4:68-69.

16. The concrete pad and dry casks of the ISFSI project are not visible from any of the Plaintiffs' properties. They do not alter the view from any of the Plaintiffs' properties. The dry casks do not make any noise or emit any odor detectible to the Plaintiffs on their properties. Tr. 1:73-74, 80, 103-104; Tr. 2:18-19; View.

17. Section 205-1 of the Bylaw provides that among its purposes is to "conserve the value of land and buildings." Exh. 1, PSF ¶¶ 183, 186; Exh. 3.

18. Plaintiffs offered Dr. Stephen Sheppard (Dr. Sheppard) as an expert to support their claim that the ISFSI project affects their property values. Dr. Sheppard is a professor of economics at Williams College with a PhD and a Master's Degree in Economics from Washington University. Exh. 1, PSF ¶¶ 194-195, ESF ¶ 26; Tr. 1:130-131; Exh. 39.

19. Dr. Sheppard specializes in hedonic modeling and estimating the effects of disamenities on local real estate markets. Tr. 1:130-131.

20. Hedonic modeling is a standard method in the field of economics used to evaluate the effect of a single variable on real estate property values. Hedonic modeling considers real estate property value as a "bundle" of characteristics and obtains estimates of the contributory value of each characteristic to the market value of real property. Proximity of residential real estate to an ISFSI is an appropriate characteristic to isolate and evaluate using a hedonic model. Exh. 1, PSF ¶¶ 198-200.

21. Dr. Sheppard testified that a disamenity can diminish property values both in terms of a reduced transaction price as well as causing a particular property to remain on the market longer than it otherwise would without the disamenity. Tr. 1:151-153.

22. Dr. Sheppard testified that a disamenity may diminish property owners' enjoyment and use of a property and make them more eager to sell, causing them to accept a lower offer than they otherwise would or to lower the initial asking price for a property. Tr. 1:152.

23. Dr. Sheppard is familiar with Pilgrim through living in Massachusetts and seeing reports about the plant in the newspapers. He is also familiar with the Plymouth real estate market through his own research into a variety of Massachusetts communities, including Plymouth, on the impacts of cultural organizations and various cultural events on housing values. Tr. 1:142-143.

24. Dr. Sheppard reviewed the location of the real estate owned by the Plaintiffs and the location of Pilgrim's proposed ISFSI. Dr. Sheppard testified that he was familiar with Plaintiffs' properties and their approximate worth as a result of his visits to the properties and a review of documents related to the properties. He is also familiar with the distance from each of the Plaintiffs' properties to Pilgrim, both from visits to the area, and by viewing the properties on Google images. Dr. Sheppard has visited the area around Pilgrim on at least two occasions. Exh. 1, PSF ¶¶ 194-195; Tr. 1:143-145.

25. Dr. Sheppard concluded that the ISFSI project was a disamenity that impacted property values within a two-mile radius of Pilgrim. He opined that the harm suffered by Plaintiffs stemmed from the continued operation of Pilgrim caused by the ISFSI project. He attested that the ISFSI's effect on property values grows less the farther a property is located from Pilgrim. Dr. Sheppard testified that the harm suffered by the Plaintiffs resulting from the diminution in property values associated with the ISFSI project was "greater than de minimus." He did not offer any analysis or opinion on the extent of diminution in value the Plaintiffs might suffer. Tr. 2:48-49, 64-65, 67-72, 120, 129-131; Tr. 3:11-14, 24, 28-29, 43-44.

26. Dr. Sheppard relied on multiple published studies to support his conclusion, in particular the Metz & Clark (1997) and Clark & Allison (1999) studies. Dr. Sheppard first consulted the Metz & Clark Study involving properties surrounding Rancho Seco, a decommissioned nuclear plant in California. The Metz & Clark Study found no property value effect per mile moved away from Rancho Seco regardless of whether the plant was operating or closed, or whether the SNF was to be placed in dry cask storage facilities immediately or part of a future action. Dr. Sheppard ultimately rejected the findings in the Metz & Clark Study. Instead, he relied on the results of the Clark & Allison Study—a newer study, with a slightly larger sample size and more control variables—for the opinion that having stored spent fuel at a power plant site depresses local property value. Tr. 2:68-69, 71-73, 118-119, 129-130; Tr. 3:20-22, 38- 41.

The results of the Clark & Allison Study showed a statistically significant increase in real housing prices per mile moved away from Rancho Seco. However, the study concluded that while a price-distance relationship existed, it was not static. The aversion to Rancho Seco plant had been declining over the five years of the sample, as reflected by rising housing prices in the area. When the impact to property values was considered, the ISFSI was considered part of the plant and was not isolated. When the ISFSI was isolated, the results of the study found that the announcement about SNF storage at the plant did not affect the price-distance relationship. The study found no evidence to support a significant detrimental influence of the announcement of an ISFSI on sale prices in the area. The study concluded there was little evidence to support the contention that media attention on the plant had a strong detrimental influence on housing in the community. As such, I find that the Clark & Allison Study does not establish that ISFSIs have a negative effect on property values and the results of this study do not support Dr. Sheppard's conclusion. Tr. 2:68-69, 71-73, 103-104, 119-121; Tr. 3:16-20, 23, 30-31, 39-40, 97-98.

27. Dr. Sheppard also based his analysis on a 2009 senior thesis by Brian Prest entitled "Measuring the Externalities of Nuclear Power: A Hedonic Study" (Prest Study). Dr. Sheppard was not a coauthor of the Prest Study. The Prest Study was completed by a student under the supervision of Dr. Sheppard, including his oversight of the data used and methodologies applied. The Prest Study uses local property data and analyzes the impact of Pilgrim on the Plymouth real estate market. It does not address the impact from the ISFSI project in particular. In fact, the Prest Study preceded the announcement of the ISFSI project and construction of the concrete pad at Pilgrim. Tr. 1:142-143, 156, 160-162, 170-171; Tr. 2:29-30, 48-49, 81; Tr. 3:12-13, 95-96.

28. Dr. Sheppard considered the Prest Study in reaching his opinion that Pilgrim itself is a disamenity that depresses the value of the Plaintiffs' properties and that this depressive effect is allowed to continue only due to the ISFSI project. Dr. Sheppard attested that he did not rely on the conclusions in the Prest Study in forming his ultimate opinion that both Pilgrim and the ISFSI project impact property values within a two-mile radius, but took it into consideration.

Because the Prest Study did not look at the impacts to property values caused by the ISFSI project in particular, I find that it does not support Dr. Sheppard's opinion. Tr. 1:161; Tr. 2:29- 30, 48-49; Tr. 3:12-14, 46-47.

29. Another study Dr. Sheppard reviewed was the Fink & Stratmann Study, which looked for an impact on the perception of risk and how it might have affected the market value of properties near nuclear power plants in the wake of the nuclear accident at the Fukushima Dai- ichi complex (Fukushima) in Japan on March 11, 2011, when a tsunami hit the nuclear power plant causing a blackout and core damage to the nuclear reactor containing the nuclear fuel used by the plant. [Note 4] This study did not deal with the impact of ISFSIs particularly, only nuclear plants in general. The results of the study concluded that post-Fukushima, "home prices close to the nuclear reactors did not fall relative to prices at other locations." I do not credit Dr. Sheppard's reliance on this study since the study did not involve ISFSIs or the storage of SNF. Tr. 2:35-36, 134; Tr. 3:44-45.

30. Dr. Sheppard secondarily consulted several hedonic studies of unrelated, non-ISFSI disamenities. Dr. Sheppard testified that analogous studies of nonnuclear hazardous sites helped inform his expert opinion regarding impacts to property values resulting from the ISFSI project. Dr. Sheppard drew conclusions from studies of different disamenities such as brownfields, storage tanks, landfills, and superfund sites. Those studies typically showed a statistically significant impact on property values with houses located closer to the source of the disamenity. From these studies, Dr. Sheppard extrapolated that participants in the housing market in Plymouth may suffer a similar impact on property values surrounding Pilgrim and the ISFSI project due to the perception of risk that buyers and sellers attribute to living in close proximity to a SNF storage facility. I do not place much weight on these other studies as they do not involve ISFSIs and are based on assumptions not supported by the evidence. Tr. 2:41-47, 102-106; Tr. 3:14-15, 25-27, 34-35.

31. Dr. Sheppard also considered the 2013 Gawande and Jenkins-Smith Study (Gawande Study) that analyzed the effect to property values from the transportation of SNF on rail lines. The Gawande Study purported to show that properties located in proximity to the railroad, through which the cars with spent fuel passed, were depressed in value. I do not place much weight on the Gawande Study as it does not involve the storage of SNF or ISFSIs. The analogy to shipping waste long-distance on rail lines is not suitable based on my view of the transportation of the SNF to the casks and concrete pad that would occur at Pilgrim. Tr. 2:105- 108, 117; Tr. 3:35-37, 50, 93; View.

32. Dr. Sheppard's involvement with the administrative hearings for the relicensing of the Indian Point (Indian Point) nuclear power plant in New York in 2011 also influenced his opinion. During those hearings, he served as an expert for the New York Attorney General's Office. Dr. Sheppard wrote a report and gave testimony at those hearings regarding the effect of Indian Point on property values generally, but he did not isolate the effect of the ISFSI at Indian Point on property values. Tr. 1:139-140; Tr. 2:75-79, 131-133; Tr. 3:17-18, 48-50, 85-89, 101, 107.

33. Dr. Sheppard also relied on media articles to establish a basis for the perception of risk experienced by reasonably informed real estate market participants and homeowners. Dr. Sheppard is an expert on media reports and how the reports will be perceived by the reader. Hedonic modeling includes media coverage as a factor. Dr. Sheppard testified that a community's perception of risk associated with SNF facilities is most often due to media coverage in the local community. He used the media articles to provide a basis for the perception of risk (and not for the truth of the articles) that the Plaintiffs testified they experience due to their close proximity to Pilgrim and the ISFSI project. Tr. 2:30-36; Tr. 3:114-115; Exhs. 44, 46.

Dr. Shepard relied on numerous articles, only a few of which discuss the ISFSI project. Some of the articles speak favorably about the ISFSI project and some do not. None of these articles discuss a possible diminution in property value due to the ISFSI project. From these articles, Dr. Sheppard concluded that there were concerns about the possible adverse effects to property values in close proximity to Pilgrim that were represented in the media and inferred that these reports could influence the perception of real estate market participants. Tr. 2:84-94, 96-98, 117-118; Exhs. 41-44, 46.

34. Karen Vale, program director at Cape Cod Bay Watch, a Pilgrim-focused advocacy group of the the Jones River Watershed Association, testified that she collected the articles consulted by Dr. Sheppard without knowing that they would ultimately be provided to him for use in this matter. The articles were originally collected for Cape Cod Bay Watch to keep as a resource for advocacy purposes. Vale collected the articles using a combination of online searching and collecting paper copies given to her from Plaintiffs' counsel and from the Jones River Watershed Association. She collected "everything and anything" related to Pilgrim, but not the ISFSI specifically, that came after the Fukushima event and that was generated by media staff, rather than opinion writers. Vale endeavored to take out duplicative articles. She was never told what types of media coverage would be relevant to Dr. Sheppard's analysis, i.e. representative of what real estate market participants would see. The articles were eventually provided to Dr. Sheppard by the Plaintiffs' counsel. Tr. 2:16, 135-138; Tr. 3:9, 31-32, 55-65, 98; Exhs. 44, 46.

35. I find that these media articles do not support Dr. Shepard's opinion. The majority of the articles do not discuss the ISFSI project or comment about the ISFSI project's effect on nearby property values. Plaintiffs' counsel provided Dr. Sheppard with these articles. Testimony by Vale, which I credit, indicates that these articles may not be a fair representation of the sort of media coverage a typical buyer of residential real estate would be exposed to. Dr. Sheppard testified that he does not commonly accept datasets from his clients which he then uses to render opinions. He testified that he was unsure whether they were a fair representation, and that he could only infer and make the assumption, from reading through them, that they represented a range of viewpoints expressed in the community. Tr. 2:101-102, 135-138; Tr. 3:9-10.

