M&K PARTNERS LLC v. JOSEPH SCARDINO, WILLIAM ANGELOS, LYNN JARDIN, JAMES BARRON and MICHAEL SAMMARCO as members of the Stoughton Planning Board, ARIE VAN DAM, DGC HIGHWAY LLC, and MARIE VAN DAM as trustee of the 357 Page Street Realty Trust.

Introduction

These two G.L. c. 40A, § 17 appeals, [Note 1] in different contexts, [Note 2] each challenge the approval of a site plan for the defendant Van Dams' proposed development at 357 Page Street in Stoughton, which sits on the incline of a hill above plaintiff M&K Partners LLC's abutting property. Under the approved site plan, a contractor's storage facility and parking lot are to be constructed on a plateau on the highest part of the Van Dams' property. The remaining, lower part of their property, which abuts M&K's land, is to be seeded and, thereafter, left undisturbed. The site plan also includes a stormwater management system to control runoff from the site and, by board order, strict conditions on the use and maintenance of the lower part of the property.

There are two decisions at issue — one by the Planning Board, and the other by the Zoning Board of Appeals. Both are based on the approved site plan and the conditions imposed on its approval. In the first case, 14 MISC. 481559 (KCL), M&K claims that the Planning Board's decision granting site plan approval is arbitrary and capricious because, according to M&K, it was based on a defective site plan that does not depict all existing and proposed uses of the property. [Note 3] In the second case, 14 MISC. 485380 (KCL), M&K claims that the ZBA's decision denying M&K's appeal of the issuance of a foundation building permit for the Van Dam's proposed storage facility is arbitrary and capricious because the ZBA's decision was based in part on the Planning Board's allegedly erroneous site plan approval and the same, allegedly defective submission. [Note 4] The Van Dams and the Boards disagree with M&K's contentions.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the site plan was not defective. Insofar as relevant, it sufficiently described all present and proposed uses of the property. [Note 5] More importantly, M&K's appeals fail because it lacks standing to make them. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996) (noting that standing is a "jurisdictional question"). As in all G.L. c. 40A, § 17 appeals, it is the plaintiff's burden to show that it is "aggrieved" by the decisions. M&K's sole aggrievement is its contention that the Van Dams' proposed project will cause stormwater to flow onto its property and materially affect it, even though (1) the approved site plan contains a comprehensive stormwater management system to control runoff, and (2) the lower part of the property, which the Boards ordered could not be used unless and until a further site plan is reviewed and approved, will be seeded and loamed with appropriate silt barriers. In these circumstances, expert testimony is required to prove stormwater impact. M&K did not present any expert evidence at trial to substantiate that allegation. M&K's claims are thus DISMISSED in both cases in their entirety, with prejudice.

Facts

These are the facts as I find them after trial.

Relevant Provisions of Stoughton's Zoning By-law

Under Stoughton's Zoning By-law, the "open storage of raw materials, finished goods, or construction equipment and structures for storing such equipment" is a use permitted as of right in the Industrial zoning district in which the Van Dams' property is located. [Note 6] See Zoning By-law, § V (Table of Use Regulations). However, site plan approval by the planning board is required to construct, remove and reconstruct, demolish and reconstruct, or make certain enlargements to a building, except for single- or two-family residences and their accessory structures. See Zoning By-law (Article XIV Site Plan Review), § 200-83. The requirements for such approval are set forth in the zoning by-law. See generally Zoning By-law (Article XIV Site Plan Review), §§ 200-84, 200- 85 & 200-86. Of relevance here, a site plan must, among other things, contain "detailed locations and dimensions of all existing and proposed buildings and uses on site and on abutting properties. . . ." Zoning By-law (Article XIV Site Plan Review), § 200-85(A)(10). Additionally, to obtain site plan approval, "[a]dequate on-site drainage shall be provided to handle peak stormwater runoff[,] and stormwater runoff shall not adversely affect abutting properties or the Town drainage system." [Note 7] Zoning By-law (Article XIV Site Plan Review), § 200-86(K).

M&K's Property

M&K owns the property at 301 Page Street in Stoughton, which sits downhill from the Van Dams' abutting parcel at 357 Page Street. When M&K purchased its property in October 2003, it was undeveloped and covered in trees. Most of the 357 Page Street property — a former concrete batching plant, since demolished — was overgrown with brush at that time. In 2003 and 2004, M&K developed its land, which now contains a warehouse, a parking lot, and a stormwater interceptor drain system in and around the parking lot that feeds into a detention pond. M&K currently rents the property to Boston Interiors, which uses it as a retail furniture showroom, corporate office, and distribution center.

