MISC 15-000210

May 1, 2017



Plaintiffs Michael Donnelly ("Donnelly"), Alan Nakashian-Holsberg ("Holsberg"), John Pecora ("Pecora"), Laurence Sweeney ("Sweeney"), Judith Consentino ("Consentino"), Marielaina Lorrey ("Lorrey"), Michael Greeley ("Greeley"), Craig Galipeau ("Galipeau"), and James Coveno ("Coveno") (together, "Plaintiffs") commenced this action by filing an unverified Complaint on June 4, 2015, appealing, pursuant to G. L. c. 40A, § 17, a decision (the "ZBA Decision") of Defendant Westford Zoning Board of Appeals (the "ZBA"), which granted the application of Defendants Newport Materials LLC ("Newport Materials") and 540 Groton Road LLC ("540 Groton") (together, the "Applicants") [Note 1] for a variance (the "Variance") relative to the meaning of the word "quiet" within the definition of the term "Light Manufacturing", as set forth in Section 10.2 of the Town of Westford's (the "Town") Zoning Bylaw (the "Bylaw").

This case is the fourth in a series of four related cases. The first of these was Newport Materials LLC v. Westford Planning Board (Land Court Case No. 10 MISC 429867) ("Case 1"), which pertained to a 2009 denial by the Westford Planning Board (the "Planning Board") of a request for two special permits and a site plan review relative to Newport Materials's proposal to construct and operate an asphalt plant (the "Project") at the property located at 540 Groton Road in Westford ("Locus"). The second related case (Land Court Case No. 15 MISC 000164) ("Case 2") also involved the Applicants and the Planning Board, and it pertained to a 2015 denial of a subsequent special permit application relating to the same proposed asphalt plant. [Note 2] The third related case (Land Court Case No. 15 MISC 000208) ("Case 3") was an appeal by the Applicants from a 2015 denial by the ZBA of a use variance application made by the Applicants relating to the same proposed asphalt plant. In this case ("Case 4"), Plaintiffs challenge the allowance by the ZBA of a second variance application made by the Applicants in connection with the same proposed asphalt plant.

A case management conference was held in this case on July 15, 2015, at which the court (Piper, J.) considered whether this case should be consolidated with Case 3. [Note 3] At that time, both this case and Case 3 were stayed until September 30, 2015. That stay was later continued to October 15, 2015 at the request of the parties. [Note 4] Cases 3 and 4 were then reassigned to this Session of the Land Court (Sands, J.) in October of 2015.

On December 21, 2015, Plaintiffs in this case moved to transfer Cases 3 and 4 to a different Session of the Land Court, and for this court (Sands, J.) to recuse itself from these matters. On December 28, 2015, Plaintiffs moved to consolidate Cases 3 and 4, and also moved to intervene in Case 1. After a hearing on these motions held on January 5, 2016, by Order dated January 12, 2016, this court denied both motions in their entirety.

While this case and Case 3 were stayed, litigation in Cases 1 and 2 continued, with the parties to those cases engaging in ongoing discovery, with a trial scheduled for August of 2016. On August 15, 2016, however, the parties to Cases 1 and 2 requested a continuance of the trial of those cases, reporting that they were nearing a settlement agreement. That request was allowed, and the trial was continued to October of 2016. On October 5, 2016, the parties to Cases 1 and 2 filed a Settlement and Release Agreement between the Applicants, the Planning Board, and the Town dated September 27, 2016 (the "Settlement Agreement"). Pursuant to the Settlement Agreement, the parties entered into an Agreement for Judgment (the "Agreement for Judgment") settling Cases 1 and 2 and dismissing Case 3. [Note 5] By Order Allowing Agreement for Judgment to Enter dated October 24, 2016, this court allowed the Agreement for Judgment to enter in Case 1, Case 2 and Case 3. [Note 6]

On December 16, 2016, the Applicants moved for summary judgment in this case, arguing that Plaintiffs lacked standing. That motion was supported by a memorandum of law, a statement of material undisputed facts, and an affidavit of Matthew Waterman. On January 17, 2017, Plaintiffs moved to amend their Complaint (to replace Donnelly with Gauntlett). [Note 7] On the same date, Plaintiffs filed a brief in opposition to Defendants' summary judgment motion, supported by a memorandum of law, affidavits of Pecora and Gauntlett, and depositions transcripts for Pecora and Gauntlett. The Applicants filed their reply brief on January 26, 2017, together with a new statement of material facts and a brief in opposition to Plaintiffs' motion to amend their Complaint. A hearing on both of the motions was held on February 2, 2017, at which time both motions were taken under advisement.

Based upon the parties' statements of material facts, as well as the affidavits and exhibits contained in their moving briefs, I hereby find that the following material facts are not in dispute:

1. In April of 2009, the Applicants filed applications with the Planning Board for Site Plan Review, a Major Commercial Project ("MCP") special permit, and a Water Resource Protection Overlay District ("WRPOD") special permit for the Project. [Note 8] The Planning Board denied all three permits after determining that the Project did not qualify as a "light manufacturing" use under the Bylaw. The Applicants appealed this denial to the Land Court in Case 1, which was decided by the 2014 Land Court Decision, which, among other things, remanded the matter to the Planning Board and advised the Applicants to resubmit revised applications for all three permits. [Note 9] In a related footnote in the 2014 Land Court Decision, the court stated as follows:

if Plaintiffs submit revised plans for the Project that include . . . plausible means of noise attenuation such that the noise impact on the West Boundary Line would be 69 dBA or less, it is the opinion of this court that the Project would be allowed as of right at Locus, subject to the requirements (discussed below) as to obtaining MCP and WRPOD special permits, as well as a special permit to operate multiple uses at the Groton Parcel (which, the court expects, given the multiple uses already being conducted at the Groton Parcel, would be routinely granted). As discussed above, such a renewed application should also address the issue of whether the Project will include non- electrical motorized power sources, and whether any such source would be "substantially noiseless and inoffensive."

