DONNELLY vs. WESTFORD ZONING BOARD OF APPEALS, MISC 15-000210

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.

Of even date hereof, this court has issued a Decision (the "Decision"). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:

ORDERED and ADJUDGED that Plaintiffs' motion to amend the Complaint is ALLOWED, and Donnelly is thus dismissed as a Plaintiff in this case and Gauntlett is substituted as a Plaintiff in his stead; and,

ORDERED and ADJUDGED 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; and,

ORDERED and ADJUDGED 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; and,

ORDERED and ADJUDGED 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; and,

ORDERED and ADJUDGED that Plaintiffs have failed to "put forth credible evidence to substantiate [their] allegations", Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996), 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 v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992); and,

ORDERED and ADJUDGED that Plaintiffs lack standing to pursue this action; and,

ORDERED and ADJUDGED that the Applicants' motion for summary judgment is ALLOWED; and,

ORDERED and ADJUDGED that this case is DISMISSED, with prejudice.

SO ORDERED.

[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.

MISC 15-000210

May 1, 2017

SANDS, J.

JUDGMENT