MISC 13-476822

January 8, 2018

Nantucket, ss.




On February 25, 2013 Michael Cohen, Edward M. Soffen, as General Partner of The Soffen Family Limited Partnership, Andrew 0. Eshelman, Susan J. Shepherd, and Davi-Ellen Chabner, as Trustee ofChabner Realty Trust (collectively "Plaintiffs") filed this case appealing, pursuant to G.L. 40A, § 17, a decision of the Nantucket Planning Board ("Board") whose members are in their official capacity defendants in this case, and seeking from the court declaratory relief against the Town of Nantucket ("Town") pursuant to G.L. c. 240, § 14A. The Board's decision ("Decision") was filed with the Town Clerk on February 7, 2013, and granted a Major Commercial Development Special Permit ("MCD Special Permit") to defendant Nantucket Hunting Association, Inc ("NHA").

After trial, I conclude, on all of the testimony and other evidence I credit, that the Decision of the Board was lawful and adequate, and will be upheld by this court, and that Plaintiffs will be denied the declaratory relief that they seek.


On April 12, 2004, the Nantucket Town Meeting adopted Article 90: "Real Estate Disposition: Lease Authorization for Recreational Shooting Range," which authorized the lease of a twenty-seven acre Town-owned property ("Property") [Note 1] for use as a recreational shooting facility. On April 13, 2011, the Town, through its Board of Selectmen, entered into an "Amended and Restated Ground Lease Agreement" ("Lease") under which the Town leased the Property to the NHA. On July 16, 2012 the NHA applied to the Board, pursuant to § 139-11 of the Town of Nantucket Zoning Bylaws ("Bylaws"), for an MCD Special Permit to develop a recreational shooting facility. The NHA submitted three amended plans (the "Plans") between August and December of 2012, depicting and laying out the various structures, enviromnental studies, and safety features of the project. The Plans for the NHA's shooting facility ("Shooting Facility") approved by the Board are entitled "Nantucket Shooting Park, 1 Shadbush Road, Nantucket Hunting Association" sheets 1-6, prepared by Blackwell & Associates, Inc., and dated July 2012, as amended on August 31, 2012, November 6, 2012, and December 10, 2012. The NHA's Shooting Facility proposal includes: an administration building, a ninety-two-foot-long "range building," three open-air rifle/pistol ranges, a kiosk, a bathroom, two parking areas with thirty-six parking spaces, one open-air trap range, and an archery range. On January 29, 2013, following public hearing held over six separate days, the Board granted the NHA an MCD Special Permit including major site plan approval ("NHA Permit"), authorizing NHA to construct the Shooting Facility. The Board, in granting the MCD Special Permit, found that the Shooting Facility proposed by the NHA as shown on the Plans complies with the Bylaws--and specifically with Bylaws § 139-11, as a major commercial development, and § 139-23, governing Major Site Plan Review and Traffic Study. The Board issued its Decision on February 7, 2013, and in it imposed various conditions, including ongoing compliance with the Lease, and the establishment of a five member Advisory Board to monitor and oversee the public benefit afforded by the project.

Plaintiffs filed this action pursuant to G.L. c. 40A, § 17. They seek a judgment of the court annulling the Decision, and also declaratory relief pursuant to G.L. c. 240, § 14A. The declarations sought, as set out in Plaintiffs' Second Amended Complaint, are: (1) that the NHA must obtain a special permit for the Shooting Facility as it is a recreational facility (under Bylaws §§ 139-6 and 139-7A), (2) that the NHA must obtain a variance for the Shooting Facility because it lacks adequate frontage on a way, (3) that the NHA is not entitled to an MCD Special Permit under the Bylaws, and (4) that the NHA is in violation of the Lease.