36. While I find that Dr. Shepard is a scholar and an expert on the economics of hedonic modeling, I do not credit his testimony in regards to the ISFSI project's effect on the Plaintiffs' property values. Dr. Sheppard's expert report and testimony did not contain any original research on the Plaintiffs' specific property values or any other property in Plymouth, or any research specific to the impact of the ISFSI project at Pilgrim to those properties. Dr. Sheppard testified that he did not study the effect of the ISFSI project on real estate values, as distinct from the effect of the nuclear generating facility. The studies that he relied on focus on different real estate markets than Plymouth and Massachusetts, different power plants, or different disamenities than nuclear power plants or ISFSIs altogether. While I find credible Dr. Sheppard's testimony as to the general public perception of power plants and ISFSIs, and the effect they have on property values generally, I do not find his ultimate conclusion—that the Plaintiffs' property values in particular are diminished by the ISFSI project—to be supported by the evidence. Tr. 2:71-73, 81, 120-121; Tr. 3:10-12, 24-25.

37. Entergy offered Dr. George S. Tolley (Dr. Tolley) as an expert to refute Dr. Sheppard's conclusion that the ISFSI project affects the Plaintiffs' property values. Dr. Tolley is a professor emeritus of economics at the University of Chicago and President of RCF, an economic consulting firm in Chicago. He has a Master's Degree in economics from American University and a PhD in economics from the University of Chicago. Tr. 3:84-85, 87.

38. Dr. Tolley stated that his expertise on the effects of storage of SNF on property values is primarily derived from his work on the Indian Point case. Dr. Tolley testified in the administrative hearings related to the relicensing of the Indian Point plant on behalf of the power plant. He not only reviewed other studies from around the country that had attempted to estimate the effect nuclear power plants have on property values, but he also conducted a hedonic modeling study of his own on what effect nuclear reactors at Indian Point have on surrounding property values. Tr. 3:85-86, 89.

39. In preparing for this case, Dr. Tolley reviewed the same studies that Dr. Sheppard relied on in reaching his conclusion. Dr. Tolley disagreed with Dr. Sheppard's use of studies that were not done by him, did not involve nuclear power plants, or did not involve the effect an ISFSI project would have on nearby property values. Tr. 3:89-90, 92-97.

40. Dr. Tolley testified that the only studies that apply hedonic modeling to the impact of ISFSIs were the Metz & Clark and Clark & Allison studies. He disagreed with Dr. Sheppard's interpretation of the studies. While Dr. Tolley agreed that the results of the Clark & Allison Study showed that people who lived closer to Rancho Seco suffered diminished property values, he testified that the study did not isolate the effects of the ISFSI project from the plant in general when the analysis was conducted. Dr. Tolley stated that both studies focused on the public announcements about SNF storage and both concluded that the announcements did not affect the local residential property market, regardless of whether the plant was operating or closed, or whether the spent fuel was placed in dry cask storage immediately or as part of future action. I credit Dr. Tolley's interpretation of the results of these studies. Tr. 3:89-92, 94, 112, 118-120.

41. Dr. Tolley also reviewed the Prest Study. He stated it was not customary in his academic work to rely on undergraduate, unpublished papers in reaching an expert conclusion. Dr. Tolley attested that he disagreed with the conclusions of the Prest Study and noted that it did not consider the effect on property values from the ISFSI project in particular. Tr. 3:95-96.

42. Dr. Tolley was aware of research showing that nuclear power plants are perceived as a risk. He testified that that there has been resistance to ISFSI projects from communities due to the communities' perception of risks of SNF storage. Dr. Tolley went through the media reports that Dr. Sheppard had reviewed in his analysis. Dr. Tolley disagreed with Dr. Sheppard's reliance on those media articles to support his conclusion that negative public perception of the ISFSI project would have an actual impact to property values in the vicinity of Pilgrim. Tr. 3:86- 87, 98-99, 114-115.

43. Based on his review of the studies and articles Dr. Sheppard examined, Dr. Tolley testified that Dr. Sheppard's report did not sufficiently establish that the ISFSI project was a disamenity that will have an adverse effect on property values in Plymouth, let alone impact the Plaintiffs' property values. Tr. 3:96-101, 105-106.

44. While I credit Dr. Tolley's findings that Dr. Sheppard did not sufficiently establish that the ISFSI project would have an adverse effect on the Plaintiffs' property values, I cannot credit Dr. Tolley's overall conclusion about the effect of the ISFSI project on the Plaintiffs' property values for the same reasons I cannot credit Dr. Sheppard's conclusion. Like Dr. Sheppard, Dr. Tolley never performed any empirical analysis specifically related to Pilgrim or the Plymouth real estate market and his opinion is based solely on his review of other studies and research, the majority of which are unrelated to nuclear power plants or ISFSIs. Dr. Tolley had no direct or personal knowledge of the Plymouth real estate market or real estate data from Plymouth. He had no knowledge of the ISFSI site or the location of the Plaintiffs' properties in relation to Pilgrim. Tr. 3:101-106.

45. The only appraisal-based analysis of the value of properties within the two-mile radius of Pilgrim in evidence was conducted by Roger Durkin (Durkin) and Stephen G. DeCastro (DeCastro). Durkin is the owner of Durkin Valuation Services and has more than 40 years of experience in the appraisal industry. Durkin has a Master's Degree in valuation from Lindenwood College and a J.D. from Massachusetts School of Law. DeCastro has over 30 years of experience in the real estate appraisal industry and has taught numerous specialized appraisal education courses. Durkin and DeCastro have valued several properties in Plymouth over the years and are familiar with the Plymouth real estate market. Their analysis was collated into a formal report (Durkin Report). Tr. 3:121, 124-125, 144-146; Tr. 4:69; Exh. 47.

46. The Durkin Report focused on the valuation of the Plaintiffs' properties before and after the public notice of the proposed ISFSI project. The date that Durkin and DeCastro used as the public announcement date was April 2013. This date was given to them by counsel for Entergy. Durkin testified that he did an independent verification of the date by reading newspaper articles about the ISFSI project. DeCastro testified that prior to being informed of the date, he had no knowledge of the ISFSI and no colleagues in the real estate market had pointed out the announcement of the ISFSI project. Tr. 3:127-128, 133, 155-156; Tr. 4:69-71; Exh. 47.

47. Plaintiffs argue that the ISFSI project at Pilgrim became public knowledge as early as June 2012. Local Plymouth journalist Frank Mand testified that he conducted an interview with Entergy's Government Relations Manager, Jack Alexander, which resulted in the publication of two news articles in the Old Colony Memorial, both in print and online, in June 2012. Tr. 3:134-135; Tr. 4:57-63.

48. Charles Minott (Minott), the Entergy project manager for the ISFSI project since 2009, has a Master of Science in civil engineering from MIT and has worked in the nuclear industry since he began at Boston Edison in 1974. Minott testified that there was no formal press release given by Entergy regarding the dry cask storage at Pilgrim. He stated that dry fuel storage had been anticipated in the industry since the 1980s. Minott recalled that in April 2013, a presentation was made by the NRC to the Plymouth Board of Selectman. Minott stated that the purpose of that presentation was to provide some general overview of Entergy's plans and information on what role the NRC played in the construction and operation of dry fuel storage. He also recalled a number of smaller meetings with the Town of Plymouth prior to April 2013 on a variety of different topics, including plans for dry fuel storage at Pilgrim. Tr. 4:10, 34-37, 43- 44; Tr. 5:83-84, 87; Exh. 65.

49. Durkin's primary responsibility was to look at single-family residential sales during a 9-year history from 2005 to 2014. Durkin compared the median sale prices for Massachusetts, Plymouth, and residences within a two-mile radius of Pilgrim for changes in the median sale prices each year. The Durkin Report relied on the Bankers and Tradesman sales data of residential single-family homes in Massachusetts and Plymouth, as well as utilized the Multiple Listing Service of the Board of Realtors sales data for single-family homes within a two-mile radius of Pilgrim. I find these sources of data to be reliable.

The data demonstrated a consistent synchronization of median sale activity among the three markets (Massachusetts, Plymouth, and residences within a two-mile radius of Pilgrim) and with the general economic trends of the same period. In 2005, the median sales price in all three markets was nearly identical, with a $5,000 difference from the lowest median price market (Plymouth) to the highest market (Massachusetts). The data for all three markets showed a nearly matching price drop between 2007 and 2008, a time when the general national economy was down. The data then demonstrates a gradual increase in market value for all three markets beginning in 2011. From 2012 to 2014, the median sales price trend in all three markets continued upward. The Durkin Report acknowledged that the median sales price in the two-mile radius market had a deeper downward trend from 2005 to 2009 compared to the markets in Plymouth and Massachusetts. But, since this price drop occurred prior to the announcement date for the ISFSI project (using either June 2012 or April 2013) and before the start of construction of the ISFSI project, it was unrelated to the potential impact from the ISFSI.

Overall, the results showed that the median sales price in all three markets was consistent with the general economic trends of the same period. The data also showed that there was no negative effect on the median price of homes within the two-mile radius between the time of the public notice of the dry cask storage either in June 2012 and April 2013 and the end of 2014. On the contrary, the data showed a significant market value increase starting in 2011 in the median price of homes within the two-mile radius of Pilgrim. Tr. 3:125-127; Exh. 47.

50. Durkin also compared sales volume for properties in Plymouth and within a two- mile radius of Pilgrim approximately two years before the public announcement (January 1, 2011-January 1 2013) and two years after the announcement (May 1, 2013-May 1, 2015). The results of the Durkin Report show that the announcement date had no impact on the volume of sales within the two-mile radius of Pilgrim. In fact, the volume of sales within the two-mile radius increased in the period following the April 2013 announcement date as compared to the period prior to the announcement. Tr. 3:127-129; Exh. 47.

51. DeCastro's primary responsibility was to do a valuation of the Plaintiffs' properties both before and after the April 2013 announcement date. He did this by using the sales comparison approach. DeCastro visited each of the Plaintiffs' properties personally, took photographs of them, mapped them, analyzed their features, compared those features to other properties in the community, evaluated independent assessors' map resources, and carefully selected comparable properties for each of the subject properties. To select the comparables in performing the appraisals, DeCastro used the Warren information service, which uses parameters to sort for comparable sales. For each of the Plaintiffs' properties Decastro chose two to three comparables. The properties were valued at their highest and best use as residential properties.

a. The Durkin Report appraised Barrett's property at 182 Taylor Avenue at a selling price prior to the April 2013 announcement of the ISFSI project of $145,000 to $150,000. In 2015, the property was appraised at a selling price of approximately $148,000 to $161,000. The value of Barrett's property grew by 5.73%.

b. The Durkin Report appraised Buckbee's property at 223 Rocky Hill Road at a selling price prior to the April 2013 announcement of the ISFSI project of $285,000 to $312,000. In 2015, the property was appraised at a selling price of approximately $325,000 to $335,000. The value of Buckbee's property grew by 9.68%.

c. The Durkin Report appraised Crone's property at 6 Homer Avenue at a selling price prior to the April 2013 announcement of the ISFSI project of $358,000 to $368,000. In 2015, the property was appraised at a selling price of $401,000 to $418,000. The value of Crone's property grew by 12.84%.

d. The Durkin Report appraised Curcio's property at 715 Rocky Hill Road at a selling price prior to the April 2013 announcement of the ISFSI project of $195,000 to $205,000. In 2015, the property was appraised at a selling price of approximately $202,000 to $204,000. The value of Curcio's property grew by 1.63%.

Based on these valuations, the Durkin Report concluded that the Plaintiffs' properties did not suffer a diminution in market value following the April 2013 announcement. In fact, the results of the Durkin Report suggest that there was an increase in the median sales price for the Plaintiffs' properties during this period. The average growth for the Plaintiffs' properties was 7.47%. The average growth in the median sale price for a single-family residence in Plymouth in this period was 9.29%. Tr. 3:129-131, 147-156, 158-164; Exh. 47. [Note 5]

52. Frederick Paris, an original Plaintiff in this action who withdrew as a party prior to the commencement of the trial, sold his property, following the construction of the concrete pad, for its full asking price, near the top of the range of probable sale values that the Durkin Report established. Tr. 3:153-154.

53. DeCastro testified that, in contrast to the announcement of large commercial retail or housing developments, the announcement of the ISFSI project did not make a substantial impact on Plymouth real estate professionals since they had always generally been aware that nuclear material was stored at Pilgrim and the method of the storage was not of substantial consequence to the market. Tr. 4:71.