2. On January 5, 2015, the Applicants applied for revised special permits and variances from both the Planning Board and the ZBA. [Note 10] On January 16, 2015, the Applicants requested withdrawal of the Special Permit application filed with the Planning Board under Section 9.3 of the Bylaw (multiple principal uses). On the same day, the Applicants submitted to the ZBA a request for the Variance from the maximum noise level requirements of Section 9.3A of the Bylaw. On March 18, 2015, the ZBA voted 5-0-0 to approve the Variance. However, on March 31, 2015, the ZBA voted, at the request of the Applicants, to reopen the public hearing on the Variance to allow for additional public hearings and submission of additional documentation. At a special meeting on May 6, 2015, the ZBA voted 4-1-0 to approve the Variance. In accordance with that vote, the ZBA Decision issued on May 15, 2015.

3. The ZBA Decision states that "[t]his petition is predicated on the assumption that the Planning Board (or higher authority on appeal) waives construction of noise attenuation requirements with respect to the westerly property line as part of an approval of a Special Permit for a Major Commercial Project."

4. The ZBA Decision further provides as follows:

At a Special meeting held on May 6, 2015, the Board voted 4-1-0 to APPROVE the Variance application submitted under Section 10.2 of the Town of Westford Zoning Bylaw regarding the term "quiet" within the definition of Light Manufacturing to allow the addition of an Asphalt Manufacturing Facility at 540 Groton Road (also known as 20 Commerce Way) with respect to the westerly property line (abutting the Fletcher Quarry), specifically so as to allow a maximum of 75dBA at said westerly property line (75dBA exceeds the maximum 70 dBA allowed, and provides a 32 dBA increase above ambient sound level whereas only a 10 dBA increase above ambient is allowed).

The ZBA Decision weighed these noted non-conformities with the noise requirements of the Bylaw, and found that "the project meets all three criteria established in the Zoning Bylaw for a Variance." The ZBA Decision then set forth a full analysis of each of the three criteria for issuance of a variance,

as follows:

1. Criteria 1: "owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located,"

a. Relative to noise attenuation requirements for the proposed Facility, the Board found the westerly property line of the subject property to be topographically unique because the abutting property (to the west) is characterized by an active quarrying operation. The Applicant testified that quarrying activities at the abutting property (Fletcher Quarry), including but not limited to, use of heavy machinery, blasting, heavy truck trips, etc., resulted in greater noise disturbance than the projected noise associated with the proposed Asphalt Facility, and perhaps greater than the aforementioned 70 dBA noise threshold. Furthermore, the Applicant provided written documentation that the abutting property owner did not object to the proposal. The Applicant also testified that the affected abutting property contains a significant topographical feature, a long sharp cliff-like incline that serves to provide a natural berm, effectively buffering the affected property from some of the projected noise associated with the proposed Asphalt Facility.

b. Therefore, the Board found that this criterion is satisfied with respect to the westerly property line.

2. Criteria 2: "a literal enforcement of the provisions of the Bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant,"

a. Evidence was presented by the Applicant to the Board that construction of a twelve hundred (1,200) foot long thirty-five (35) foot tall noise attenuation barrier would be required in order to satisfy noise attenuation standards with respect tot he westerly property line. The Applicant stated that construction of the full noise attenuation barrier would likely cost between $500,000 and $1,000,000, and would serve only for the benefit of an abutting property that itself generates a significant amount of noise.

b. Therefore, the Board found that enforcing this provision of the Bylaw with respect to the westerly property line would involve a substantial financial hardship to the petitioner.

3. Criteria 3: "and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw."

a. The Board received testimony from the Applicant that construction of the full noise attenuation barrier along the westerly property line would only serve to benefit another facility (Fletcher Quarry) that itself generates more noise than the proposed Asphalt Facility. This finding is only with respect to the westerly property line, and only addresses noise generated by the proposed Asphalt Facility proper, and not any of the incidental noise associated with heavy trucks entering and exiting the Facility.

b. Four members of the Board concluded that such relief could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this Bylaw. The Board notes that the projected sound increase at the easterly property line is 9 dBA - very close to the 10 dBA limitation. No variance is hereby granted from the definition of Light Manufacturing at the easterly property line.

5. Donnelly, who lived at 263 Groton Road in Chelmsford, sold his property by deed dated August 24, 2016, to Kathryn M. Sapp, who is not a party to this case. Until this sale, he was a direct abutter to Locus. He was a notified party relative to the ZBA hearings involving Locus.

6. Pecora's property is located at 249 Groton Road in Chelmsford, which is 420 feet from Locus. Pecora is not a direct abutter of Locus, but is an abutter to an abutter of Locus. However his property is not located within 300 feet of Locus. Nonetheless, he was a notified party relative to the ZBA hearings involving Locus.

7. Greeley resides at E49 Scotty Hollow Drive in Chelmsford, a property 630 located feet from Locus. He does not own this property. Even if he did own it, he would not be an abutter or an abutter to an abutter within 300 feet of Locus. Nonetheless, the owner of this property was a notified party relative to the ZBA hearings involving Locus.

8. Consentino's property is located at C26 Scotty Hollow Drive in Chelmsford, which is located 1,385 feet from Locus. She is not an abutter or an abutter to an abutter within 300 feet of Locus. She was not a notified party relative to the ZBA hearings involving Locus.