When M&K's property was under construction in 2003/2004, delivery and construction vehicles drove across the 357 Page Street lot to access the M&K site [Note 8] and, in doing so, trampled some of the brush on the 357 Page Street land. Some of that brush subsequently grew back, but was removed again in 2012 after the Van Dams purchased the property and began using it.

One of M&K's owners, Michael Loring, testified that he had observed water flowing downhill from the Van Dams' property, both in its brush covered and cleared condition, onto M&K's land up to four times a year after a day or two of heavy rain. In particular, in 2004, when the M&K property was under construction and some of the brush had been removed from the Van Dam site due to truck use, he observed water with sediment in it flowing from that site onto M&K's parking lot, through M&K's grass, and into its interceptor drain and detention pond after a day or two of heavy rain. He also observed such water flow after the brush was removed again in 2012. Importantly, however, there were no stormwater management systems in place on the Van Dam property at those times, [Note 9] and, obviously, none of the systems that will be built as required by the approved site plan at issue in this case.

Another owner of M&K, Kenneth Loring, testified that during the construction at M&K's property in 2003/2004, he observed water and mud run downhill into M&K's parking lot. After 2012, on one occasion after a heavy rainfall, he observed what he described as approximately ankle-deep water run from the Van Dams property across M&K's lawn and into its parking lot. [Note 10] Again, it is important to note that these observations came at times when there was no stormwater management system on the Van Dam property. And even in this completely unmanaged state, Mr. Loring conceded that the water did not disturb M&K's property in any way.

The Van Dams' Property

Marie Van Dam, as Trustee of the 357 Page Street Realty Trust, owns the property at 357 Page Street, which is uphill from M&K's land. Ms. Van Dam, her husband Arie Van Dam, and their daughter Christine are the beneficiaries of that trust. The trust leases 357 Page Street to the Van Dams' contracting business, DGC Highway LLC, which uses the property as a contactor's yard. [Note 11] Ms. Van Dam and Christine Van Dam own the contracting business, and Mr. Van Dam is its general manager.

As noted above, the Van Dams' property sits uphill from M&K's abutting land to its rear. The part of the Van Dams' property that is furthest uphill is a plateau that extends along the lot's boundary with Page Street. The property slopes downhill from that plateau towards its rear, transitioning into a relatively level area as it approaches M&K's land. There is presently a swale that serves as a retention area, as well as a haybale line, at the rear boundary with M&K's land. The upper and lower parts of the Van Dam property are connected by two access routes, one on the northwesterly side of the property and the other on the southeasterly side. In all, the Van Dams' property is 80,292 square feet in area. [Note 12]

The Van Dams purchased the property in July 2012 from Boston Sand & Gravel Company, which had used it as a contractor's yard before selling it. The property had been used as a concrete batching plant before it was acquired by Boston Sand & Gravel Company, which had the plant demolished. When the Van Dams bought the property, it was unimproved except for remnants of the concrete plant foundation, and it was covered in major part by brush, weeds, and small trees.

In August 2012, Mr. Van Dam cleared most of the overgrowth from the upper and lower parts of the property, covering it in gravel so that the Van Dams could use the lot for their business. The Van Dams proceeded to park trailers and other vehicles toward the back of their property, near the swale by M&K's land. The conservation commission subsequently issued a cease and desist order temporarily prohibiting the use of certain portions of the Van Dam's property near the swale. That order was ultimately lifted, and the Van Dams resumed their use of the area.

The Van Dams currently use both the upper and lower portions of their property for their contracting business. They use the upper plateau to perform vehicle repair work, and the lower area near M&K's property to store, process, and deliver materials such as stones, debris, and heavy equipment. [Note 13] They also use both areas to park construction equipment and vehicles. Generally speaking, they park storage trailers, tractors, a front-end loader, and a roller on the plateau, and low bed trailers, flat bed trailers, dump trailers, storage trailers, an excavator, a street sweeper, and a generator on the lower area. Materials are moved on and off the property regularly and remain there for various periods of time, ranging from less than a day to several months.

