The Plaintiffs in this case appeal under G.L. c. 40A, ยง 17 from a September 12, 2013 decision of the Defendant Winchester Board of Appeals (the "ZBA") granting site plan approval to Defendants G.B. New England 2, LLC and Gershman Brown Crowley, Inc. (now known as T.M. Crowley & Associates, Inc.) for the redevelopment of land in the General Business District 1 ("GBD-1") for a CVS pharmacy store. The Plaintiffs, who own and/or reside in residentially- zoned properties either directly abutting the project site, or directly across the street from the project site, claim that the ZBA exceeded its authority when it approved the site plan because, as designed, the development project does not conform to the applicable requirements of the Winchester Zoning Bylaw (the "Bylaw") relative to minimum yards, minimum parking ratios, minimum parking space size, and minimum landscaping. They claim to be aggrieved by the site plan approval decision because, inasmuch as the approved development project is larger than it would be if in full compliance with the Bylaw, it will result in proportionately more traffic, noise, snow melt runoff, and headlight glare impacts on their residences.
A de novo trial was held on May 5 and 6, 2015. Five witnesses testified for Plaintiffs: Plaintiff Joseph Scotti; Plaintiff Anyah Lee Suderman; Plaintiff Chi Wing Lee; Plaintiff Feng Dong; and Sean Reardon P.E., of Tetra Tech. Sean Reardon was qualified and admitted as an expert. Five witnesses testified for Defendants: John Wile, the Winchester Building Commissioner and Zoning Enforcement Officer; Kevin Paton of BKA Architects, Inc., the architect for the Project; Brian J. Dundon P.E., of R.J. O'Connell & Associates, Inc., the Project Site civil engineer; Giles Ham, Principal of R.D. Vanasse & Associates, Inc., who conducted a traffic impact and access study for the Project; and Mark C. Wallace, a Sound Engineer with Tech Environmental, who conducted a sound study for the Project. All of Defendants' witnesses were qualified and admitted as experts.
The parties stipulated to thirty-seven agreed facts, and a total of fifteen agreed trial exhibits were admitted into evidence. Following receipt of the trial transcripts and the Parties' respective proposed findings of fact and rulings of law, the court heard closing arguments on November 18, 2015.
In a trial Decision issued July 13, 2017, this court found and ruled that the subject site plan approval decision was legally untenable and exceeded the ZBA's authority. On the basis of that Decision, it is:
ORDERED, ADJUDGED and DECLARED that the September 12, 2013, decision of the Winchester Board of Appeals granting site plan approval to Defendants G.B. New England 2, LLC and Gershman Brown Crowley, Inc. (now known as T.M. Crowley & Associates, Inc.) for the redevelopment of land in the General Business District for a CVS pharmacy store exceeded the ZBA's authority as it is based on legally untenable findings and accordingly it must be and hereby is ANNULLED.
SO ORDERED.
CHI WING LEE, FENG DONG, ANYAH LEE SUDERMAN, and JOSEPH SCOTTI v. RICHARD SAMPSON, JR., DONNA PATALANO, LAWRENCE BEALS, JON GYORY, JOAN LANGSOM and NIGEL HAIG GALLAGHER, as they are members of the WINCHESTER BOARD OF APPEALS and GERSHMAN BROWN CROWLEY, INC. and G.B. NEW ENGLAND 2, LLC.