9. Lorrey's property is located at C28 Scotty Hollow Drive in Chelmsford, which is located 1,420 feet from Locus. She is not an abutter or an abutter to an abutter within 300 feet of Locus. She was not a notified party relative to the ZBA hearings involving Locus.

10. Sweeney's property is located at 9 Lynn Avenue in Chelmsford, which is located 2,395 feet from Locus. He is not an abutter or an abutter to an abutter within 300 feet of Locus. He was not a notified party relative to the ZBA hearings involving Locus.

11. Holsberg's property is located at 6 Betty Lane in Westford, which is located 2,750 feet from Locus. [Note 11] He is not an abutter or an abutter to an abutter within 300 feet of Locus. He was not a notified party relative to the ZBA hearings involving Locus.

12. Galipeau's property is located at 3 Betty Lane in Westford, which is located 2,515 feet from Locus. He is not an abutter or an abutter to an abutter within 300 feet of Locus. He was not a notified party relative to the ZBA hearings involving Locus.

13. Coveno's property is located at 6 Sweetwood Circle in Westford, which is located 1,724 feet from Locus. He is not an abutter or an abutter to an abutter within 300 feet of Locus. He was not a notified party relative to the ZBA hearings involving Locus.

14. Gauntlett's property is located at 264 Groton Road in Chelmsford. She is an abutter to an abutter within 300 feet of Locus and was a notified party relative to the ZBA hearings involving Locus. [Note 12]

15. In support of their allegations of harms, Plaintiffs submitted affidavits and deposition transcripts for Pecora and Gauntlett. In their affidavits and depositions, Pecora and Gauntlett alleged that their concerns include increased truck traffic, safety, noise, pollution, dust, and odors. The specifics of their allegations are discussed more fully below.

16. None of the other Plaintiffs submitted any evidence with respect to alleged harms, nor did Plaintiffs submit any expert testimony or reports to substantiate their claims.

17. In opposition to Plaintiffs' claims of harm, the Applicants submitted multiple reports from experts in the area of noise and sound attenuation, environmental impacts, and traffic. They also submitted a copy of the Special Permit, which imposes numerous restrictions and conditions upon the Project, which are intended to limit noise, environmental, and traffic impacts of the Project upon surrounding properties. The specifics of the foregoing are discussed more fully below.


Plaintiffs' Motion to Amend

Before proceeding to the Applicants' summary judgment motion, I must rule on Plaintiffs' motion to amend the complaint to substitute Andrea Gauntlett for Michael Donnelly as a Plaintiff. The Applicants opposed this motion, arguing that is it untimely, dilatory and prejudicial. They also claim that it is futile, a claim that they based upon their arguments against Plaintiffs' standing. Whether to allow amendment of a pleading to add a party is left to the broad discretion of the court. Berman v. Linnane, 434 Mass. 301 , 304 (2001). Each of the concerns raised by the Applicants, if present, can support denial of a motion to amend. Herrick v. Essex Regional Retirement Bd., 68 Mass. App. Ct. 187 , 192 (2007); Eastman v. Steadman, 273 Mass. 364 , 368 (1930).

The court is sympathetic to these concerns. It is true that Plaintiffs did not seek to amend their Complaint to add Gauntlett as a party until after the Applicants attacked Plaintiffs' standing, noting in particular that, following the sale of Donnelly's property, none of the remaining Plaintiffs enjoyed a statutory presumption of standing. By adding Gauntlett, it is clear that Plaintiffs were attempting to restore the state of affairs in which at least one of them enjoyed such a presumption.

The court is also aware that the tactic employed by Plaintiffs here has the potential for abuse. If unchecked, this tactic could be used in any zoning challenge in which standing is an issue to short- circuit a standing challenge after it is lodged simply by recruiting another party with better prospects at surviving such challenge to intervene and join the action. That tactic theoretically could also be used to circumvent the strictly-enforced statutory deadline for filing zoning appeals such as this, as it would enable a concerned party lacking standing to file an appeal during the statutory period, and, while that appeal is ongoing, attempt to locate and recruit parties who do have standing (who may or may not have themselves filed an appeal) to join in the action, thus retroactively curing a standing defect, while at the same time impermissibly extending (potentially for months if not years) the statutory appeals window.

These are all legitimate concerns that the court bears in mind. However, the court is not concerned that they are being actualized here. As Plaintiffs note, the Applicants have been aware for many months that Gauntlett, while not named a party, had an interest in this case and objected to the Project. The Applicants thus deposed her on March 2, 2016. Moreover, the Applicants have not articulated any cognizable prejudice that would result if the court were to allow Gauntlett to join this litigation. It is true that the Applicants lose the argument that none of Plaintiffs enjoy a presumption of standing, but that turns out irrelevant based on the fact that the Applicants here have sought (successfully, as discussed below) to rebut the presumption of standing. In sum, Gauntlett's presence in this litigation is not determinative of whether it may proceed based upon the Applicants' standing challenge. She adds nothing to Plaintiffs' standing case, but she also does not detract anything. [Note 13]

Based upon the foregoing discussion, it is with a strong word of caution to Plaintiffs and their counsel to be mindful of the potential for abuse that their last-minute amendment of their pleadings could engender that I ALLOW Plaintiffs' motion to amend the Complaint. Donnelly is thus hereby dismissed as a Plaintiff in this case and Gauntlett is substituted as a Plaintiff in his stead.