The Van Dams desire to build a repair shop for their business on the upper plateau. They also plan to lease part of the proposed building to a cabinet maker. They intend to continue to use the remainder of their property, including the lower area, as part of their contractor's yard, in exactly the same manner as they are using it now. As previously discussed, and discussed again below, however, this continued use of the lower area will require a separate, additional site plan approval if the development on the upper area approved by this site plan approval takes place.

The March 2013 Application for Site Plan Approval

Under the zoning by-law, because demolition and new construction will take place, site plan approval from the Planning Board is required for the proposed new building. See Zoning By-law (Article XIV Site Plan Review), § 200-83. In March 2013, the Van Dams thus submitted an Application for Site Plan Approval to the Planning Board that proposed the construction of "a 9,600 square foot steel framed building and associated parking, grading and utilities." The Planning Board denied that application on July 3, 2013. [Note 14] That decision is not at issue in this case, but, as more fully discussed below, the materials submitted to the Board in support of the March 2013 application — particularly, a site plan prepared by the Thompson Farland engineering firm — are relevant to this matter. During the course of the Planning Board's meetings regarding that application, the Thompson Farland plans were revised and presented to the Board in their final revised form. [Note 15]

The Thompson Farland Plans

The Thompson Farland plans describe the proposed use of the site as a "vehicle maintenance and storage facility" with a principal use of "storage establishment." The plans depict a 120' x 80' steel framed building and an adjacent paved parking area with ten parking spaces and a 10' x 10' enclosed dumpster area on the plateau near Page Street. The other side of the building and the front yard along Page Street will be grassed and landscaped with trees and shrubs. The plans do not depict any existing parking area on the lower, rear portion of the property, nor do they depict any proposed development to the property's rear. [Note 16]

The Thompson Farland plans also include a stormwater management system to control runoff from the proposed project, to recharge stormwater, and to improve water quality. [Note 17] The stormwater management system was designed to satisfy the town's by-law requirements. The proposed building has a roof drain and downspout connection that will control runoff from the roof and direct it towards a subsurface recharge system located behind the proposed building on the plateau. There will also be a catch basin in the parking lot to collect runoff and direct it to the subsurface recharge system. Before stormwater will be introduced into the infiltration system, it will be treated in a stormwater pretreatment unit. There will also be an oil/water separator on the plateau. As shown on those plans, there will be a silt trap swale section and a stone swale with check dams downhill from the plateau to provide an outlet in the event stormwater overflows from the subsurface recharge system during high storm events and to minimize the possibility of erosion. None of this exists at the present time.

The November 2013 Application for Site Plan Approval

After the denial of the March 2013 application, the Van Dams submitted another Application for Site Plan Approval in November 2013, again seeking to construct a 9,600 square foot steel framed building and associated parking, grading and utilities, with a proposed use of "warehouse/storage." [Note 18] The stated current use of the property was as a "storage yard," and that is, in fact, the use. The Planning Board's January 23, 2014 decision approving that application is one of the two decisions at issue in this matter.

In support of the November 2013 application, the Van Dams submitted a "Limits of Work Plan" that was prepared by Coneco Engineers, Scientists & Surveyors (the "Coneco plan"), which, as discussed more fully below, is based upon and slightly modifies the Thompson Farland plans. M&K contends that the Planning Board did not consider the Thompson Farland plans in connection with the November 2013 application (and thus, M&K argues, the stormwater management system depicted in those plans was not before the planning board), but the facts are otherwise. I find that the Planning Board considered the Thompson Farland plans with respect to the November 2013 application, and I find that the Planning Board took into account the stormwater management system included within those plans. [Note 19]

The Coneco Plan

The Coneco plan modifies the limit of work and haybale line for the proposed project, but incorporates all of the other elements of the Thompson Farland plans, including the above-described stormwater management system. [Note 20] The Coneco plan provides that the "existing conditions and all design related information" were taken from the Thompson Farland plans. It also "refer[s] to plan set by Thompson Farland for all proposed site layout features, utilities, and drainage design" and provides that it "depicts revised grading only."

On the Coneco plan, the slope that extends towards the property's rear is steeper than the slope on the Thompson Farland plans. The grading thus does not extend as close to the property's rear boundary, and the disturbance to the site is reduced. The Coneco plan further modifies the Thompson Farland plans by depicting a hay bale line behind the proposed building near the plateau's edge, located just before the incline that is intended to delineate the limit of work, to serve as an erosion and sedimentation control barrier to control runoff during construction. [Note 21] All other aspects of the Thompson Farland plans, including the stormwater management system, remain the same.