54. Based on the results of the Durkin Report, Durkin opined that there is no demonstrable diminution in property value resulting from the ISFSI project to Plymouth residents in general and more specifically no diminution effect on the market value of the Plaintiffs' properties. Durkin testified that using the Plaintiffs' proposed June 2012 announcement date would not affect his analysis of the 2005 to 2014 sales comparison, but it may impact the results of the individual analysis of the Plaintiffs' properties done by DeCastro. Tr. 3:125-131, 140-142; Exh. 47.

55. DeCastro also opined that that there was no demonstrable diminution in property value resulting from the ISFSI project. DeCastro testified that although the individual analysis of the Plaintiffs' properties did not cover the period prior to June 2012, the single-family median sales comparison did include an analysis going back ten years, which found that the area within 2 miles of Pilgrim saw a general increase in property values from 2005 to 2014. Tr. 3:146-147; Tr. 4:71-72; Exh. 47.

56. The Plaintiffs did not offer any competing expert appraisal evidence to rebut the testimony of Durkin and DeCastro or the conclusions of the Durkin Report. I credit the Durkin Report, DeCastro's appraisal, and the opinions of Durkin and DeCastro.

III. ANALYSIS OF STANDING

In my August 14, 2014 Memorandum and Order Allowing in Part and Denying in Part Entergy's Motion for Summary Judgment, which is incorporated here by reference, I determined that the abutting Plaintiffs' presumption of standing had been rebutted, and that the Plaintiffs' alleged health, safety, and environmental concerns were either preempted, not particularized, or not cognizable interests protected by the zoning scheme. I did, however, find that Plaintiffs within a two-mile radius of Pilgrim had presented evidence of standing on the basis of lost property values, an interest protected by the Bylaw, sufficient to defeat summary judgment, and dismissed with prejudice the Plaintiffs owning property further than two miles from Pilgrim.

Entergy argues that the Plaintiffs have not carried their burden to establish standing based on diminution of property values. Entergy asserts that the Plaintiffs have not 1) established the violation of a right defined and protected by the applicable zoning scheme, 2) offered credible expert evidence that they suffer a material violation of a private legal interest, or 3) demonstrated that their injury is particularized and different from harms felt by others in the community. Plaintiffs contend that through the testimony of themselves, as well as Dr. Sheppard, they have made the necessary legal and evidentiary showing of standing based on injury to property values.

In order to have standing to challenge the Decision, the Plaintiffs must be "person[s] aggrieved." G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702- 703 (1998). As a general principle, the words "person aggrieved" are not to be narrowly construed. Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). The person aggrieved must be "one whose legal rights have been infringed." Circle Lounge & Grille v. Board of Appeal of Boston, 324 Mass. 427 , 430 (1949). In essence, "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 , 492-493 (1989). "Of particular importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act [or bylaw] is intended to protect, either explicitly or implicitly." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012).

Plaintiffs claim that Entergy's new use of Pilgrim to store nuclear waste in the outdoor ISFSI diminishes their property values, over and above the diminution caused by the plant itself. Because the preservation of property value is not an interest that the G.L. c. 40A scheme is intended to protect, diminution in the value of real estate is only a sufficient basis for standing where it is "derivative of or related to cognizable interests protected by the applicable zoning scheme." Kenner, 459 Mass. at 123, quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 31-32 (2006) (recognizing diminution in value as protected interest when tethered to another recognized interest); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12-13 (2009) (recognizing density as protected interest); Boston Outdoor Ventures, LLC v. Aikens, 19 LCR 200 , 204 (2011) ("Diminution in property value, however, cannot stand alone and must be tied to a recognized harm."). Zoning legislation "is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live." Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 503-504 (1940). "To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision." Kenner, 459 Mass. at 123-124, quoting Standerwick, 447 Mass. at 32.

Therefore, the interest related to the diminution in real estate must be one that is protected by the local zoning bylaw. Such a protected interest can arise from a bylaw's express language or implicitly from the intent of the bylaw's provisions. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 518-519 (2011); see, e.g., Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994) (bylaw expressly protected visual character or quality of the neighborhood); Sheppard, 74 Mass. App. Ct. at 12 (requirements regarding lot size, lot width, and side yard are intended to further the general purposes of the bylaw).

Here, the Plaintiffs' alleged harm to their property values is directly related to their request for zoning enforcement—that the Board failed to require Entergy to obtain a special permit prior to issuing the Permit. Section 205-1 of the Bylaw specifically enumerates that one of the general purposes of the Bylaw is "to conserve the value of land and buildings." The Light Industrial (LI) zoning district section of the Bylaw (the district where Pilgrim is located) states "[t]his district is intended to reserve for a wide range of industries and certain commercial use of a light intensity, clean operational nature." Exh. 3. The Bylaw extensively regulates the types of uses permitted within LI districts. Special permits may be granted to allow the establishment of heavier industries that would not be detrimental to light industries in the district or to adjoining zoning districts. Under the special permit regulations, § 205-9(B)(1)(a)-(d) of the Bylaw, the Board must find that a proposed use is appropriate for the zoning district and will cause "no nuisance or adverse effect upon the neighborhood." Exh. 3.

The injury to property values that the Plaintiffs have alleged relates to the protected interest in the preservation of the value of land and buildings in § 205-1, and is tied to the special permit mechanism of § 205-9 and the LI district requirements of the Bylaw. Although Entergy is correct that the language "to conserve the value of land and buildings" is not found in § 205-51 (LI district regulations), or elsewhere in the Bylaw, this does not mean that no district regulation is intended to safeguard the value of land and buildings. The general purpose in § 205-1 of Bylaw, coupled with the additional requirement that a special permit may only be issued if there is a finding of no nuisance or adverse effect on the neighborhood, make the protection of property values an implicit interest protected by the Bylaw. See Marhefka, 79 Mass. App. Ct. at 521 (density and dimensional requirements of the bylaw the plaintiff sought to enforce make protection of view an implicit interest protected by the bylaw); Central Street, LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487 , 492 (2007) (frontage provisions plaintiff sought to enforce served as mechanism preserving character of the neighborhood and giving rise to cognizable interest in property value).

The Plaintiffs' claim of diminished property values, without more, is not a basis for standing. But where, as here, they are nearby residents who assert diminution in property value as a result of Entergy's violation of the Bylaw's special permit provisions, including the requirement that the ISFSI project not cause a "nuisance or adverse effect upon the neighborhood," then such an intrusion can confer standing. However, "[t]he language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing. To conclude that a plaintiff can derive standing . . . from the language of a relevant bylaw, without more, eliminates the requirement that a plaintiff ‘plausibly demonstrate' a cognizable interest in order to establish that he is ‘aggrieved.'" Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545 (2008), quoting Standerwick, 447 Mass. at 30. The Plaintiffs still bear the burden of producing credible evidence to substantiate their claims regarding the potential impact to their property values in order to bring themselves within the legal scope of that protected interest.

Although Plaintiffs have asserted a cognizable interest protected by the Bylaw, they have failed to sufficiently demonstrate that they have suffered a material violation of that interest; that is, a "definite violation of a private right, a private property interest, or legal interest." Harvard Square Defense Fund, Inc., 27 Mass. App. Ct. at 493. To establish that special and different injury, and thus their standing, the Plaintiffs must present evidence that is both quantitatively and qualitatively sufficient. Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 451 (2008). "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." Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005), citing Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 724 (1996).

The Plaintiffs have not offered credible evidence to support their claim that the presence of the ISFSI project, as opposed to the presence of Pilgrim generally, negatively impacts their property values. Plaintiffs Buckbee, Barrett, and Curcio testified at trial about the basis for their concerns. They testified as to the general characteristics of their properties, the location and proximity of their properties to Pilgrim, and the negative attention they personally noticed in the media regarding the ISFSI project at Pilgrim. Buckbee and Curcio also testified as to their future plans for putting their properties on the market as part of their retirement plans. The Plaintiffs' belief that the ISFSI project will negatively affect their property values and their indefinite plans to sell their properties at some future time does not qualify as credible evidence that the claimed diminution in value will occur as a result of permitting the ISFSI.

The Plaintiffs' sole expert witness on the subject was Dr. Sheppard, a professor of economics at Williams College who has experience evaluating the impact of disamenities on local real estate markets. At trial, Dr. Sheppard opined that the presence of the ISFSI project and the extended life of the plant would cause a diminution in property values for residences within a two-mile radius of Pilgrim. Dr. Sheppard based his testimony on his experience as an economist specializing in urban economies, and an analysis of available studies and media articles.

Dr. Sheppard's primary literature review consisted of two hedonic studies of the impact of ISFSIs on property values and one unpublished research paper related to the impact of Pilgrim (not specifically the ISFSI project) on property values. Dr. Sheppard first consulted the 1997 Metz & Clark Study involving properties surrounding Rancho Seco, a decommissioned nuclear plant in California. The Metz & Clark Study found no property value effect per mile moved away from Rancho Seco regardless of whether the plant was operating or closed, or whether the SNF was to be placed in dry cask storage facilities immediately or part of a future action. Dr. Sheppard ultimately rejected the findings in the Metz & Clark Study, instead relying on the results of the Clark & Allison Study, which was more recent and had a larger sample size and more control variables. Tr. 2:68-69, 71-73, 118-119, 129-130; Tr. 3:20-22, 38-41.

The Clark & Allison Study demonstrated a statistically significant increase in real housing prices per mile moved away from Rancho Seco. In both the Metz & Clark and Clark & Allison studies, the ISFSI was considered part of the plant, and not isolated, when the impact to property values was considered. When the ISFSI was isolated, the results of the study found no evidence to support a significant detrimental influence of the announcement of an ISFSI on sale prices in the area. Tr. 2:68-69, 71-73, 103-104, 119-121; Tr. 3:16-20, 23, 30-31, 39-40, 97-98. Even if the Clark & Allison Study had revealed that the announcement of the ISFSI had an impact on property values distinct from the impact from the existence of the plant itself, this study did not concern Pilgrim or properties in the Town of Plymouth. The results of the Clark & Allison Study are tied to the Rancho Seco plant in California. Dr. Sheppard relied on this study to extrapolate that ISFSIs in any location typically diminish nearby property values. Without further evidence, it is tenuous to extrapolate the results from a study conducted on the other side of the country, for a different power plant, to find that the Pilgrim ISFSI, in a different real estate market, in an entirely different state, would have the same effect.

Dr. Sheppard also based his analysis on the Prest Study, an unpublished, non-peer-reviewed, senior thesis paper completed by a student under Dr. Sheppard's supervision. The Prest Study uses local property data and analyzes the impact of Pilgrim on the real estate market in Plymouth. Dr. Sheppard utilized the Prest Study to support his determination that the plant itself is a disamenity that depresses the value of the Plaintiffs' properties and that this depressive effect is allowed to continue only due to the ISFSI project. Though Dr. Sheppard attested that he did not rely on the conclusions in the Prest Study in forming his ultimate opinion, but only took it into consideration, the Prest Study is still not credible evidence that the ISFSI project impacts property values within a two-mile radius. The Prest Study does not isolate the ISFSI project from the rest of the existing plant or consider impacts from the ISFSI in any way. In fact, the study was completed in 2009, years before Entergy sought a permit for the ISFSI project and prior to when construction on the concrete pad began. Tr. 1:141-143, 156, 160-162, 170-171; Tr. 2:29-30, 48-49, 81; Tr. 3:12-14, 46-47, 95-96. The only conclusion that can be drawn from the results of the Prest Study is that Pilgrim, in general, has a negative impact on property values within two miles. This study is not evidence that the ISFSI has a separate effect apart from the effect of the plant itself.

Dr. Sheppard secondarily consulted several hedonic models of unrelated, non-ISFSI disamenities. Dr. Sheppard drew conclusions from studies of disparate disamenities such as brownfields, storage tanks, landfills, and superfund sites. [Note 6] These disamenities are different and distinguishable from an ISFSI at a nuclear power facility. He also relied on other studies regarding the transportation of SNF on rail lines and the impact of a nuclear power plant on agricultural property values, which are dissimilar to the particulars of this action. [Note 7] His reliance on these other studies was speculative and based on assumptions not supported by the evidence.