The Applicants' Motion for Summary Judgment

Summary judgment under Mass. R. Civ P. 56(c) is appropriate only if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). Where, as here, the moving party seeks summary judgment dismissing the non-moving party's case, summary judgment is appropriate where the moving party demonstrates that there is an absence of evidence to support the non-moving party's case. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1911).

As noted above, the Applicants' instant motion is premised upon their claim that Plaintiffs did not have standing to challenge the Variance because, the Applicants argue, they are not "aggrieved" by the ZBA Decision. Plaintiffs dispute this claim, arguing that they were "aggrieved" and thus do have standing.

It is well-settled that, in G. L. c. 40A, § 17 zoning appeals such as this, "[o]nly a ‘person aggrieved' may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). While most would-be appellants under this Section must affirmatively demonstrate aggrievement, Green v. Bd. of Appeals of Provincetown, 404 Mass. 571 , 573 (1989), a party is presumed to be a "aggrieved" if they can demonstrate that they are a "party in interest", a term defined in G. L. c. 40A, § 11 as "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . ." Id.; Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986).

However, even if a party does enjoy this statutory presumption of standing, if an opposing party "offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the [party claiming standing] must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012). If that occurs, the party claiming standing must then offer by "direct facts and not by speculative personal opinion-that his injury is special and different from the concerns of the rest of the community." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). The court must then decide the issue of standing "on the basis of all the evidence, with no benefit to the Plaintiff from the presumption of aggrievement." 81 Spooner Road, 461 Mass at 701.

If an appellant is not a "party in interest" with a presumption of standing, they may "acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). To do so, "a plaintiff must establish--by direct facts and not by speculative personal opinion--that his injury is special and different from the concerns of the rest of the community." Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992); see also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (plaintiff's injury resulting from the board's decision must be "special and different from the injury the action will cause to the community at large"). [Note 14] To assert a plausible claim of aggrievement, a "plaintiff must put forth credible evidence to substantiate his allegations", Marashlian, 421 Mass. at 721, which consists of:

both a quantitative and a qualitative component . . . . 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.

Butler, 63 Mass. App. Ct. at 441.

In the present case, I FIND that Gauntlett is a party in interest under G.L. c. 40A, § 11, and is thus presumed to have standing--a presumption that the Applicants have the burden of proof to rebut. I further FIND that Holsberg, Pecora, Sweeney, Consentino, Lorrey, Greeley, Galipeau, and Coveno are not parties in interest under G.L. c. 40A, § 11, so the burden of proof is theirs to affirmatively demonstrate aggrievement. If they cannot, the Applicants need only show that they have no reasonable expectation of proving a legally cognizable injury. Standerwick, 447 Mass. at 35 (citing Kourouvacilis, 410 Mass. at 716).

I will address Gauntlett's standing first, because if her presumption of standing survives scrutiny, that will be sufficient for all of the remaining Plaintiffs. 81 Spooner Road, 461 Mass at 697, n. 10 ("Only one of the parties in a zoning appeal must be an "aggrieved" person under G.L. c. 40A to establish standing to challenge a zoning decision."). In their summary judgment motion, the Applicants stress that the Variance is limited in its scope. They seek a variance from the requirements imposed by the Bylaw with respect to noise at a specific location--the westerly boundary of Locus, where Locus abuts the Fletcher Quarry. The practical effect of this Variance is that the Applicants, as part of the Project, would not be required to construct a sound barrier between Locus and the Fletcher Quarry in order to diminish the sound impact at that location. [Note 15] Thus, the Variance was granted specifically subject to the presumption that the Planning Board would not require that barrier to be constructed if the Variance were to be granted.

While the Variance would permit the Applicants to forego building this sound attenuation barrier to shield the property to the west, the Applicants point out that Gauntlett's property is not among the properties that such a barrier would have shielded from noise effects of the Project, as her property is located to the east of Locus. As such, they note, the absence of a westerly sound barrier will have no effect upon her whatsoever. [Note 16] Indeed, as noted by the Applicants, even though the Project is not projected to cause noise in excess of the requirements of the Bylaw at the easterly boundary of Locus, as part of the Project, a different sound barrier (required as a condition of the Special Permit issued pursuant to the Agreement for Judgment, if upheld) will be constructed on the easterly edge of Locus, which will shield Gauntlett's property from noise generated by the Project. [Note 17] Based upon these facts, I FIND that the Applicants have rebutted Gauntlett's statutory presumption of standing. Thus, the burden of proof to affirmatively demonstrate aggrievement is upon her, as it is with all of her remaining co-Plaintiffs. Standerwick, 447 Mass. at 33.

Before getting to the specifics of Plaintiffs' claims, it seems appropriate to take a view of this dispute from 35,000 feet. The Project will be built on a two acre portion of an eight acre parcel located near the middle of Locus. Locus is a 115.52 acre parcel located in an area zoned industrial located near the junction between two major regional thoroughfares (Massachusetts Route 40, a/k/a Groton Road, and U.S. Route 3, a/k/a the Northwest Expressway). Locus is bounded by Route 40 to the south, the historic Fletcher granite quarry to the west, and industrial lots and Route 3 to the north and east. Locus is located near the Westford/Chelmsford line. There are numerous commercial operations (including a trailer sales company, a landscaping supply company, and a solar panel array) located in and around this area. As noted, the relief granted by the Variance pertained to the westerly boundary of Locus--between Locus and the Fletcher Quarry.