The Planning Board's Decision

By decision dated January 23, 2014, the planning board approved the Van Dam's November 2013 application for site plan approval. In that decision, the planning board found that "the required information for determination of Site Plan Approval" was submitted, and that "the proposed use will not be detrimental to this industrial district." The planning board's approval was "expressly conditioned upon satisfaction" of a number of general and special conditions, a number of which restrict use of the property and a number of which relate to drainage. [Note 22] One such condition prohibits all use of the area beyond the limit of work (the haybale line towards the plateau's rear) — i.e., the entire lower portion of the property that is currently used as a parking and storage area. [Note 23] Another provides that any existing disturbance to that area must be stabilized with loam, seed, or other vegetative measures. [Note 24]

The ZBA's Decision

After the Planning Board approved the Van Dam's site plan, on March 19, 2014, a foundation building permit was issued for the Van Dam's property with a stated proposed use of "new industrial metal warehouse/storage building." As previously noted, the "open storage of raw materials, finished goods, or construction equipment and structures for storing such equipment" is a use permitted as of right in the Industrial zoning district. See Zoning By-law, § V (Table of Use Regulations). M&K appealed the issuance of the permit to the ZBA, which denied the appeal in a decision dated July 17, 2014. [Note 25]

M&K's Appeals of the Planning Board and the ZBA Decisions

M&K subsequently appealed both the Planning Board's January 23, 2014 decision and the ZBA's July 17, 2014 decision to this court. In each appeal, M&K contends that the existing uses and conditions of the Van Dams' property and their proposed uses were misrepresented or not disclosed in the site plan or elsewhere in the application for site plan approval, and further contends that its property will be harmed by stormwater flow caused by the Van Dams' proposed project. [Note 26] The Van Dams disagree, and further contest M&K's standing to appeal the decisions. M&K maintains that it has standing because of the drainage impacts it alleges will result from the project.

Further relevant facts are set forth in the Analysis section below.

Analysis

M&K has made no admissible, credible showing that it will be harmed, or impacted at all, by the Van Dams' project. M&K thus does not have standing to contest the planning board and ZBA decisions. Accordingly, both appeals are dismissed.

As previously noted, only a "person aggrieved" has standing to challenge a municipal board's decision. [Note 27] G.L. c. 40A, § 17. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian, 421 Mass. at 721. To be "aggrieved" within meaning of § 17, one must suffer an infringement of a "specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006). See Marashlian, 421 Mass. at 721. "Aggrievement requires a showing of more than minimal or slightly appreciable harm." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). "The injury must be more than speculative," Marashlian, 421 Mass. at 721, and must be "special and different from the injury the action will cause the community at large." Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). "The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Kenner, 459 Mass. at 122.

Direct abutters, such as M&K, are entitled to a rebuttable presumption that they are "persons aggrieved." 81 Spooner Rd., LLC, 461 Mass. at 700. To rebut M&K's presumed aggrievement, the Van Dams are required to offer evidence that warrants "a finding contrary to the presumed fact" of aggrievement. Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). If the Van Dams successfully rebut the presumption, the court must decide the issue of standing "on the basis of all the evidence." 81 Spooner Rd., LLC, 461 Mass. at 701. M&K then "must prove standing by putting forth credible evidence to substantiate the allegations." Id. at 701.

"Credible evidence" has both quantitative and qualitative components. See Butler, 63 Mass. App. Ct. at 441.

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

Id. (internal citations omitted). See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 575 (2016).

M&K contends that it is "aggrieved" by the planning board and ZBA decisions because, it believes, the proposed project on the Van Dams' property will increase the flow of stormwater onto M&K's property. More than that "belief," however, is required to show aggrievement. The zoning by-law affords protections against deleterious effects of stormwater runoff, see Zoning By-law (Article XIV Site Plan Review), § 200-86(K), but that in itself is not enough to establish that M&K has standing. M&K has the burden to show that its protected interest will be harmed in a way that is special or different from any harm to the general community. See 81 Spooner Rd., LLC, 461 Mass. at 701 ("The plaintiff always bears the burden of proving aggrievement necessary to confer standing; an abutter's presumption of standing simply places on the adverse party the initial burden of going forward with evidence."); Butler, 63 Mass. App. Ct. at 440.