Further, Dr. Sheppard relied on numerous media articles to establish a basis for the perception of risk experienced by reasonably informed real estate market participants and the homeowners of property in close proximity of Pilgrim. He testified that "media reports are one of a few conduits through which prospective buyers and sellers of residential property can come to learn about what the nature of the risks are and form an assessment of the probabilities of their occurrence." Tr. 2:31-32. Dr. Shepard relied on numerous articles, only a handful of which discussed the ISFSI project. Not all discuss the ISFSI project in a negative light, and some actually speak favorably about the ISFSI project. Exh. 46. Moreover, it is unclear whether these media articles are a fair representation of the sort of media coverage that a typical buyer of residential real estate would be exposed to. Tr. 2:16, 136; Tr. 3:55-56, 98. Karen Vale, program director at Cape Cod Bay Watch, a Pilgrim-focused advocacy group, testified that she collected the articles consulted by Dr. Sheppard without knowing that they would ultimately be provided to him for use in this matter. She was never notified regarding which types of media coverage would be relevant to his analysis. The articles were eventually provided to Dr. Sheppard by the Plaintiffs. Tr. 3:31-32, 61. Dr. Sheppard testified that he does not commonly accept datasets from his clients, which he then uses to render opinions. He testified that was unsure whether the articles were a fair representation, and that he could only infer and make the assumption from reading through them that they represented a range of viewpoints expressed in the community. Tr. 2:135-138; Tr. 3:9-10. Even accepting that the media reports were a representative sample, the content of these articles does not support Dr. Sheppard's conclusion. None of the articles could be understood by a reasonable purchaser to suggest that the ISFSI project presented an increased harm to the surrounding property values.

In short, Dr. Sheppard's broad conclusions concerning the Plaintiffs' properties were not based on any data from the neighborhood surrounding Pilgrim. Dr. Sheppard relied solely on academic literature and media articles. Dr. Sheppard's expert report and testimony did not contain any original research on the Plaintiffs' specific property values, any other property in Plymouth, or any research specific to the impact of the ISFSI project proposed at Pilgrim on those properties that is separate from and additional to any effect caused by Pilgrim. Rather, his conclusions about the ISFSI project's effect on the Plaintiffs' property values were based on studies of plants other than Pilgrim or disamenities other than ISFSIs. Dr. Sheppard's opinions lack a sufficient basis to support a conclusion that Plaintiffs have suffered a particularized injury to their property values as a result of the ISFSI project.

On the contrary, the testimony of Durkin and DeCastro, and the results of the Durkin Report and DeCastro's appraisal, which I find to be credible, reveal that the Plaintiffs are not suffering a harm to their property values caused by the ISFSI project. The Durkin Report focused on the valuation of the Plaintiffs' properties before and after the public notice of the proposed SNF dry storage. For the purposes of their analysis, an announcement date for the ISFSI of April 2013 was used. The Durkin Report first looked at single-family residential sales from 2005 to 2014. They compared the median sales prices for residences in Massachusetts, in Plymouth, and within the two-mile radius of Pilgrim for changes in the median sales prices each year. The Durkin Report showed that the trends of the median sales prices in all three markets was consistent with the general economic trends of the same period. In 2005, the median sales price in all three markets was nearly identical. The data for all the markets showed a price drop between 2007 and 2008, a time when the general national economy was on a downward slope. Beginning in 2011, there was a gradual increase in market value, and from 2012 to 2014, the median sales price trend in all three markets continued to trend upward. Though the report did acknowledge that the median sales price in the two-mile radius had a deeper downward trend from 2005 to 2009 compared to the other markets, this drop occurred before the announcement date in 2013. Therefore, this price drop is not evidence of an impact from the ISFSI project. Overall, the data showed that there was no negative effect on the median price of homes within the two-mile radius between the time of the public notice of the dry cask storage in April 2013 and the end of 2014. Contrary to the Plaintiffs' assertions, the data actually showed a significant market value increase in the median price of homes within the two-mile radius of Pilgrim starting in 2011 and continuing to 2014. Exh. 47.

The Durkin Report also compared sales volume for properties in Plymouth and within a two-mile radius of Pilgrim at two points in time: approximately two years before the public announcement (January 1, 2011-January 1 2013) and two years after the announcement (May 1, 2013-May 1, 2015). The results show that the announcement date also had no impact on the volume of sales within the two-mile radius of Pilgrim. In fact, the volume of sales within the two-mile radius increased in the period following the announcement date as compared to the period prior to the announcement. Exh. 47.

The Plaintiffs' individual properties were appraised by DeCastro both before and after the announcement date to study any potential impacts. DeCastro visited each of the Plaintiffs' properties personally, took photographs of them, mapped them, analyzed their features, compared those features to other properties in the community, evaluated independent assessors' map resources, and carefully selected comparable properties for each of the subject properties. Tr. 3:148. The report concluded that the Plaintiffs' properties did not suffer a diminution in market value after the announcement date, between January 1, 2013 and May 26, 2015. The value of the properties actually grew during this time period by an average of 7.47%: Buckbee's property value grew by 9.68%, Curcio's property value grew 1.63%, Crone's property value grew by 12.84%, and Barrett's property value grew by 5.73%. After evaluating the Plaintiffs' specific properties, the Durkin Report compared the results with trends in property values in Plymouth. The median sale price for a single-family residence in Plymouth increased by 9.29% from January 2013 to April 2015. The average growth rate of the Plaintiffs' properties, while slightly less than that of Plymouth residences in general, is still aligned with the general trend in the local real estate market. These valuations are also supported by the fact that Frederick Paris, an original plaintiff in this action who withdrew prior to trial, sold his property following the construction of the concrete pad for its full asking price, very near the top of the range of probable sale values that DeCastro established in the report. Tr. 3:153-154; Exh. 47.

Based on the results of the Durkin Report, Durkin and DeCastro opined that there is no demonstrable diminution in property value resulting from the ISFSI project to Plymouth residents in general or those within a two-mile radius of Pilgrim, and, more specifically, no diminution effect on the market value of the Plaintiffs' properties. Tr. 3:125-131, 144-154; Exh. 47. The Plaintiffs did not offer any competing expert appraisal evidence to rebut the testimony of Durkin and DeCastro or the conclusions of the Durkin Report. The Plaintiffs' criticism that Durkin and DeCastro should have used June 2012 as the announcement date is also immaterial. DeCastro testified that though the Plaintiffs individual properties were not evaluated using the June 2012 announcement date, the data in the Durkin Report shows that property sales within a two-mile radius of Pilgrim rose consonant with property values in Plymouth generally beginning in 2011. Thus, using either announcement date, there is no evidence in the Durkin Report to suggest that the Plaintiffs' property values were impaired due to the ISFSI project.

Because I find the testimony of the Plaintiffs and Dr. Sheppard to be insufficient to support a claim of aggrievement based on diminution in property value, and I find the testimony of Durkin and DeCastro and the results of the Durkin Report to be credible, the Plaintiffs have failed satisfy their burden of showing they are "person[s] aggrieved" within the meaning of G.L. c. 40A, § 11. [Note 8]

Having found that the Plaintiffs lack standing, I need not address whether the Board abused its discretion in upholding the DIS's issuance of the Permit. Nevertheless, in the interest of completeness, I do so below, beginning with further findings of fact based on the view, the undisputed facts, the admitted exhibits, the testimony at trial, and my assessment of credibility.

IV. FINDINGS OF FACT – ZONING PERMIT

57. On June 23, 1967, Entergy's predecessor, Boston Edison, applied to the AEC, the predecessor to the Nuclear Regulatory Commission (NRC), "for all licenses necessary for the construction by it of a nuclear power station." As part of its AEC license application, Boston Edison submitted a Design and Analysis Report (DAR) to the AEC. Exh. 1, PMF ¶¶ 104, 117; Exh. 9.

58. The DAR was an early document containing hundreds of pages of plans and specifications for Pilgrim. It was a compendium of the design basis of the plant, with many of the system descriptions and the operating parameters defined. It provided the AEC with all of the design criteria such as environment, location, systems to be used, and why the site was suitable for construction of a nuclear power plant. The DAR did not make reference to dry cask fuel storage, but did discuss spent fuel storage, handling of spent fuel, and the use of shipping casks for off-site storage. Exh. 1, PMF ¶ 120; Tr. 5:44; Tr. 6:148-149; Tr. 7:73-74; Exh. 71.

59. On July 26, 1967, Boston Edison applied for a special permit for the construction of Pilgrim. Specifically, the application states:

Boston Edison Company, a public utility corporation, herewith applies, under the provisions of Section VII-B-2 and Section III-A-2(f) of the Plymouth Zoning By- Law, for a special permit to construct a nuclear power station and associated transmission facilities on property owned by it on both sides of Rocky Hill Road, in accordance with its License Application dated June 23, 1967, to the Director, Division of Reactor Licensing, United States Atomic Energy Commission, and the Design and Analysis Report referred to therein, copies of which are on file with the Board of Selectmen of the Town of Plymouth, with such modifications as may be approved by the United States Atomic Energy Commission.

The project will not include a repair station or outside storage of supplies. In the opinion of the applicant the use involved will not be detrimental to the established or future character of the neighborhood and Town, and the conditions and safeguards imposed by the United States Atomic Energy Commission will be appropriate and sufficient.

At the time Boston Edison applied for its special permit, the nuclear power industry plan was to store spent fuel in pools for a few years, until it had sufficiently cooled, and then to ship it offsite to be "reprocessed." Exh. 1, PMF ¶ 102; Exh. 8; Tr. 5:40-43.

60. The Town of Plymouth Bylaw of 1962 (1962 Bylaw) was in effect when Boston Edison applied for the special permit in 1967. Exh. 1, PMF ¶ 96; Exh. 4.

61. In 1967, the land upon which Boston Edison proposed to build Pilgrim was zoned as a Residential R20 Zone under the 1962 Bylaw. Exh. 1, PMF ¶ 97; Exh. 4.

62. Under the 1962 Bylaw, a nuclear power station was not a permitted use in the Residential R20 zoning district. Exh. 1, PMF ¶ 98; Exh. 4.

63. Under Section III-A(2)(f) of the 1962 Bylaw, "structures for public utility corporations, not including repair stations or outside storage of supplies" was identified as a use "which may be permitted by the Board of Appeals in accordance with Section VII-B-2" of the Bylaw. Section VII B-2 authorized the Board to grant a special permit "when it shall have found that the use involved will not be detrimental to the established or future character of the neighborhood and Town and subject to appropriate conditions or safeguards if deemed necessary." Exh. 1, PMF ¶¶ 99-100; Exh. 4.

64. Under Section III-A(1)(E) of the 1962 Bylaw, the categories of allowed uses in the Residential R20 district included "accessory uses customarily incidental to a permitted main use on the same premises." Exh. 1, PMF ¶ 278.

65. On August 22, 1967, the Board issued a special permit to Boston Edison for the construction of Pilgrim (1967 Special Permit). The 1967 Special Permit states it is for the construction "of a structure for a public utility corporation, namely a nuclear-powered generating plant and associated buildings, roads and transmission facilities . . . in an R-20 zone." Exh. 1, PMF ¶ 108.

66. In its decision granting the 1967 Special Permit, the Board found that "the use granted will not be detrimental to the established or future character of the neighborhood and the town in view of the conditions and safeguards which will be imposed by the United States Atomic Energy Commission upon the operation of any such nuclear power plant, and the comparative isolation of the site and the plant itself." Exh. 1, PMF ¶ 95; Exh. 5; Tr. 5:42-44.

67. Minott testified that in his day-to-day work using the 1967 Special Permit he interpreted the phrase "in view of the conditions and safeguards which will be imposed by the United States Atomic Energy Commission" to refer to regulations imposed by the AEC, now the NRC. Tr. 5:43-44

68. When the 1967 Special Permit was applied for and granted, ISFSI technology did not exist. The first ISFSI licensed in the United States was in 1986. Tr. 7:88.

69. In 1972, the AEC issued an Operating License to Pilgrim stating that the AEC "found that construction of the Pilgrim Nuclear Power Station (the facility) has been substantially completed in conformity with the application, as amended." Exh. 1, PMF ¶ 119, EMF ¶ 26.

70. After a number of amendments, the DAR evolved into a report called the Preliminary Safety Analysis Report (PSAR), and, after the Operating License was issued in 1972, further evolved into the Final Safety Analysis Report (FSAR). The FSAR is similar to the DAR in that it is a compendium of the plant design basis and contains system descriptions. It is the complete set of design basis records. Since 1972, the FSAR has been updated every two years to reflect the changes that the plant has experienced during that two-year cycle. It is a living document that changes along with changes to the facility and regulations that affect the facility. Tr. 5:44-45; Tr. 6:127-128; Tr. 7:73-75, 81, 115-116.