All of Plaintiffs reside in residentially-zoned areas of Westford or Chelmsford located to the southwest or east of Locus. Pecora is the only Plaintiff whose property (located in Chelmsford east of Locus, on the north side of Route 40) is not separated from Locus by either of the two major thoroughfares running through this area. Even he, however, is more then 400 feet from Locus. As noted above, the only one of Plaintiffs who is an abutter or abutter to an abutter within three hundred feet of Locus is Gauntlett, and her home is located to the southeast of Locus, across Route 40 in Chelmsford. Across Route 3 to the east is a Chelmsford residential neighborhood where Greeley, Lorrey, and Consentino live. Sweeney's property (also in Chelmsford) is located nearly half a mile away from Locus, and is separated from Locus by both Route 3 and Route 40. Three Plaintiffs (Galipeau, Coveno, and Holsberg) reside in Westford. Their properties are located across Route 40 to the southwest of Locus, all more than 1,700 feet away from Locus.

Plaintiffs assert as harms the deterioration of the character of the neighborhood where they reside, [Note 18] truck traffic and congestion, [Note 19] as well as noise, fumes, and other environmental impacts resulting from truck traffic. [Note 20] Plaintiffs did not introduce any expert evidence as to any of these concerns, relying instead on their own (lay witness) testimony in depositions and affidavits as to adverse "quality of life" effects they believe will occur. In this regard, Plaintiffs submitted affidavits and deposition transcripts for Pecora and Gauntlett. None of the other Plaintiffs submitted any evidence whatsoever with respect to alleged harms. [Note 21]

Pecora, in his affidavit and deposition, stated that, since 2009, truck traffic on Groton Road has increased. Gauntlett's testimony corroborated these concerns as to increased traffic in recent years, noting that she had observed trucks speeding on Groton Road. As a result, Pecora alleged, he is concerned for the safety of himself and people at his property, and thus can no longer go jogging in the neighborhood or let children play in his yard. Both also noted that the traffic generates noise (which they claimed interferes with outdoor activities) [Note 22] and "pollution". [Note 23] He also claimed that he was concerned that the Project would produce "an odor indication", which he based on his personal experience of another asphalt plant in Chelmsford.

The allegations of Pecora and Gauntlett suffer from a number of problems. First, and most problematically, even if accepted as true, they do not appear to have any causal relation to the purpose and effect of the Variance, which pertains only to noise levels (of the Project) at the westerly boundary of Locus, as was made quite clear in the ZBA Decision. Morever, the term "quiet", for present purposes, is important in terms of its place in the definition of "Light Manufacturing" in the Bylaw, which is as follows:

fabrication, assembly, processing or packaging operations employing only electric or other substantially noiseless and inoffensive motor power, utilizing hand labor or quiet machinery and processes, but subject, however, to the following conditions: any light manufacturing business, the conduct of which may be detrimental to the health, safety or welfare of persons working in or living near the proposed location of such manufacturing, including, without limiting the generality of the foregoing, special danger of fire or explosion, pollution of waterways, corrosive or toxic fumes, gas, smoke, soot, dust or foul odors and offensive noise and vibrations, is expressly prohibited.

It is clear from this definition that the term "quiet" is focused on the "machinery and processes" of the use in question. Thus, here, the specific focus of the term "quiet" was on the operations of the Project itself (and not to any ancillary activities related thereto, such as truck traffic) at the westerly property line of Locus. As such, the vast majority of the findings in the ZBA Decision related solely to the westerly property line of Locus, [Note 24] as to which the ZBA made extensive findings relative to all three criteria required for the Variance.

This, by itself, is fatal to Plaintiffs' case because the Variance (pertaining to noise generated by the Project itself at the western boundary of Locus) has nothing whatsoever to do with the harms alleged by Plaintiffs (truck traffic and noise, air pollution, and dust generated thereby). [Note 25] The only thing that the Variance (as opposed to other zoning relief decisions of the Planning Board and/or ZBA) does is to permit the Project to deviate slightly from the Bylaw's maximum noise requirement by allowing the Applicants to forego building a sound barrier at the western boundary of Locus. Moreover, as to this specific effect of the Variance, the evidence shows that Plaintiffs would not be affected in any meaningful way whether or not a sound barrier were to be built. As noted in a March 10, 2015 letter prepared by Cavanaugh Tocci Associates, Inc. (a firm hired by the Applicants to prepare noise studies for the Project) ("CTA") specifically notes that "[n]one of the sound barriers discussed in CTA January and March 2015 reports would provide any perceptible acoustical benefit to any Town of Westford or Town of Chelmsford residences or commercial buildings." [Note 26] The only thing that the sound barrier that the Variance allows the Applicants to forego building would do would be to shield the next-door Fletcher Quarry from noise, and the owner of that quarry was in support of the Variance. Thus, even if the ZBA had denied the Variance and required such a sound barrier to be built, Plaintiffs would not be benefitted in any way thereby. [Note 27] The other side to this coin is that Plaintiffs--because they would not be benefitted from the denial of the Variance--would likewise not be harmed by its allowance.

Second, even if there were a causal link between the Variance and the harms alleged by Plaintiffs, Plaintiffs' allegations of harm are entirely based on the past and existing use of Groton Road, and not on any facts related to increased use from the Project. The presumption inherent in these statements is that more traffic will necessarily make the alleged problems worse. However, this is an assumption that is not argued for nor established by any concrete evidence adduced by Plaintiffs. [Note 28] Thus, Plaintiffs' claims amount to little more than unsubstantiated lay witness allegations unsupported by any credible evidence suggesting that these concerns amount to anything more than speculation.