The defendants claim that the Shooting Facility is a "recreational facility" within the meaning of Zoning Bylaw,§ 139-2(A). [Note 2] The Property is located in the LUG-3 zoning district, and Zoning Bylaw § 139 includes (1) the zoning use chart, which requires a special permit to operate "recreational facilities" in the LUG-3 zoning district, and (2) provisions setting out certain uses prohibited in all districts. [Note 3] The defendants also claim that the Shooting Facility is a "major commercial development" within the meaning of Zoning Bylaw § 139-11(B), [Note 4] which requires the grant of a special permit and major site plan review. [Note 5]

On March 8, 2013 Plaintiffs filed an amended complaint, in which, among other changes, they added Edward M. Soffen, as General Partner of the Soffen Family Limited Partnership, and Susan J. Shepherd as plaintiffs. On March 28, 2013, the court held a case management conference during which all parties were represented by counsel. [Note 6] The court in that conference ordered the parties to file a joint report by April 19, 2013 indicating their view(s) on whether or not the NHA was required to obtain site plan approval (or another permit) beyond what the Association obtained, whether or not a deficiency of notice existed as to the hearing held by the Planning Board, whether or not it was in the interest of justice for the court to remand this matter to the Planning Board to address these issues, and the parties' views on mediation of this dispute. The parties in the joint report did not agree to remand or to proceed to mediation.

In the months that followed, the parties devoted their attention to litigation concerning the Shooting Facility project (but not involving its zoning) that was underway in the Superior Court Department, and they did not press forward with this Land Court case while that matter remained active in the other court. On October 1, 2015 this court scheduled a pre-trial conference for November 12, 2015. By joint request of the parties, the pre-trial conference was rescheduled, and then converted to a status conference, which the court held on December 4, 2015. By joint request of the parties during the status conference, discovery was extended to March 31, 2016. The parties were ordered by the close of discovery either to (1) file, serve, and mark for hearing a motion for leave to file motions for summary judgment, or (2) appear for pretrial conference on April 29, 2016.

Plaintiffs filed a motion seeking leave to file a second amended complaint, which was set down for hearing on February 9, 2016, and then allowed over objection. The second amended complaint, filed on February 12, 2016, added the Town of Nantucket as a necessary party under Plaintiffs count for declaration pursuant to G.L. c. 240, § 14A. The court concluded that the Town would be represented by the same counsel who long had represented the Board, and that adding the Town as a defendant would be without prejudice to any party, because Plaintiffs' counts for declaratory relief pursuant to G.L. c. 240, § 14A had been in the case since the filing of the first complaint, even though the case was missing a necessary party as originally pleaded. Plaintiffs were ordered, in keeping with longstanding practice of the court, to arrange for publication of notice under G.L. c. 240, § 14A with the Recorder's Office, to advise any interested parties of their opportunity to seek to intervene in the action.

On February 10, 2016, Susan J. Shepherd was voluntarily dismissed as a plaintiff pursuant to Mass. R. Civ. P. 41 (a) (I) (ii). The NHA filed an answer to Plaintiffs' second amended complaint on February 29, 2016, and the municipal defendants filed their answer on March 16, 2016.

On March 31, 2016, the NHA filed a motion for leave to file a motion for summary judgment, which the plaintiffs opposed; the court heard the motion for leave on April 12, 2016. [Note 7] Following the hearing the court denied the motion without prejudice to Defendants raising at trial the same issues they would have presented in their motion for summary judgment.

On April 19, 2016, the NRA filed motions in limine to preclude the testimony of any additional expert for the Plaintiffs, and to preclude the testimony of Plaintiffs' expert Larry Pater; Plaintiffs opposed both motions. The court held a pretrial conference on April 29, 2016, establishing trial dates. The same day, the court heard the motions in limine. Following hearing, the court allowed the NRA's motion to preclude the testimony of any additional expert for Plaintiffs, [Note 8] but denied the motion to preclude the testimony of Larry Pater. [Note 9]

On November 2, 2016, the court took a view of the property in the presence of counsel and several representatives of the parties. On November 3, 2016, the court held the first day of trial in Nantucket. The court conducted the trial on November 3 and November 4, 2016 in Nantucket, and on November 8 and November 9 in Boston. Counsel for the Town only appeared for the second day of trial on November 4, 2016 and did not otherwise participate. Court reporter Paula Pietrella was present at all times in Nantucket and court reporter Pamela St. Amand was present at all times in Boston, to record and create a transcript of the testimony and proceedings. The court heard testimony from thirteen witnesses: Steven Kohler, Steven Holdgate, Leo C. Asadoorian, Edward Soffen, Kathleen Ross, Penelope Dey, Christopher Carnevale, Daniel Saevitz, Leslie Snell, Brion Koning, Larry Pater, Andrew O. Eshelman, and Erich Thalheimer. Fifty-one exhibits, some in subparts, were introduced into evidence, all as reflected in the transcripts filed. Following the taking of evidence, the trial was suspended.