71. Since 1972, Pilgrim has operated under AEC and NRC Operating Licenses and is licensed to operate until June 2032, though it will be decommissioned in 2019. When Pilgrim is decommissioned, it will cease all power generation. Exh. 1, PMF ¶ 8, EMF ¶¶ 26, 72; Tr. 3:98; Tr. 4:20-21; Tr. 6:144; Tr. 7:83.

72. After Pilgrim was built, five more special permits were issued by the Board to Boston Edison between 1972 and 1989 for various post-construction structures at Pilgrim. After 1989, however, numerous buildings and structures were added without prior application for a special permit. Exh. 2.

73. Under § 205-5 of the current Bylaw, zoning approval and building approval are two separate processes. To exercise an allowed use, an owner must secure a zoning permit certifying compliance with the Bylaw before obtaining a building permit to build a structure permissible under the Bylaw. Exh. 3.

74. Since 1989, approximately 17 zoning permits have been approved by right for various post-1967 Special Permit construction uses and structures at Pilgrim, including a 100,000 square foot engineering office in 1992 and a sludge dewatering facility in 1993. Exh. 2.

75. During the 1970s, when many nuclear power plants in the United States were built, the original plan was to ship SNF off-site periodically to be reprocessed at a different site. The reprocessing would break down the fuel into usable and unusable elements so that it could be reused in different types of reactors. Around 1977, the idea of reprocessing the SNF was dismissed over concerns about nuclear nonproliferation. In 1982, the Nuclear Waste Policy Act established that the federal government, specifically the Department of Energy, would have responsibility for establishing a repository and removing the SNF to be stored offsite. While at the time it was expected that removal would start around 1999, there has been no removal to date. Pilgrim's SNF must be stored on site until an offsite interim or permanent repository is available. No date upon which spent nuclear fuel in the ISFSI will be moved offsite of Pilgrim has been identified. There is not now and never has been an offsite permanent or interim SNF storage site in the United States. Exh. 1, PMF ¶¶ 76-77, 186-187, 192, EMF ¶ 31; Tr. 5:19, 33, 118-119; Tr. 6:150; Tr. 7:91-92.

76. SNF is a natural byproduct of nuclear power generation. Nuclear fuel is determined to be spent when it no longer can efficiently support core operations. At Pilgrim, nuclear fuel is contained in fuel assemblies—receptacles six inches by six inches by fourteen feet that contain a number of rods of uranium oxide fuel. Every two years there are a certain number of fuel assemblies that are selected to be defined as spent and are discharged. Since Pilgrim began operations in 1972, all SNF that has been discharged has been stored in the spent fuel pool within the reactor building. The spent fuel pool is a 30-foot by 40-foot structure, 40 feet deep, consisting of a heavily reinforced concrete and steel liner. At the bottom of the pool are specially designed racks to hold the spent fuel assemblies. The pool has about 25 feet of cover water over the fuel assemblies. The water provides a cooling mechanism to remove heat emanating from the SNF. Tr. 4:22; Tr. 5:17-20; Tr. 6:115-116.

77. Beginning in 1998, Boston Edison, and thereafter Entergy, started to consider dry fuel storage as an alternative to the wet storage in the spent fuel pool in the event that the Department of Energy did not permit removal and offsite transfer of the SNF. Entergy has a corporate policy, as do many other nuclear power plants across the country, to maintain enough reserve space in the spent fuel pool so that the entire core can be unloaded at any time for the purpose of performing maintenance or inspections in the reactor. The dry fuel storage would allow for SNF to be removed from the pool to provide this reserve space. In 2009, Entergy initiated the ISFSI project plans, appointing Minott as project manager. Tr. 4:27, 30; Tr. 5:83-84, 87; Tr. 7:95-97.

78. The ISFSI project will enable Entergy to take the SNF generated by Pilgrim and transfer it from the current location in the spent fuel pool inside the reactor building to dry casks that will be placed on the concrete pad outside the reactor building. No additional SNF from other sites will come on to the Pilgrim site. Pilgrim is only licensed to possess spent fuel that it has produced. Exh. 1, PMF ¶ 33; EMF ¶ 46; Tr. 2:130; Tr. 5:33.

79. The ISFSI project operates as follows. When the spent fuel assemblies are ready to be removed from the wet pool storage, they are transferred into a metal multi-purpose canister (MPC) that is then welded shut. The MPC, in turn, is inserted into a vertical cylinder composed of steel and two-foot thick concrete—a dry cask. The spent fuel never leaves the sealed MPCs once they are welded shut. All of this fuel transport occurs inside the reactor building. The sealed MPCs are referred to as "dual-purpose" canisters because the sealed MPCs are compatible with both the storage of fuel as well as with potential eventual transport to remove the fuel from the site. Tr. 5:21-23, 117-118; Tr. 7:55-56, 122-123.

80. The dry casks that Entergy is using are a type of dry cask called HOLTEC HiStorm 100 (Holtec cask) that is licensed by the NRC. Each Holtec cask is about 18 feet tall, 11 feet wide, and when fully loaded weighs 360,000 pounds. Each dry cask can hold one MPC, containing approximately 68 spent fuel assemblies. The casks create a moisture-free environment, typically purged with an inert gas to remain dry, and the cask itself provides shielding, in the same way the water does in the spent fuel pool. Once the cask is loaded with the MPC, the whole cask and MPC is transferred from inside the reactor building to a large outdoor concrete pad, by moving it along a haul path running approximately 225 feet from the reactor building to the pad. Once on the pad, the cask is a passive coolant. It contains four vents to allow air to go in, and through convection it provides cooling as it travels up the outer surface of the MPC. The casks and pad will not be covered and will not have a roof. The casks themselves provide cover for the MPC. The casks are not fixed in any way to the pad and are considered equipment by the DIS, Paul McAuliffe (McAuliffe), not structures. I credit McAuliffe's opinion that the casks are equipment. Exh. 1, PMF ¶¶ 35, 86, 177-178, 204; Tr. 5:20-28, 36-37, 117-118, 123-124; Tr. 6:24, 113, 116; Tr. 7:55; View.

81. The concrete pad has the capacity to hold 40 Holtec casks. The sole purpose of the pad is to serve as a foundation to hold the casks. It does not have any other function. The ISFSI project is an entirely passive system. It does not make any sounds, have lights or emit any odors. It does not use electricity, water, or have any mechanical parts that require maintenance. The only maintenance the casks require are inspections at regular intervals twice a day by the operations department at Pilgrim to make sure that the vents remain clear for the proper flow of air. They monitor the air intakes and the air discharges for blockages to ensure that the natural circulation cooling is not hampered. In addition, monthly radiation measurements are also taken at a number of different levels on each cask to ensure that the radiological dose rates are remaining stable for the cask. Exh. 1, PMF ¶ 78; Tr. 5:32-33, 37-38; Tr. 7:99-100.

82. Pursuant to 10 CFR 50 § 73.51, SNF and high level radioactive waste must be stored within a "protected area." The general public is prohibited from entering on to the 517- acre Pilgrim site and the surrounding property owned by Entergy, totaling 1,600 acres. Maintenance of the protected area around the ISFSI is required for the storage of SNF, and must be maintained for as long as the SNF remains stored on the Pilgrim site. Exh. 1, PMF ¶¶ 90-92, 94; View.

83. There are several other components that, while not considered part of the ISFSI project, support the ISFSI project and are considered part of the protected area, including the haul path, soldier pile wall, and a retaining wall. Exh. 1, PMF ¶ 72, 86, EMF ¶¶ 43, 45; Tr. 5:28- 29; Exhs. 16-21; View.

84. As discussed, the haul path is the roadway that is used to transport the loaded casks from the reactor building onto the concrete pad. The haul path did not require any zoning or building permits. Tr. 5:28, 46-47; Tr. 6:12; View.

85. The soldier pile retaining wall was built after the hill that existed behind the pad was cut back to provide room for the location of the pad. When McAuliffe visited Pilgrim in November 2012, he informed Entergy that the soldier pile wall required a zoning permit. A zoning permit for the soldier pile wall was issued on December 12, 2012. Tr. 5:28-29, 52-54, 56, 112-113, 162-163; Tr. 6:13; Exhs. 34-35, 55-56; View.

86. The ISFSI and dry cask storage is required to maintain full core off-load capability pursuant to Entergy's corporate policy. Exh. 1, PMF ¶ 39, EMF ¶ 38; Tr. 4:26-30.

87. The ISFSI project does not increase the amount of SNF at Pilgrim. The amount of spent fuel at Pilgrim is a function of the operation of the reactor, not the manner in which the fuel is stored. Tr. 4:31; Tr. 5:38; Tr. 7:94-95.

88. The ISFSI project does not increase the frequency of handling the spent fuel or the amount of times that fuel has to be touched. When fuel is placed into the MPCs and sealed, dried, and put on the pad, the SNF is only handled once. Tr. 7:97.

89. Joseph Lynch (Lynch) has been the licensing manager at Pilgrim since 2007, and most recently was promoted to government affairs manager for both Pilgrim and the Vermont Yankee power plant. Lynch has over 34 years of experience working in the nuclear industry and has worked at seven different power plants. He testified that all the power plants he has worked at utilize ISFSIs. As licensing manager, Lynch had the primary responsibility of interfacing with the NRC to obtain the Operating License as well as filing the FSAR. He also provided support to all NRC inspections. Tr. 7:69-71.

90. Lynch testified that nuclear power facilities are regulated under NRC regulations found in 10 CFR 50 and need to obtain a "Part 50" license for operation. To obtain a Part 50 operating license, the applicant must satisfy several requirements to demonstrate it is capable of operating such a facility. The applicant does so by filing a FSAR with the NRC that describes the design basis of the plant. Entergy has obtained a Part 50 Operating License from the NRC for operations at Pilgrim. The Part 50 license was first granted in 1972, and has since been modified hundreds of times. Tr. 7:71-72, 75, 82, 85.

91. Lynch testified that the Part 50 license incorporates decommissioning as part of the lifecycle of a plant. It addresses not only the normal operation, but also the decommissioning and the requirements for terminating the license. Lynch noted that once a plant is decommissioned, the owner of the facility may change its Part 50 license to a possession-only license. After the plant has been decommissioned, the NRC sets criteria for terminating the Part 50 license. Tr. 7:71-72, 75, 85-86, 102-105.

92. In order to use dry fuel storage at Pilgrim, Entergy obtained a Part 72 license from the NRC, which is automatically granted based on Entergy's Part 50 Operating License. The Part 72 license provides Entergy with a license to store fuel as part of an ISFSI project on-site provided that the cask used has been approved by the NRC, 10 CFR 50 § 72.214. The Holtec cask is one of the casks pre-approved by the NRC. After selecting a cask, Entergy worked with the cask vendor, Holtec, to ensure that the cask met the facility requirements. These included ensuring that the cask was licensed to accept the type of fuel in the reactor and spent fuel pool, evaluating whether the cask can survive an earthquake, studying ground movements at Pilgrim, and making sure the FSAR for the cask meets all the Pilgrim-specific criteria. Entergy was also required to inform the NRC 90 days prior to loading any casks, which it did. Tr. 5:46; Tr. 6:120- 123; Tr. 7:72-73, 84-88, 105-109.

93. Lynch testified that as licensing manager he did not interpret the 1967 Special Permit as specifying or limiting the means of SNF storage at Pilgrim. Tr. 7:80-81.

94. Lynch stated that it is common at nuclear power plants in the United States to have the spent fuel pool located either inside the reactor building, like at Pilgrim, or in a separate building outside the reactor building. The NRC has indicated that dry fuel storage is an acceptable method of storing fuel and that it is a widely used method of storing spent fuel across the industry. Tr. 7:88-89, 100.