Third, even if there were a causal link between the Variance and Plaintiffs' claimed harms, and even if these claims were tied to projected future use associated with the Project itself, the vast weight of the evidence clearly establishes that any impact of the Project on surrounding properties (excepting the Fletcher Quarry) would be well within limits set forth in the Bylaw, Massachusetts environmental regulations, and conditions prescribed by the Special Permit. In particular, with respect to what appears to be Plaintiffs' primary concern (truck noise), the analysis of the Applicants' sound experts, CTA, which was presented to the Planning Board during the 2009-2010 hearings on Plaintiffs' applications, was that additional truck traffic generated by the Project "would result in an imperceptible increase in sound level and accordingly a negligible increase in traffic noise impact." The same is true with respect to Plaintiffs' remaining concerns having to do with traffic/safety and "pollution" (i.e., dust and odors), as to which scientific reports in evidence clearly establish that any effect of increased truck traffic would be well within legal limits.

On top of the myriad legal protections already in place, the Project will be operated subject to the conditions and requirements of the Special Permit, which imposes a new level of protections against the harms alleged by Plaintiffs. For instance, the Special Permit requires noise testing both at night and during the day to monitor compliance with the Bylaw's noise requirements. It further requires the Applicants (a) to ensure that all roads into and out of the Project are maintained in a paved and clean condition to minimize dust creation; (b) to require all trucks to keep their loads covered after loading and to limit their on-site speed to ten miles per hour; (c) to "employ best management practices to minimize fugitive particulate emissions from the facility"; (d) to comply with all local, regional, state, and federal requirements regarding noise pollution, odors, and related nuisances; (e) to "immediately take appropriate steps to abate [any] nuisance condition(s)", such as "smoke, dust, odor or noise"; and (f) to undergo periodic testing relating to noise and environmental effects on an ongoing basis.

Fourth, and finally, as both Pecora and Gauntlett acknowledged in their depositions, Plaintiffs live in an area that has traditionally been used to facilitate many commercial and industrial uses--many of which already existed when they purchased their properties. Both thus acknowledged that they was aware that they were buying a home in an area that had the potential to be used for commercial and industrial uses for the foreseeable future. [Note 29] [Note 30] Continuation of (and possible increases in) such usage is a factor Plaintiffs' accepted when they purchased their properties.

The foregoing problems appear to be fatal to Plaintiffs' standing in this case. The burden of proof was upon Plaintiffs to establish their standing. The Applicants have submitted evidence that clearly indicates that the Variance (whether granted or denied) would have no effect upon Plaintiffs whatsoever. Moreover, even if the alleged effects of truck traffic associated with the Project were relevant in this action, [Note 31] the evidence overwhelmingly indicates that those effects will be well within legal limits, and subject to ongoing observation, management, and municipal control. Plaintiffs have responded to this considerable evidence with only lay witness testimony regarding past and present experiences, and have provided no evidence (expert or lay) to substantiate a viable claim of aggrievement.

In sum, based on the foregoing discussion, I FIND that Plaintiffs have failed to "put forth credible evidence to substantiate [their] allegations", Marashlian, 421 Mass. at 721, that, by virtue of the Variance, they would suffer injuries any "injury [that is] special and different from the concerns of the rest of the community." Barvenik, 33 Mass. App. Ct. at 132. As such, I FIND that Plaintiffs lack standing to pursue this action. I therefore ALLOW the Applicants' motion for summary judgment. [Note 32] This case is thus hereby DISMISSED, with prejudice.

Judgment to enter accordingly.


[Note 1] The Applicants are separate but related corporate entities organized for the purpose of holding title to the subject parcel (540 Groton) and conducting business operations on the site in question (Newport Materials).

[Note 2] The special permit application at issue in Case 2 was filed following this court's December 8, 2014 Decision in Case 1 (the "2014 Land Court Decision"), which, among other things, remanded that proceeding to the Planning Board with instructions to the Applicants to re-file new special permit applications. Those re-filed applications were then denied, thus occasioning Case 2.

[Note 3] Case 3 was a G.L. c. 40A, § 17 appeal from a decision of the ZBA to deny the Applicants' request for a variance or special permit to operate more than one principal use on Locus. That was a separate variance from the one at issue here. The variance requests at issue in Cases 3 and 4, as well as the special permit request at issue in Case 2, were all filed concurrently following the remand to the Planning Board in Case 1.

[Note 4] The parties sought this stay to allow litigation to proceed in Cases 1 and 2 to proceed, as the parties believed that those cases might moot or otherwise be determinative of Cases 3 and 4.

[Note 5] Plaintiffs in this case--with Donnelly replaced by Gauntlett--sought to intervene in Cases 1 and 2 for purposes of lodging objections thereto. This court denied such intervention (as moot) following the entry of the Agreement for Judgment. On November 14, 2016, Plaintiffs (again, with Donnelly replaced by Gauntlett) purported to appeal numerous Decisions and Orders issued in Case 1, including the court's denial of Plaintiffs' intervention motion and the Agreement for Judgment itself. This court rejected that notice of appeal as procedurally defective. On December 9, 2016, Plaintiffs filed a request with the Supreme Judicial Court ("SJC") for an order compelling this court to accept the Notices of Appeal. By order dated December 21, 2016, this court instructed Plaintiffs to file revised notices of appeal, taking an appeal only from such orders as Plaintiffs had standing to appeal. Rather than so doing, Plaintiffs re-filed a procedurally improper notice of appeal, purporting to appeal numerous Orders that they lacked standing to appeal, which was rejected for filing by this court on February 1, 2017. By Judgment entered on April 14, 2017, Plaintiffs' SJC petition was denied. The Judgment does not specifically note which rejected notice of appeal it was in reference to, but its general language referring to "the refusal of a clerk of the Land Court to docket the petitioners' notice of appeal" appears to encompass both.