Counsel were instructed to await the receipt of the trial transcripts, and to file and serve post-trial memoranda, and proposed findings of fact and rulings of law, within thirty days of receipt of the transcripts by the court. The trial transcripts were filed on December 23, 2016, and the court instructed counsel to file all post-trial briefs and memoranda by January 23, 2017. Following a joint motion filed on January 19, 2017, the deadline for submission of the post-trial written filings was extended to March 1, 2017. Both parties timely filed their post-trial submissions. Plaintiff filed an opposition to Defendant NHA's findings of fact on April 6, 2017, which was followed by Defendant NHA's motion to strike the unauthorized pleading on April 7, 2017. [Note 10] On May 16, 2017, the trial resumed for closing arguments in Boston, with Pamela St. Amand again serving as court reporter. Prior to closing arguments, the court heard Defendant NHA on its motion to strike unauthorized pleading. Following argument, the court, in lieu of striking Plaintiffs' filing, granted the NHA, as requested, an opportunity to file an opposition to the findings of fact proposed by Plaintiffs, comparable in scope to the plaintiffs' filing that was the subject of the motion to strike. [Note 11] Upon receipt of the transcript of the closing arguments, and of the filing by NHA, the case was taken under advisement. I now decide the case.


1. Plaintiff Michael Cohen owns property at 36 Wigwam Road, Nantucket, Massachusetts.

2. Plaintiff Edward M. Soffen, as General Partner of The Soffen Family Limited Partnership, owns property at 26 Wigwam Road, Nantucket, Massachusetts.

3. Dr. Soffen first bought property on Wigwam Road in 1999.

4. Dr. Soffen spends approximately four to six weeks a year at his Wigwam Road property between June and September.

5. Plaintiff Andrew O. Eshelman owns property at 9 Wigwam Road, Nantucket, Massachusetts.

6. Mr. Eshelman purchased his Wigwam Road property in the spring of 2006.

7. Mr. Eshelman visits his Wigwam Road property on and off approximately seventy-five days annually between May and late October.

8. Plaintiff Davi-Ellen Chabner, Trustee of Chabner Realty Trust, u/d/t dated June 1, 1999, owns property at 20 Wigwam Road, Nantucket, Massachusetts.

9. None of the plaintiffs own parcels that abut the parcel leased to the NHA by the Town of Nantucket on which the Shooting Facility will be constructed; nor are they abutters to abutters within 300 feet of the Property's boundary line.

10. Wigwam Road is a U-shaped residential street along which there are 28 houses. At its westerly extreme closest to the Shooting Facility, Wigwam Road is about 3,460 feet (0.7 miles) southeast of the site of the Shooting Facility; at its easterly extreme farthest from the Shooting Facility, Wigwam Road is about 5,280 feet (1 mile) southeast of the site of the Shooting Facility.

11. Nobadeer Farm Road is a residential and commercial neighborhood with approximately 80-100 residences. Nobadeer Farm Road is located approximately 0.8 miles northwest of the site of the Shooting Facility.

12. Norwood Street is a residential neighborhood with approximately 45 dwellings (houses and apartments) and a number of stores. Norwood Street is located approximately 1.6 miles west of the site of the Shooting Facility.

13. Madequecham Valley Road is a residential neighborhood with approximately 25 houses. Medequecham Valley Road is located approximately one mile south of the site of the Shooting Facility.

14. The NHA's President, Steven Holdgate ("Holdgate"), and Leo Asadoorian, a land surveyor and the senior project manager of Blackwell & Associates, Inc., a Nantucket surveying firm, met several times with Leslie Snell, the Town of Nantucket Deputy Planner, to discuss the permitting process for the NHA's proposed Shooting Facility, the kind of review by the Town that would be required, and the kind of documents that would be needed.

15. I find Leslie Snell's testimony on these meetings to be accurate.

16. I find Leslie Snell gave a correct and thorough representation of the permitting process to Holdgate and Leo Asadoorian.