95. On February 14, 2013, Entergy applied for a zoning permit to construct a 52 feet by 238.5 feet concrete pad on a vacant portion of the Pilgrim property that would be used for storage of SNF as part of the ISFSI project. Several plans of the ISFSI project and concrete pad were submitted along with the application to provide an overview of the extent of the pad. In November 2012, prior to Entergy filing its permit application for the pad, McAuliffe visited the site to view the area where the ISFSI project would be installed. At the visit, the overall project was described to him. During the review process, McAuliffe also requested additional information from Entergy regarding the ISFSI project and sought more detailed drawings and plans. Any information requested by McAuliffe was provided by Entergy. Exh. 1, PMF ¶¶ 132, 180, EMF ¶ 64; Exhs. 10, 14, 16-18; Tr. 5:56-59, 161-162; Tr. 6:11-12, 16-18, 28, 94.

96. Section 205-1 of the Bylaw provides: "In pursuance of authority conferred by M.G.L. c. 40A, §§ 1 to 17, inclusive, and all acts in amendment thereof, and for purposes including but not limited to promoting the health, safety, convenience, and welfare of the inhabitants of the Town of Plymouth, and more particularly to promote the most appropriate use of land throughout the Town in accordance with a comprehensive plan; to preserve and increase its amenities . . . to conserve the value of land and buildings . . . the Town of Plymouth does hereby enact the following regulations to be known as the ‘Zoning Bylaw of the Town of Plymouth.'" Exh. 1, PMF ¶ 224; Exh. 3.

97. Section 205-3(A) of the Bylaw states that "[f]or all purposes of this bylaw, the following words and phrases shall have the meanings given herein unless clearly stated or implied to the contrary." Exh. 1, PMF ¶ 226; Exh. 3.

98. Section 205-3 of the Bylaw defines "Accessory Use or Structure" as a "use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure." Exh. 1, PMF ¶ 227, EMF ¶ 52; Exh. 3.

99. Section 205-3 of the Bylaw defines "Structure" as "A combination of materials assembled at a fixed location to give support or shelter, such as a building, bridge, tower, retaining wall, tank, tunnel, platform, fence, screen, sign, flagpole, or the like; also implies ‘structure or part thereof.'" Exh. 3.

100. Under Article V of the Bylaw, there are 17 zoning districts. None of the regulations for the 17 zoning districts identifies an accessory use or structure as an allowed use. Exh. 1, PMF ¶¶ 229-230; Exh. 3; Tr. 6:76-77.

101. The Pilgrim reactor facility is located on Lot 044-000-001B-000, as shown on the Town of Plymouth Assessor's Map (Lot 1B). Lot 1B is approximately 517 acres. The ISFSI is located on Lot 1B. Lot 1B is in the Light Industrial (LI) zoning district under the Bylaw. Exh. 1, PMF ¶¶ 15, 17-18, 21, 94.

102. All of the land abutting Lot 1B on its landward side is in the Rural Residential zoning district under the Bylaw. Exh. 1, PMF ¶ 24.

103. Section 205-51 of the Bylaw governs land uses in the LI District where Pilgrim is located. Section 205-51(C)(3) identifies "utility plants and substations" as a special permit use. Exh. 1, PMF ¶¶ 235, 243; Exh. 3.

104. The principal use of Lot 1B is the generation of power. Exh. 1, PMF ¶ 19.

105. The estimated cost of constructing the concrete pad was approximately $700,000. The estimated cost of furnishing and filling each dry storage cask is approximately $2 million. Exh. 1, PMF ¶ 201; Tr. 7:16-23.

106. In 2013, the assessed value of Lot 1B was approximately $611 million. It is presently assessed at a value of approximately $568 million. Tr. 5:62.

107. On March 27, 2013, the DIS approved Entergy's application and issued the Permit. McAuliffe wrote on the Permit: "the construction of a concrete pad to accommodate modular dry cask storage units is an accessory use and structure subordinate to the principal use of power generation of Pilgrim Station subject to Conservation Comm. conditions." No conditions were ever imposed by the Conservation Commission. Exhs. 11, 22; Tr. 5:59-62.

108. The version of the Bylaw as amended through October 2012 was in effect when the DIS issued the Permit for construction of the concrete pad to accommodate dry cask fuel storage units in association with the ISFSI project. Exh. 1, PMF ¶¶ 219, 221; Exh. 3.

109. McAuliffe has a Bachelor's Degree in communications and as a building official, regularly takes courses about the state building code, zoning code, and changes to those codes. He has worked in the inspectional services field for 14 years, and has served as the DIS in Plymouth for the past 8 years. McAuliffe stated that he receives about 6,000 to 7,000 zoning permit applications a year, all of which are reviewed by him. McAuliffe testified that he reviewed the 1967 Special Permit and researched the general use of Pilgrim to conclude that the principal use was power generation. He testified that he believed the 1967 Special Permit is still valid, though ownership of Pilgrim has changed, since the permit was issued for Lot 1B and not for a particular owner of the site. Tr. 6:6-9, 21, 95-96.

110. McAuliffe opined that, based on the Bylaw, accessory uses are permitted in all zoning districts if they meet the Bylaw's definition of "accessory use," including in the LI district, and that not all accessory uses require a special permit. He stated that it was policy to allow accessory structures in any district, and he routinely grants a zoning permit for an accessory use if the use is not prohibited. McAulifee testified that the ISFSI is not a prohibited use in the LI zoning district. In considering whether the ISFSI was "customarily incidental," McAuliffe stated he looked at factors such as the type of use. He analyzed what other power plants were doing with their storage of SNF and how it was permitted. McAuliffe testified that after reviewing the application, the Bylaw, and thinking about the primary use of the property and other accessory uses both in the Town, in Massachusetts, and across the country, he concluded that the ISFSI project satisfies the definition of "accessory use" because the storage of SNF is a byproduct of power generation, the principal use of Pilgrim. McAuliffe was unaware of Entergy's long-term plans related to the zoning permit application and did not review or consider the cost of the ISFSI project in reaching his conclusion. Tr. 6:19-24, 26, 34-35, 38, 81-84, 90-92; Exh. 63.

111. McAuliffe testified that although the zoning permit for the soldier pile wall was obtained separately, he did not believe that the permitting fort the ISFSI project was segmented. McAuliffe also asked the Town of Plymouth Planning Board whether site plan review was necessary and received an email from Lee Hartmann (Hartmann), director of planning and development in Plymouth, stating site plan review of the ISFSI project was not required. Tr. 6:14-16, 26-28, 108; Exh. 64.

112. Hartmann has a Master's Degree in regional planning from the University of Massachusetts and is a member of the American Institute of Certified Planners. He has been the director of planning and development for the Town of Plymouth for 14 years. Hartmann was aware of Entergy's zoning permit application for the ISFSI project at the time it was filed and reviewed it to determine whether the concrete pad would require site-plan review by the Planning Board. After consulting with the chairman of the Planning Board, Hartmann drafted an email to McAuliffe concluding that no site plan would be necessary for the concrete pad. Hartmann stated three reasons why site plan review was not required: 1) the pad was an allowed use, 2) it would not be visible from a public way, and 3) the pad was not a significant structure. He testified that the pad was comparable to the installation of a driveway, in that such paved areas, which are at surface level and may already be impervious surfaces, do not require review from the Planning Board. Tr. 6:97-99, 101-102, 108; Exh. 64.

113. After receiving the zoning permit, Entergy applied for a building permit on April 12, 2013 for the construction of the concrete pad. McAuliffe again requested additional documentation, which Entergy provided. On July 30, 2013, the building permit application was approved by DIS. Exhs. 12-13, 25, 27; Tr. 5:62-64; Tr. 6:29-33, 94.

114. The Permit was appealed to the Board. After public hearings held on June 12 and July 10, 2013, the Board issued a Decision on July 24, 2013, by a vote of 3-2, upholding McAuliffe's decision to grant the Permit for construction of the concrete pad. Exh. 2.

115. In reaching the decision to uphold the Permit, Board members Edward Conroy, David Peck, and Peter Connor found that "the storage of spent fuel, if not a part of the principal use of energy generation from nuclear fuel, is at least customary, incidental and subordinate to the principal use, and therefore constitutes an accessory use." They agreed that special permit uses can have accessory uses. Exh. 2.

116. The two Board members who voted against upholding the issuance of the Permit, Michael Main and William Keohan, stated that the purpose of the 1967 Permit was for nuclear power generation and associated activities which at the time was understood to be short term storage of spent fuel rods. They dissented from the majority, holding that a special permit was required for long term dry cask storage because it is a more substantial, new use. Exh. 2.

117. Construction of the pad began in August 2013. The construction of the pad had a number of layers of inspection by the Entergy Quality Assurance Department, the NRC, and representatives from the Town of Plymouth. The NRC inspected the pad both prior to and during the construction of the pad. The pad was completed around February 2014. Inspections of the pad revealed that it was constructed in accordance with the plans submitted to the DIS with the permit application, and the DIS issued a Certificate of Completion. The concrete pad is 52 feet by 238.5 feet, an area of more than 12,000 square feet. Exh. 1, PMF ¶¶ 55-56, 61, 74, 78, 180- 181; Tr. 5:64-65, 166-167; Tr. 6:33-34; Tr. 7:98-99; Exhs. 16, 57-61; View.

118. As of February 4, 2015, three Holtec casks had been placed on the pad. Entergy planned to load five more casks onto the pad in the fall of 2016, but there is no defined plan after that since it is dependent on a decommissioning plan yet to be created. Exh. 1, PMF ¶ 74; Tr. 5:118, 139; Tr. 7:87, 111; View.

119. All SNF generated by Pilgrim from 1972 to the present is now stored in the spent fuel pool inside the main reactor building, except for the SNF that was moved to the casks and placed on the concrete pad. Exh. 1, PMF ¶ 75.

120. From 1972 to the start of construction on the ISFSI in 2012, Pilgrim did not have a concrete pad, or any other facility or structure, for the storage of SNF outside the reactor building in dry casks. Exh. 1, PMF ¶ 130.

121. The most current version of the FSAR references dry fuel storage at Pilgrim. It states: "New fuel is stored in a dry storage vault located adjacent to the spent fuel pool area in the reactor building. Transport of spent fuel and irradiated channels during refueling is handled underwater. Spent fuel is stored underwater in the spent fuel pool in the reactor building and in dry storage casks at the Independent Spent Fuel Storage Installation until prepared for shipment from the site." Tr. 5:46; Tr. 7:89-90; Exh. 72.

122. Minott opined that the ISFSI project was part of the principal use of the plant. He stated that spent fuel has been part of the plant since the first discharge in 1973. Since that time, there has been continuous interim storage of SNF at Pilgrim. Minott also attested that the ISFSI project could be characterized as accessory to the plant since the ISFSI's purpose is the storage of spent fuel, and spent fuel is an element of the principal use of the plant. He partially based his opinion on other projects that Pilgrim had over the years that involved discussions over whether structures or uses were "customarily incidental." Tr. 5:74-79; Tr. 6:143.

123. Minott also testified that the use of ISFSIs at commercial nuclear power plants is customary in the industry. As of March 2013, in the United States there were 54 nuclear power plants with operating general licensed ISFSIs, nine plants pursing a general licensed ISFSI, and 15 specific licensed ISFSIs (at or away from reactor sites). The only other power plant in Massachusetts, Yankee Rowe, which is now decommissioned, also utilizes an ISFSI. Only five of the commercial nuclear plants in the United States have not announced intentions to adopt ISFSIs. Based on Minott's expertise and experience, I find his testimony credible. Exhs. 53, 65; Tr. 5:69-70; Tr. 6:152-153; Tr. 7:57.

124. Lynch also opined that the principal use of Pilgrim is the generation of power and that the ISFSI is part of that principal use since SNF is a natural byproduct of generating power and the ISFSI is one of the storage methods for the SNF. Tr. 7:100.

V. ANALYSIS OF THE BOARD'S DECISION

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the "court shall hear all the 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 . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision involves a "‘peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), quoting Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings"). After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court must, however, give deference to the local board's decision and may only overturn a decision if "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In determining whether the decision is "based on a legally untenable ground," MacGibbon, 356 Mass. at 639, the court first looks at whether it was decided by applying a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives "some measure of deference" to the local board's interpretation of its own zoning by-laws. Once the court determines the content and meaning of statutes and by-laws, it looks at whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application. Britton, 59 Mass. App. Ct. at 73. Finally, the court finds the facts and determines whether "any rational board could" come to the same conclusion. Id. at 74. This step is "highly deferential," but deference is not abdication. Id. "As a consequence, the board's discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law." Id. at 74-75. If the board's decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).