[Note 6] In this Order, the court made several minor changes to the Agreement for Judgment. The Town objected to these changes and thus moved to vacate the Agreement for Judgment. By Order dated November 9, 2016, this court denied that motion, removed the changes made to the Agreement for Judgment, and directed that a special permit that the parties agreed would issue pursuant to the Agreement for Judgment be filed with the Westford Town Clerk. Following such filing, Plaintiffs filed an appeal from that special permit in Middlesex County Superior Court. A separate appeal was also filed by the Town of Chelmsford, also in Middlesex County Superior Court. Both of those cases are ongoing.

[Note 7] As discussed below, the reason for this amendment was that Michael Donnelly, subsequent to the filing of this case, sold his property and moved away, thus depriving him of standing.

[Note 8] MCP and WRPOD special permits are governed by Sections 9.3A and 8.0 of the Bylaw, respectively. They were required here based upon the particular location and proposed use at issue. In addition to the specific requirements governing these particularized special permits, pursuant to Section 9.0 of the Bylaw, all special permits are additionally subject to the general requirements applicable to all special permits. The Applicant's request for Site Plan Review was governed by Section 9.4 of the Bylaw.

[Note 9] In this regard, the 2014 Land Court Decision stated as follows:

Plaintiffs should resubmit to the [Planning] Board a modified site plan review application (a)incorporating the sound attenuation barriers recommended by CTA, (b) providing that the Project will employ five or more employees, (c) requesting a variance to operate more than one principal use on the [Locus], and (d) addressing the issue of the Project's power sources. Such a revised application must be also accompanied by revised applications for MCP and WRPOD special permits. If so submitted, it would appear to this court that the Project would then be permitted as of right as a light manufacturing use at Locus, subject to such conditions as the Board may reasonably require . . . .

[Note 10] The application filed by the Applicants specifically stated, in relevant part, as follows:

Based on [the standards specified in the 2014 Land Court Decision], in order to meet the definition of Light Manufacturing, the Project must not generate sound levels of greater than 70 dBA at any property boundary and the Project must not raise the sound level at any property boundary by more than 10 dBA. As part of its Decision, the Court also determined the expected sound levels to be generated by the Project. . . . [T]he Project will exceed the 70 dBA limit and will exceed the 10 dBA increase limitation on the western property boundary of the Project. The expected sound levels at the western property boundaries have been determined by the court to be 75 dBA which constitutes a 32 dBA increase over the existing ambient sound level (43 dBA). Therefore, we are specifically requesting a Variance from the required 70 dBA sound level and the 10 dBA increase limitation. In Exhibit A, attached and incorporated herein, Newport presents the basis for the grant of a variance to allow for the 75 dBA sound level and the expected 43 dBA sound level increase at the westerly boundary.

[Note 11] Holsberg is related to Alisha Nakashian-Holsberg, who presumably lives at the same address. While not officially a party to any of the four related actions, she is nonetheless a notable footnote to this saga of litigation, as she is the founder of an unincorporated political association (the Route 40 Clean Air Coalition) that is dedicated to opposing developments (like the Project) in the Westford area, and is frequently referenced and quoted in local media coverage of this dispute. Based on her behind-the-scenes involvement with local opposition to the Project, the Applicants have sought to depose her on multiple occasions in connection therewith (which this court has not allowed due to concerns as to relevancy).

[Note 12] Exhibit L in the summary judgment record is an area plan showing the locations of Plaintiffs' properties in relation to Locus. This plan was prepared before Plaintiffs sought to amend the Complaint to substitute Gauntlett for Donnelly, so it does not identify the location of Gauntlett's property. Based upon the court's review of that map (which appears to be a marked-up Google Earth satellite photo with approximate lot lines superimposed), it appears that Gauntlett's property is the five-sided rectangular-shaped lot across from Route 40 from Donnelly's property.

[Note 13] For this reason, I likewise find the Applicants' "futility" argument regarding the addition of Gauntlett as a party to be unavailing. As discussed below, standing here turns on whether Plaintiffs succeed in affirmatively demonstrating aggrievement, not on whether Gauntlett (or any other of Plaintiffs) now or formerly enjoyed a presumption of standing.

[Note 14] It is axiomatic that such an injury must be "to an interest the zoning law was intended to protect." Standerwick, 447 Mass. at 30 (quotation omitted). While the Applicants deny that Plaintiffs have asserted viable claims with respect to such interests, they do not dispute that the injuries alleged pertain to interests that would be protected by the Bylaw.

[Note 15] The operator of the Fletcher Quarry supported the Applicants' request for this Variance, both because the unique topography of the location already provided some sound attenuation, but also because the effect of an increase in noise on an operating rock quarry (itself an operation that on its own generates a great deal of noise) would be benign.

[Note 16] Documents in the summary judgment record make clear that a sound barrier on the western boundary of Locus would not have been required to meet the noise requirements of the Bylaw with respect to Plaintiffs' properties, and would have provided no benefit to Plaintiffs. See discussion, infra, with respect to the parties' standing generally.

[Note 17] Construction of this sound barrier is a specific condition of the Special Permit. Plans attached to the Agreement for Judgment describe the design of this barrier as a wooden sound barrier ten feet tall and 225 feet long. I do not rule on the sufficiency of this or any other sound attenuation measures required by the Special Permit, which will be addressed in the ongoing Superior Court appeals to the issuance of the Special Permit. See n. 6, supra.

[Note 18] While Locus is in an industrial zone, Plaintiffs' properties are in locations zoned for residential use.