As an abutter to the Van Dams' property, M&K enjoys a presumption of standing. 81 Spooner Rd., LLC, 461 Mass. at 700. The Van Dams have, however, rebutted that presumption by presenting evidence that the proposed project includes mechanisms to control peak stormwater runoff and to prevent runoff from adversely affecting the area. [Note 28] Specifically, the approved site plan includes a stormwater management system to control runoff from the portion of the site that will be developed. Runoff from the building's roof will be controlled by a roof drain and downspout connection, and runoff from the parking lot will be collected in a catch basin. All of it will then be collected and treated by a stormwater pretreatment unit and then proceed through a subsurface recharge system located on the plateau, keeping it "on site." On the downhill portion of the property, there will be stone swale with check dams and a silt trap swale section to mitigate potential erosion and to address potential stormwater overflow in the event of heavy storms. The haybale line delineating the limit of work near the plateau's rear will further control runoff from the site during construction.

M&K thus has the burden, "with no benefit . . . from the presumption of aggrievement," to substantiate its allegations with admissible "credible evidence." Id. at 701. M&K has failed to satisfy that burden because the evidence is both quantitatively and qualitatively insufficient to show that M&K will be harmed by runoff from the proposed project. Indeed, there is no evidence that the proposed project, with the stormwater management system in place, will cause runoff to go onto M&K's property at all, let alone cause M&K any harm.

M&K's alleged drainage impacts are the type of matter outside the scope of common knowledge for which expert testimony is required. See Standerwick, 447 Mass. at 36; Geraci v. City of Waltham, 21 LCR 607 , 611 (2013) (finding downhill abutter had no standing based on alleged increased runoff in absence of expert evidence). The reason why such expert testimony is needed is self-evident. The relevant question is not what is happening before mitigation. It is what happens after, and a lay person is not competent to evaluate the effects of such a system, with many interrelated parts, not yet in place. At trial, M&K presented no expert testimony in support of its allegations. [Note 29] Moreover, even assuming M&K could substantiate its allegations in the absence of expert testimony, it failed to do so with sufficient credible evidence.

M&K's owners, Michael Loring and Kenneth Loring, testified regarding the few occasions on which they have observed stormwater flow from the Van Dams' property onto M&K's land. Michael Loring testified that he has seen water flow from the Van Dams' property onto the M&K lot, but admits that this has happened only a few times a year, and only after at least of a day of heavy rain. He has observed that the flow is generally heavier when there is less vegetation on the property.

Kenneth Loring testified that when M&K's property was under construction, he observed water and mud flow from the Van Dam's property into M&K's parking lot. At that time, some of the overgrowth on the Van Dams' property had been affected by the construction vehicles working on the M&K project. On one occasion after 2012, he observed approximately ankle deep water run from the Van Dams' property across M&K's lawn and parking lot after a rainstorm. As he conceded, however, the water did not, however, disturb M&K's property.

M&K has thus shown, at best, that in the past, on rare occasions and after heavy storms, water has flowed onto its property from the Van Dams'. There is no evidence that the proposed project, after the stormwater management systems are in place, will have even that effect. M&K's contention that the drainage controls will be ineffective is thus nothing more than speculation, and thus inadequate to establish standing.

Moreover, above and beyond the proposed stormwater management system, the Planning Board imposed a number of conditions on the site plan approval that address drainage in the lower portion of the property. All existing and future use of the property beyond the delineated limit of work near the plateau's rear edge is prohibited unless and until a new site plan approval is obtained. [Note 30] Any existing disturbances in that area — essentially the entire lower portion of the property that is currently covered in gravel and used for parking and storage — must be stabilized with loam and seed or other vegetation. [Note 31] Crushed stone also must be installed at a depth of six inches from the rear of the parking lot to the hay bale line. [Note 32] In addition, the outside storage of fleet vehicles and the outside maintenance or washing of vehicles is prohibited. [Note 33]

With those conditions in place on top of the site plan's runoff controls, and in the absence of any credible expert evidence from M&K to substantiate its allegations, M&K has failed to show that it will experience "more than minimal or slightly appreciable harm" as a result of the proposed project. Kenner, 459 Mass. at 121. M&K thus lacks standing to challenge the planning board and ZBA decisions.

Conclusion

For the foregoing reasons, I find and rule that M&K's claims fail on their merits and, more importantly, that M&K lacks standing to bring them. M&K's claims in both cases are thus DISMISSED, with prejudice.

Judgments shall enter accordingly.

SO ORDERED.