17. As specified in the Plans, the approved rifle/pistol range includes the following features:

a. Five shooting lanes of twenty-five, fifty or one hundred yards, with a covered shooting pavilion;

b. Overhead baffles running along the entire length of each shooting lane, designed to prevent bullets from escaping skyward;

c. Twenty-foot tall earthen target berm at each shooting distance;

d. Firing positions depressed four feet below grade, with four-foot high earthen berms rising above grade on each side, effectively creating eight-foot side berms (four feet below ground level and four feet above ground level); and

e. Intermediate walls made of ballistic concrete dividing the twenty-five-yard range from the fifty-yard range and the fifty-yard range from the one-hundred-yard range, extending the full length of each firing position.

18. As specified in the Plans, construction details for the range features, including the target and side berms and overhead baffles, were taken from the National Rifle Association Range Handbook, with some modification for environmental concerns.

19. The NHA submitted roadway improvement, drainage and storm water management plans entitled "Plan and Profile Gravel Improvements" to the Planning Board.

20. The features and structural elements of the Shooting Facility contained in the Plans are constructible. I accept this to be so.

21. Shadbush Road was laid out in 2010 under an Order of Layout by the Nantucket County Commissioners dated May 5, 2010, and recorded in the Nantucket Registry of Deeds in Book 1229, Page 124 on May 6, 2010. A plan named "Roadway Layout Plan of Industry Road and Shadbush Road" and dated April 30, 2010, was recorded in the Nantucket Registry of Deeds as Plan No. 2010-16 (the "Roadway Plan").

22. On May 5, 2010, the Planning Board endorsed the Roadway Plan as "approval under the Subdivision Control Law not required" pursuant to G.L. c. 41, §§ 81I, 81P.

23. No timely appeal was taken from the Planning Board's endorsement of the Roadway Plan.

24. Shadbush Road running easterly off Industry Road as depicted on the Roadway Plan is a dead-end street [Note 12] that terminates with a turning circle or cul-de-sac.

25. The NHA has not yet constructed fully the approved roadway improvements to Shadbush Road.

26. The Roadway Plan shows that if Shadbush Road is constructed as proposed in accordance with the Decision, the Property will have 188.5 feet of lineal frontage [Note 13] on the proposed turning circle at the end of Shadbush Road. [Note 14]

27. I find that the roadway improvements to Shadbush Road contained in the approved plans, including the improvements with respect to drainage and storm water management, are constructible.

28. The Nantucket Police Department (the "Police Department") has used the already­existing Police Practice Range (the "Practice Range") located not far from the project site, off New South Road, just inside the Nantucket Memorial Airport property, for approximately fifteen years.

29. The Police Department employs thirty-six full-time, year-round police officers and four year-round reservists. During the peak summer season from June through August, the Police Department employs twelve reservists.

30. The Police Department intends to discontinue the use of the Practice Range and move its training activities to the NHA's Shooting Facility once it is constructed.

31. In addition to the Police Department, the United States Coast Guard and the Nantucket Memorial Airport security and emergency response personnel currently use the Practice Range.

32. The NHA's Lease requires the establishment of an Advisory Board to monitor and oversee the operation of the Shooting Facility. The Advisory Board must include at least one member of each of: (a) the Tom Nevers Civic Association (an association of residents including Wigwam residents); (b) the Wigwam Homeowners Association; (c) the Nantucket Conservation Foundation; (d) the Board of Selectmen; and (e) the NHA. The Lease provides that "[t]he Advisory Board will present quarterly reports to the Town to ensure appropriate safety measures are in place in accordance with an operational safety plan, to document the extent and nature of written noise complaints received by [the NHA], to evaluate the effectiveness of noise mitigation strategies, and to evaluate whether the hours of operation are appropriate and that the facility is maintained in good order." The Lease further provides that the Town may amend or terminate the Lease if it is found not to be serving the public interest.

I. Standing.

Plaintiffs appeal the decision of the Planning Board pursuant to G.L. c. 40A, § 17. Under that statute, "only a 'person aggrieved' has standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012), quoting G.L. c. 40A, § 17. Plaintiffs are aggrieved if they "suffer some infringement of legal rights," and the term "person aggrieved" should not be narrowly construed. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Marotta v. Board of Appeals of Revere, 336 Mass. 199 ,204 (1957). "Aggrievement requires a showing of more than minimal or slightly appreciable harm" and "the right or interest asserted by a plaintiff claiming aggrievement must be one that G.L. c. 40A is intended to protect." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). If a right is not a "specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect," then Plaintiffs cannot obtain standing based on the assertion of that right. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006).