Under the Town of Plymouth's zoning procedures, zoning approval and building approval are two separate processes. To exercise an allowed use, an owner must secure a zoning permit certifying compliance with the zoning bylaw before obtaining a building permit to build a structure permissible under the bylaw. Pursuant to § 205-5, the grant or denial of a zoning permit can be appealed to the ZBA. Exh. 3. The permit that is the subject of this case is a zoning permit for the construction of a concrete pad on the Pilgrim property that was appealed to and affirmed by the ZBA in the Decision.

The Plaintiffs appeal the Decision upholding the DIS's granting of the Permit and denying their request for zoning enforcement. The DIS granted the Permit and the Board upheld it in the Decision on the grounds that, if not part of the principal use, the concrete pad is an accessory use to Pilgrim. The Plaintiffs argue that this rationale is in contradiction to the plain language of § 205-51 of the Bylaw, governing uses and structures in the LI district, which does not provide for accessory uses or structures as-of-right. The Plaintiffs also claim that the ISFSI project is not part of the principal use pursuant to the unambiguous language in the 1967 Special Permit. Entergy asserts that the Decision should be upheld because the ISFSI project is either part of the principal use, within the scope of the 1967 Special Permit, or an accessory use to Pilgrim's principal use of power generation. Entergy contends that if the ISFSI is an accessory use, the Bylaw does not prohibit accessory uses in the LI district, as the Plaintiffs maintain, because there is no restrictive clause generally prohibiting accessory uses not expressly permitted.

A. Accessory Use

"[Bylaws] may take the form of prescribing uses permitted or prescribing uses prohibited, or a combination of the two." Town of Harvard v. Maxant, 360 Mass. 432 , 436 (1971). While some zoning ordinances provide express permission for accessory uses, the common law provides for accessory uses when an ordinance is silent on the subject. Garabedian v. Westland, Nos. 960558A, 961386A, 961462B, 970388A, 2000 WL 1473131, *8 (Mass. Super. Ct. June 30, 2000), citing Town of Salem v. Durrett, 125 N.H. 29, 32 (1984). "Even though a given use of land is not explicitly allowed, it is nonetheless permissible if it may be said to be accessory to a use that is expressly permitted." Id.; Town of Harvard, 360 Mass. at 435. In this case, § 205-3 of the Bylaw explicitly defines "Accessory Use or Structure" as "[a] use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure." Exh. 3. Nowhere in the Bylaw does it specifically state that accessory uses may accompany the main use, nor is there any restrictive language that prohibits accessory uses not expressly permitted. Tr. 6:76-77; Exh. 3. Section 205-51 of the Bylaw, which regulates uses in the LI district where Pilgrim is located, does not identify any specific accessory uses that are either permitted or prohibited. Exh. 3. The Bylaw only calls out accessory uses in certain district regulations, such as § 205-40, where by special permit, uses that are customarily accessory, such as swimming pools or tennis courts, are allowed to exist on property as the principal use without a need for a primary structure. Tr. 6:78-80; Exh. 3. At trial, McAuliffe affirmed that the Bylaw is not restrictive and does not include a prohibition on accessory uses. McAuliffe testified that the Bylaw allows accessory uses and structures in every zoning district and he routinely allows accessory uses which are not expressly prohibited by the Bylaw. Tr. 6:26, 79-81, 91. It can be implied from the presence of the definition that accessory uses in all districts are permitted to the extent they comply with the term "accessory" in § 205-3 and the use is not otherwise prohibited in the particular district. See Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95 , 101 (1953) (accessory uses implicitly recognized where bylaw includes a definition of accessory).

Section 205-38 of Article V of the Bylaw, which sets forth regulations applying to each zoning district, states that "[i]f any proposed use is not specifically referred to in any of the subsections in the zone in question, the Building Inspector shall be responsible for determining whether the proposed use should be classified as an allowed use or a special permit use or a prohibited use, based on similarities of use or structures." Exh. 3. In the LI district, § 205- 51(C)(3) identifies "utility plants and substations" as a special permit use, but does not mention the storage of SNF. Section 205-51(E)(1-2) lists the uses prohibited in the LI district. The list does not include accessory uses, SNF storage, ISFSIs, or any other similar use. Exh. 3. Because the proposed use of the concrete pad was not referenced in the Bylaw, McAuliffe was charged with deciding whether the proposed use was allowed of right, allowed by special permit, or prohibited. In granting the Permit, McAuliffe found that the construction of the concrete pad to accommodate modular dry cask storage units is an accessory use and structure subordinate to the principal special permit use of power generation of Pilgrim, and, therefore, is allowed as of right without further zoning relief. Exhs. 11, 22. Whether McAuliffe reached the proper conclusion that the pad was accessory to Pilgrim requires further analysis.

"An incidental or accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use." Town of Needham, 330 Mass. at 101. Whether a use is "incidental" involves a determination as to: (1) whether the use is subordinate and minor in significance to the primary use, though it is not required to be smaller than the principal use, see Maselbas v. Zoning Bd. of Appeals of N. Attleborough, 45 Mass. App. Ct. 54 , 56-57 (1998), and (2) whether there is a reasonable relationship between the use in question and the primary use of the property. See Henry v. Board of Appeals of Dunstable, 418 Mass. 841 , 843-845 (1994); Town of Harvard, 360 Mass. at 438 (stating that it is not enough that accessory use be subordinate, "it must also be attendant or concomitant."); Building Inspector of Falmouth v. Gingrass, 338 Mass. 274 , 275 (1959); Parrish v. Board of Appeal of Sharon, 351 Mass. 561 , 567 (1967); Hume v. Building Inspector of Westford, 355 Mass. 179 , 182 (1969); Gallagher v. Board of Appeals of Acton, 44 Mass. App. Ct. 906 , 907 (1997); Albee Industries, Inc. v. Inspector of Bldgs. of Waltham, 10 Mass. App. Ct. 858 , 858 (1980); Town of Foxborough v. Bay State Harness Horse Racing & Breeding Ass'n, Inc., 5 Mass. App. Ct. 613 , 618 (1977); see also Bobrowski, Handbook of Massachusetts Land Use and Planning Law § 12.1 (1993); Juergensmeyer and Roberts, Land Use Planning and Development Regulation Law § 4.4 (2d ed. 2007).

The proposed accessory use is scrutinized to determine whether it has commonly, habitually, and by long practice been established as reasonably associated with the primary use. Id.; compare Henry, 418 Mass. at 846-847 (proposed gravel removal was not accessory to agricultural or horticultural use of operating Christmas tree farm), Gallagher, 44 Mass. App. Ct. at 907 (addition three times as big as existing house was not accessory use of the property), and Town of Foxborough, 5 Mass. App. Ct. at 616-617 (operation of flea market on race track parking lots was not an accessory use to parking lot and race track) with Miles-Matthiass v. Zoning Bd. of Appeals of Seekonk, 84 Mass. App. Ct. 778 , 784-785 (2014) (common driveway to access residential lots permissible accessory use to the main residential use), Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 9-10 (2003) (stabling of horses for personal, non-commercial use qualified as accessory to the residential use of the property), and Cunha v. City of New Bedford, 47 Mass. App. Ct. 407 , 410-411 (1999) (use of home law office by employed attorneys was permissible accessory use to residential use by attorney). This is a fact-dependent inquiry that is contingent upon the circumstances of each particular case. See Salah v. Board of Appeals of Canton, 2 Mass. App. Ct. 488 , 496 (1974) (stating that accessory/incidental use determination "is in general a question of fact which the board must determining initially"). The analysis of accessory and incidental uses may change with the passage of time and the progress of technology. See Pratt v. Building Inspector of Gloucester, 330 Mass. 344 , 346-347 (1953). "Interpreting accessory use provisions to require both that an incidental use be minor relative to the principal use and that the incidental use have a reasonable relationship to the primary one is essential to preserve the power and intent of local zoning authorities." Henry, 418 Mass. at 844.

The primary use of the Pilgrim property is the generation of electricity by nuclear energy. The question is whether the storage of SNF in the casks as part of the ISFSI project is a permitted accessory use to the principal power generation use. Both Pilgrim's zoning permit application and the testimony of Minott, the ISFSI project manager, describe the scope of the ISFSI project as involving the installation of a concrete pad 52 feet wide by 238.5 feet long by 3 feet deep. The pad is reinforced concrete, the sole purpose of which is to hold the dry Holtec casks. The pad can accommodate up to 40 dry casks. Exh. 11; Tr. 4:31-32, 123; View. Each dry cask is approximately 18 feet tall, 11 feet wide, and when fully loaded weighs 360,000 pounds. Exh. 1, PMF ¶ 178; View. I agree and find that the casks are not structures fixed to the ground, but rather equipment that can be moved. Tr. 5:23-25. Though the pad and casks are sizeable, their size relative to the substantial size of Pilgrim and the 517 acre site on which the plant is located is marginal. Exh. 1, PMF ¶ 94; Exhs. 16-20, 28-29; View. Additionally, the ISFSI project is an entirely passive system. It does not make any sounds, have lights, or emit any odors. The casks and pad do not use electricity, water, or have any mechanical parts that require maintenance. The only maintenance the casks require are inspections twice a day by the operations department to make sure that the vents remain clear for the proper flow of air. Monthly radiation measurements are also taken at a number of different levels on each cask to ensure that the radiological dose rates are remaining stable for the cask. Exh. 1, PMF ¶ 78; Tr. 5:32-33, 37-38, 139. Based on this information, the scope of the ISFSI project is clearly subsidiary to the scope of Pilgrim's operations.

The cost of the ISFSI project is also subordinate to costs associated with Pilgrim. The ISFSI project is not a profit-generating improvement to the property, but merely allows Pilgrim to continue operations at full core off-load capacity according to their corporate policy. The estimated cost of the construction of the concrete pad is approximately $700,000. Tr. 6:30. The estimated cost of furnishing and filling each of the dry casks is approximately $2 million. Tr. 5:141-143. While the cost of installing the maximum 40 dry casks on the pad would be approximately $80 million, this cost is a fraction of the cost of Pilgrim itself. In 2013, the assessed value of Lot 1B was approximately $611 million, making the cost of the ISFSI project only about 13% of that value. At Lot 1B's presently assessed value of approximately $568 million, the cost of the ISFSI project is still only about 14% of that value. Tr. 5:62.

Plaintiffs contend that because the transfer of the SNF into the dry casks and the casks onto the concrete pad is potentially a "decades-long project," its duration makes the ISFSI project not accessory. Minott testified that Entergy currently planned on transferring the spent fuel to the casks and installing five more casks onto the pad in the fall of 2016, but there is no defined plan after that since it is dependent on a decommissioning plan yet to be created. This means that the majority of the casks would be loaded onto the pad after Pilgrim's decommissioning, which is not at issue here. The ISFSI project does not extend the life of the plant or the length of time that spent fuel is required to remain at Pilgrim. Tr. 4:21, 32. While Pilgrim's operating life will not be extended beyond its 2019 decommissioning, the ISFSI project does not allow a longer storage of SNF than would be allowed without it. The duration of the storage of SNF on-site is within the sole control of the federal government. Tr. 4:32. Pilgrim's SNF must be stored on-site with or without the ISFSI project, until there is a national repository to which it can be shipped. The ISFSI does not extend the duration of spent fuel storage at the plant. Only the location of where the waste is to be stored will change.

Moreover, testimony from Minott, Lynch, and McAuliffe established that the storage of SNF in the casks bears a "reasonable relation" to the principal use. The ISFSI project is entirely necessitated by Pilgrim's power generation. SNF is the byproduct of Pilgrim's principal use, and must be stored on the property. This byproduct has been a part of the plant since the first time spent fuel was discharged in 1973, and interim storage of that spent fuel stored has occurred at Pilgrim continuously since that time. Tr. 5:74. The amount of spent fuel stored at Pilgrim is a function of the generation of spent fuel as a result of reactor operations in the core, not the manner or place in which the fuel is stored. Tr. 4:31; Tr. 5:38. The SNF to be stored in the dry casks and placed on the concrete pad is only that generated by Pilgrim's own operations. SNF from other locations cannot be accepted at Pilgrim. Tr. 5:33. Minott's and Lynch's testimony, which I credit, is that the use of ISFSIs at commercial nuclear power plants is customary in the industry. ISFSIs are the primary means of storage of SNF at plants in the United States. As of March 2013, in the United States there were 54 nuclear power plants with operating general licensed ISFSIs, nine plants pursing a general licensed ISFSI, and 15 specific licensed ISFSIs (at or away from reactor sites). The only other power plant in Massachusetts, Yankee Rowe, which is now decommissioned, also utilizes an ISFSI. Indeed, only five of the commercial nuclear plants in the United States have not adopted the use of ISFSIs. Exhs. 53, 65; Tr. 5:69-70; Tr. 6:152-153; Tr. 7:88-89, 100.