[Note 19] Pursuant to the Special Permit issued as part of the Agreement for Judgment, truck traffic for the Project is limited to 200 trips per diem, with "trip" defined as every coming or going from the Project. Thus, presuming all traffic enters and leaves on the same day, the Special Permit would allow 100 in-and-out journeys. Notably, the Special Permit provides measures for the Town to oversee and ensure the Applicants' ongoing compliance with this requirement.

[Note 20] Plaintiffs acknowledge that "no studies of which the Neighbors are aware have been undertaken to evaluate the noise generated by truck traffic traveling to and from the Property."

[Note 21] All of the other Plaintiffs live a substantial distance from Locus (see area plan in evidence as Exhibit L). Except for Greeley (630 feet from Locus), all of the other Plaintiffs live substantially farther away (1,385 feet, 1,420 feet, 1,724 feet, 2,395 feet, 2,515 feet, and 2,750 feet). Five Plaintiffs live in the abutting town of Chelmsford, and four of those five live on the opposite side of Route 3, a major highway, three in a condominium complex. Only three Plaintiffs live in Westford, and all of them live a significant distance from Locus on another major highway, Route 40.

[Note 22] Pecora was specific that the noise he was concerned about was truck noise, noting that he did not actually know whether he would be able to hear any noise generated by the asphalt plant itself. Gauntlett also largely discussed noise in terms of truck traffic, but she did also briefly allude to noise generated by activities on the Applicants' property. However, she acknowledged that she had no knowledge as to the nature of the noise that would be generated by the Project, and that the kinds of noise she hears from "the yard" are caused by activities that are currently ongoing (and which will continue irrespective of whether the Project is allowed).

[Note 23] With respect to pollution, Pecora claimed that he had seen dust and other "stuff blowing out of the backs of the trucks", but that he did not have any specific concerns as to particular pollutants. Gauntlett's concern for dust was slightly different, relating to dust being kicked up off the roadways by trucks. She stated that she had not observed dust blowing off of trucks, acknowledging that the loads carried by trucks are covered. Both stated that they believed more traffic would generate more dust. However, it is worth noting that multiple conditions of the Special Permit require extensive measures to minimize dust creation, including covering loads of aggregate material while in transit, as well as taking measures to keep roadways reasonably clear of surface dust. These requirements--which are not currently in place with respect to the existing traffic--would appear to be calculated to actually reduce the amount of dust generated.

[Note 24] There was one sentence of the ZBA Decision that focused on the easterly property line.

[Note 25] These harms claimed by Plaintiffs actually relate not to the Variance itself (which gives only limited zoning relief as to a particular aspect of the Project), but rather to the Special Permit, which permits the Project generally. The objections raised here thus should be raised as against the Special Permit itself. Notably, Plaintiffs have challenged the Special Permit in a separate action filed in December of 2016 in Middlesex Superior Court, and have raised in that case identical issues to the ones they sought to assert here duplicatively.

[Note 26] It was already established in the 2014 Land Court Decision that the Project would not generate improper levels of noise at any boundary of Locus other than its westerly boundary. While that conclusion is not binding on Plaintiffs, who were not parties to Case 1, it is supported also by the evidence in this case--i.e., the same March 10, 2015 CTA letter, which confirms that a noise barrier would not be required "to achieve compliance with any...acoustical criteria at any residences or commercial buildings."

[Note 27] Indeed, it was CTA's recommendation that the Fletcher Quarry itself (not any sound barrier) would provide the greatest acoustical benefit to properties to the west of Locus. As to properties to the east, CTA noted that the distance between Locus and surrounding residences and commercial buildings would provide sufficient noise attenuation.

[Note 28] As noted, the affirmative impact-mitigation measures required by the Special Permit go beyond what is currently required because the Town has crafted limitations and requirements calculated to not only reduce impacts of the Project itself, but which could lessen even existing impacts of the use of the property and Groton Road generally.

[Note 29] Although, as noted, none of the other Plaintiffs submitted evidence with respect to their claims. Thus, there is nothing in the record to indicate that any of these other Plaintiffs did not, like Pecora and Gauntlett, also come to purchase their properties fully knowing that the area had been and could in the future be used for industrial and commercial purposes.

[Note 30] Perhaps at the bottom of Plaintiffs' concerns as to the alleged "residential character" of the pockets of residential developments interspersed among the prevailing commercial and industrial uses in this area is that Plaintiffs desire their neighborhood to transition away from its current character. This may be their hope, but the reality (as this court has observed upon its site view of Locus) is that this is a predominantly commercial/industrial area. Moreover, with respect to the possibility of future residential use of the area, it has already been noted in connection this litigation that much of the area (approximately 800 acres, including the Fletcher Quarry) is subject to Planning Board restrictions prohibiting residential development.

[Note 31] As discussed above, those effects are not relevant in this case, which pertains only to the limited relief granted by the Variance, which has nothing whatsoever to do with truck traffic. However, it should not be thought that Plaintiffs are left without recourse to raise their concerns. They can raise (and indeed already have) such concerns in their appeal from the Special Permit, issued pursuant to the Agreement for Judgment.

[Note 32] The Applicants' motion did not address in any way the merits of the Variance and whether it was properly granted. Plaintiffs, in their opposition brief, briefly address the merits by arguing that the Variance was improperly granted because it was based upon topographical features of the Fletcher Quarry lot, and not features of Locus specifically. However, because Plaintiffs have not established standing, I need not and do not reach the merits of the issue of the propriety of the Variance. Even if Plaintiffs had not lost on standing, they did not move for summary judgment on this question, so nothing in that regard is presently before this court to rule upon.