Non-abutting plaintiffs, lacking a statutory presumption of their aggrievement, are required to provide "credible evidence to substantiate claims of injury to their legal rights." Marashlian, 421 Mass at 723. The evidence must both "provide specific factual support for each of the claims of particularized injury the plaintiff has made" and "be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). "[T]he plaintiff[s] must establish by direct facts and not by speculative personal opinion that [their] injury is special and different from the concerns of the rest of the community." Standerwick, 447 Mass. at 33. However, to show their aggrievement, the plaintiffs do not have "to persuade the judge that their claims of particularized injury are, more likely than not, true." Id. at 442.

Claims of aggrievement concerning noise and diminution in property value have been recognized by Massachusetts courts as sufficient to confer standing if set out as protected interests in the Zoning Bylaw. See Standerwick, 477 Mass. at 30 ("standing to challenge a zoning decision is conferred only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect"); Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 , 912 (2003) (harm from increased noise and artificial light sufficient to confer standing to challenge variance).

It is not necessary to address whether each individual plaintiff has standing because "the fact that only one of the plaintiffs was an aggrieved person is sufficient to permit the appeal from the board's decision." Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 n.7 (1986). "[I]t is only necessary to determine whether any one plaintiff is aggrieved in order to determine the standing issue." Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 620-621 (1993).

The Zoning Bylaw clarifies which legal rights the plaintiffs are allowed to invoke when bringing their claims to show their aggrievement. The purpose of the Zoning Bylaw of the Town is to "promote the health, safety, convenience, morals and general welfare of its inhabitants" by regulating the use and construction of buildings and structures in the Town of Nantucket. See Zoning Bylaw § 139-1. The Zoning Bylaw requires the Planning Board to find that the buildings and structures will not be "injurious, obnoxious, offensive, dangerous or a nuisance to the community or to the neighborhood through noise vibration ...." Zoning Bylaw § 139-7(B)(4).

Plaintiffs assert standing based on noise and diminution in value of their property. I find, after considering all the evidence, that Plaintiffs have standing based on noise. I will address each basis for standing in tum, assessing whether the harm claimed is an interest protected under the Zoning Act and within the interests protected by the municipal Zoning Bylaw, and, if so, whether Plaintiffs introduced credible and non-speculative evidence which demonstrates that their harm is more than minimal, particular to them, and not merely in the nature of a general harm to the community.

A. Plaintiffs have Standing Based on Noise.

Plaintiffs claim that the Shooting Facility will create a noise nuisance, in violation of § 139-7 of the Zoning Bylaw, that would interfere with the use and enjoyment of their properties. The Zoning Bylaw requires that no use of a building or structure create a nuisance through noise vibrations. Zoning Bylaw § 139-7(B)(4). Therefore, an increase in percussive noise visited on Plaintiffs' properties that is generated by the NHA or their guests on the Property may in proper cases constitute a valid basis for Plaintiffs to obtain standing under G.L. c. 40A, §17, given this Zoning Bylaw provision.

The court must analyze the Planning Board's determination that the noise will not create a nuisance '"in terms of the nature and effect of the condition itself and in light of the statutory concerns relevant to the grant' of a[n MCD] special permit." Aiello v. Planning Bd. of Braintree, 91 Mass. App. Ct. 354 , 363-364 (2017) (quoting Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass. App. Ct. 710 , 714-715 (1981)). The fact, stressed by the NHA, that there already is noise emanating from the same general direction as the Property, including some gunfire noise, does not by itself refute Plaintiffs' claims of harm. See Aiello, 91 Mass. App. Ct. at footnote 18. Plaintiffs introduced expert testimony to show how noise from the proposed Shooting Facility would reach their properties. Expert witnesses Brion Koning ("Koning") and Dr. Larry Pater ("Dr. Pater") testified that the proper metric with which to measure community annoyance, and, therefore, nuisance, is Peak Flat. They testified that Peak Flat is the most appropriate metric because it accurately captures the true peak of noise characterized as a sudden impulsive sound with a rapid onset and rapid decay, such as gunfire. These experts disagreed with the methods used by the defendants' expert witness, based on that expert witness' use of an A-weighted Lmax "slow" metric, which averages sound pressures over a one second time constant. Koning and Dr. Pater testified that measuring the same event with both meters, one measuring with Lmax "slow," and one measuring Peak Flat, would generate a difference in meter readings of approximately 40-45 decibels (dB).