Plaintiffs also claim that the permit applications for aspects of the ISFSI project were improperly segmented in an effort to evade zoning and avoid a comprehensive review of the facility as a whole. The cases relied on by the Plaintiffs involve situations outside the zoning context, such as subdivision review and MEPA review, where the permit applicant used "unorthodox devices" to intentionally avoid review. See Ten Persons of the Commonwealth v. Fellsway Dev., LLC, 460 Mass. 366 , 383 (2011) ("We are of the view that the plaintiffs have pleaded facts sufficient to support a claim that the DCR and the developers delayed specific roadway alterations, which might otherwise require a permit, in order to ‘phase or segment a Project to evade, defer, or curtail MEPA review.'"); Bellingham Residential #2 Realty, LLC v. Laprade, 17 LCR 87 , 88, 90-91 (2009) (affirming Board's disapproval of a subdivision plan as impermissibly segmenting the project by attempting to remove from purview an additional lot). I do not find these cases analogous to the present action.

The ISFSI project was not segmented. Pilgrim obtained zoning permits for the only portions of the project that were considered structures, the concrete pad and the soldier pile wall. McAuliffe testified that prior to Entergy filing its zoning permit application for the concrete pad he attended a site visit at Pilgrim in November 2012, where the overall project was explained to him. At the site visit, McAuliffe advised Entergy concerning which permits to seek for different aspects of the ISFSI project. Entergy submitted permit applications for the concrete pad and soldier pile wall with all the requested plans and documents, eventually obtaining the necessary permits. Prior to issuing the Permit, McAuliffe contacted Hartmann, director of planning and development in Plymouth, to inquire whether site plan review would be required. After consulting with the chairman of the Planning Board and reviewing Entergy's permit application, Hartmann sent an email to McAuliffe concluding that no site plan review by the Planning Board would be needed. Tr. 6:14-16, 26-28, 97-99, 101-102, 108; Exh. 64. McAuliffe's testimony that in his opinion there was no segmentation in this case, which I credit, corroborates the evidence. The DIS and director of planning were both sufficiently informed as to the scope of the project to make a decision as to whether the ISFSI project required only the zoning permit or whether it called for a more comprehensive review. Though Plaintiffs assert that the ISFSI project is large, expensive, and complex, which necessarily required comprehensive review, I nonetheless find it to be accessory in comparison to the overall size, expense, and complexity of Pilgrim, even when considering other components besides the pad and casks to be within the scope of the ISFSI project.

Further, the Plaintiffs argue that when Pilgrim ceases power generation in 2019, there will no longer be a principal use to which the ISFSI project is subordinate, thus making the storage of SNF the principal use of the Pilgrim property. The status of Pilgrim after decommissioning and the zoning implications of the decommissioning, however, is not before me in this case. The plant is currently operational and continues to generate power with SNF as a byproduct. The storage of that byproduct is subordinate to the principal use. Once Pilgrim is decommissioned, it is up to the Town of Plymouth in the first instance to decide whether the principal use of the property has changed and whether the ISFSI project remains accessory to Pilgrim. The Plaintiffs retain the right to challenge the existing Permit, or Entergy may seek a new special permit for the spent fuel storage, which the Plaintiffs may also challenge. As it presently stands, though, I find that Entergy has demonstrated that the storage of SNF through the use of the ISFSI is both subordinate and reasonably related to the primary use of the Pilgrim property. Accordingly, I find that the ISFSI project is accessory to Pilgrim and, thus, the Board's Decision to affirm McAuliffe's issuance of the Permit and denial of the zoning enforcement request had a substantial basis in fact.

B. 1967 Special Permit

Though the DIS issued the Permit, which the Board upheld, based on the premise that the ISFSI project was accessory to Pilgrim's principal use, Entergy argues that the Permit was not necessary because the ISFSI is part of the principal use and within the scope of the 1967 Special Permit. The Plaintiffs argue that Entergy's contention is flawed for three reasons: 1) the unambiguous language of the 1967 Special Permit does not mention long-term nuclear waste storage at Pilgrim; 2) Entergy's interpretation runs afoul of long-standing case law prohibiting the Board from delegating decisions on issues of substance to third parties like the NRC; and 3) even if the language of the 1967 Special Permit is ambiguous, extrinsic evidence supports a finding that the only SNF storage contemplated was within the reactor building in the spent fuel pool.

On July 26 1967, Boston Edison applied for a special permit for the construction of Pilgrim since, pursuant to the 1962 Bylaw, the land upon which Pilgrim was proposed to be built was zoned as a Residential R20 district, where a nuclear power station was not an allowed use as of right. The 1967 Special Permit application states in relevant part:

Boston Edison Company, a public utility corporation, herewith applies . . . for a special permit to construct a nuclear power station and associated transmission facilities on property owned by it on both sides of Rocky Hill Road, in accordance with its License Application dated June 23, 1967, to the [AEC], and the [DAR] referred to therein . . . with such modifications as may be approved by the [AEC].

The project will not include a repair station or outside storage of supplies. In the opinion of the applicant the use involved will not be detrimental to the established or future character of the neighborhood and Town, and the conditions and safeguards imposed by the [AEC] will be appropriate and sufficient.

Exh. 8.

On August 22, 1967, the Board issued the 1967 Special Permit to Boston Edison for the construction of Pilgrim. The language of the 1967 Special Permit explicitly states that it is for the construction "of a structure for a public utility corporation, namely a nuclear-powered generating plant and associated buildings, roads and transmission facilities . . . in an R-20 zone." Exh. 1, PMF ¶ 108. In reaching its decision, the Board found that Pilgrim would "not be detrimental to the established or future character of the neighborhood and the town in view of the conditions and safeguards which will be imposed by the United States Atomic Energy Commission upon the operation of any such nuclear power plant, and the comparative isolation of the site and the plant itself." Exh. 1, PMF ¶ 95; Exh. 5.

While the Plaintiffs are correct that neither the application nor the 1967 Special Permit specifically references long-term storage of SNF, the application plainly refers to the license application and the DAR, and anticipates future changes to the plant that are subject to approval by the AEC (the now NRC). Exhs. 8-9. The application also states that both the license application and the DAR were on file with the Board of Selectmen of the Town of Plymouth. The license application and the DAR were before the Board when the 1967 Special Permit was granted. The DAR does not reference dry cask fuel storage, but does discuss the on-site storage of spent fuel and the handling and the use of shipping casks for off-site storage. There is a designated "Shipping Cask Area" within the spent fuel pool noted in the DAR, as well as a section of the report devoted to "Spent Fuel Storage and Handling," which discusses the loading of the SNF into the shipping casks. The DAR states that when SNF is removed from the reactor, the fuel is first stored in the spent fuel pool to cool, and thereafter, transferred to casks for further disposition off-site. Exh. 71. Thus, the Board was aware that the storage of spent fuel at Pilgrim was part of the project when it issued the 1967 Special Permit and that Boston Edison anticipated equipment required for such storage, both inside and outside the reactor building.

Plaintiffs claim that because the DAR did not specifically describe dry cask storage outside the reactor building, such storage is not permitted under the 1967 Special Permit. This argument overlooks testimony by Minott and Lynch that the DAR is a living document that changes along with changes to Pilgrim and regulations that affect the facility. Since 1967, it has evolved into the PSAR, and after the Operating License was issued in 1972, evolved into the FSAR. Since 1972, the FSAR has been updated every two years to reflect the changes that the plant experienced during that two-year cycle. Tr. 5:44-45; Tr. 6:127-128; Tr. 7:73-75, 81, 115-116. The most current version of the FSAR references dry fuel storage at Pilgrim. It states in relevant part:

New fuel is stored in a dry storage vault located adjacent to the spent fuel pool area in the reactor building. Transport of spent fuel and irradiated channels during refueling is handled underwater. Spent fuel is stored underwater in the spent fuel pool in the reactor building and in dry storage casks at the Independent Spent Fuel Storage Installation until prepared for shipment from the site.

Tr. 5:46; Tr. 7:89-90; Exh. 72. Moreover, the 1967 Special Permit anticipated and authorized modifications to the Operating License and DAR subject to ongoing AEC approval, as noted in Boston Edison's application and in stating that the plant would be subject to AEC regulation. Both Minott and Lynch provided credible, unrebutted testimony about how conditions set forth in the license, DAR, and NRC regulations have been continually updated since the 1967 Special Permit was issued in order to accommodate advancements in technology. Tr. 5:43-45; Tr. 7:81- 82; Exh. 72. When the 1967 Special Permit was applied for and granted, ISFSI technology did not exist. The first ISFSI was not licensed in the United States until 1986. Tr. 7:88. Beginning in the 1990s, NRC regulations established that every licensed commercial nuclear power reactor was also licensed to store spent fuel in an ISFSI at the reactor site. Tr. 7:92; 10 CFR § 72.210. The use of ISFSI has now become widespread and customary in the nuclear industry. Exhs. 53, 65; Tr. 5:69-70; Tr. 6:152-153; Tr. 7:57. Pilgrim's ISFSI project utilizes the Holtec dry cask that is certified by the NRC regulations, complies with its Operating License, and is reflected in the most recent version of the FSAR. Exh. 72; Tr. 5:46. In light of these technological advances which were not in existence at the time the 1967 Special Permit was issued, it would be unreasonable to expect the DAR to enumerate every possible change made to the facility over the next several decades.

Contrary to the Plaintiffs' argument, the Board did not delegate its authority to the AEC/NRC in granting the 1967 Special Permit. A permit granting authority "may not delegate to another board, or reserve to itself for future decision, the determination of an issue of substance, i.e., one central to the matter before the permit granting authority." Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624 (1986). In other words, a board cannot impose conditions central to the board's decision in granting a special permit that require approval by other municipal bodies or boards. See Weld v. Board of Appeals of Gloucester, 345 Mass. 376 , 378-379 (1963); Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762 , 766 (1996); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981). In this case, the 1967 Special Permit is very broad. It does not impose any limiting conditions except that the facility must operate as a nuclear-powered generating plant. In fact, the Board only references the conditions imposed by the AEC in regards to the Board's assessment that Pilgrim would "not be detrimental to the established or future character of the neighborhood and the town." Exh. 5. The Board was entitled to conclude that the use would not be detrimental to the character of the neighborhood in reliance on the AEC regulations without it being a delegation of its authority.

In issuing the 1967 Special Permit, the Board allowed changes to Pilgrim's operations through subsequent, updated versions of the Operating License and FSAR, so long as the use or structure remained within the scope of the permit and continued to operate consistent with AEC regulations. As previously noted, the storage of SNF comes within the scope of nuclear power generation. Nowhere in th 1967 Special Permit did the Board restrict the method of storage of SNF at Pilgrim to purely inside the reactor building. Testimony from Minott and Lynch indicated that in their day-to-day use of the 1967 Special Permit they did not interpret it as specifying or limiting the method or placement of SNF storage at Pilgrim. Tr. 7:80-81. The ISFSI project is located on the same parcel as Pilgrim and the use of the Holtec cask is endorsed by the NRC. The Board's reasonable interpretation in the Decision, that the ISFSI project was part of the principal use pursuant to the 1967 Special Permit, is owed deference. Certainly, there is a point at which the Board can make the decision that the use or structure proposed has gone beyond the scope of the 1967 Special Permit. Upon the decommissioning of Pilgrim, there may be occasion for the Board to reconsider whether Pilgrim is still operating as a power generating facility, but that is a question in the first instance for the municipality. At this point in time, the Board did not abuse its discretion by determining that the ISFSI project could be deemed part of the existing principal use of power generation.

CONCLUSION

For the foregoing reasons, judgment shall enter in favor of Entergy, affirming the Decision and dismissing the Plaintiffs' complaint with prejudice.

Judgment accordingly.