Koning testified that he used the Massachusetts Department of Environmental Protection's ("Mass DEP") guidelines on noise as promulgated under G..L. c. 11, § 142A-M and in 310 CMR 7.00. According to Koning, these comparative criteria consider noise to be air pollution when the noise exceeds the ambient sound level by more than 10dB. During live fire tests in 2008, Koning measured the ambient sound level along Wigwam Road as falling between 35-40 dB Lmax "slow" and measured the gunfire noise along Wigwam Road as falling between 48-52 dB Lmax "slow." He thus took the position that the gunfire noise created in some respects a difference of more than 10 dB and, drew from that the conclusion that gunfire on the Property would qualify as a noise nuisance, based on the regulations and guidelines promulgated by Mass DEP. However, Koning's live fire test had serious flaws, enough that all the experts, including he himself, discounted it as an accurate test for measuring noise levels. I find this test unpersuasive. Moreover, I do not accept that exceeding the Mass DEP metric proves with any certainty that the applicable noise standard, that established under the Zoning Bylaw, has been violated. I therefore do not find that the results of Koning's test, or the opinions he offered, are sufficient to confer standing on any of the Plaintiffs.

Dr. Pater also testified that the Shooting Facility will have an unacceptable noise impact on the residents of the Wigwam neighborhood. He did so based on results from the modeling tool he helped develop for the United States Army, the Small Arms Range Noise Assessment Model ("SARNAM"). SARNAM technology is a tool recognized by the United States Army, which can be used to measure effects of small arms gunfire noise from shooting ranges on the surrounding communities. It is a computer modeling technique, predicting noise outcomes from inputted variables, and does not rely upon direct field measurements generated by live fire testing at the subject site under evaluation. Dr. Pater testified that the results from the SARNAM system show that the single event noise levels emanating from the proposed Shooting Facility will be loudest for homes in the Wigwam Road neighborhood, as compared to other homes in other locations in the area. I find that Dr. Pater's model, while flawed (as I discuss below), nevertheless shows that there will be a difference in noise levels after the Shooting Facility is built, and that the Wigwam Road residents will be to some degree affected by it. I find that his study is sound enough to confer standing, at a minimum.

Plaintiffs and their neighbors testified that the noise from the Shooting Facility will prevent them from enjoying and utilizing their homes and back yards. They point to purportedly illegal shooting they say currently takes place, in the general area, that already affects them. Based on the NHA's predictions, the Shooting Facility will result in an increase of shooters above the current level. I generally accept this to be so, concluding that the increase in the number of shooters and shots fired if the Shooting Facility becomes operational will not be insubstantial. I accept that the plaintiffs already deal with to some degree the noise of existing gunfire, and that the additional noise the Shooting Facility will produce will exacerbate the current situation, and make it more difficult for the plaintiffs to be comfortable on their own properties.

Additionally, Koning testified that the Wigwam residents will experience an impact that is particularized, compared to others in the larger surrounding area, because of the design of many of the Wigwam homes. I accept this opinion generally. A number of the homes along Wigwam are "upside down" homes with their living areas (kitchen, living room, dining room) on the second floor. The residents spend more time on the second floor of their homes during daylight hours when shooting occurs. According to Koning, this home design exposes the Wigwam residents to a more direct and unimpeded path for gunshot noise traveling from the Shooting Facility to their residences. As a result, according to Koning, those occupying homes on Wigwam will experience a louder noise at this higher elevation than the noise someone would experience on ground level, where the measurements for the live fire tests occurred. I generally accept this as true and I find that Plaintiffs would face a harm that in this respect is particularized enough to support a claim of aggrievement.

Defendants claim that Plaintiffs do not have standing based on noise because the Plaintiffs did not show that the Shooting Facility will injure their private legal interests, did not establish that their private legal interests are interests that the Massachusetts Zoning Act or the Zoning Bylaw were intended to protect, and did not provide direct facts to show that their protected interest was "special and different from the concerns of the rest of the community." Standerwick, 447 Mass. at 33. The defendants' expert Eric Thalheimer ("Thalheimer") testified that the Plaintiffs will not be affected uniquely, because they will be exposed to virtually the same sound phenomena as everyone else in the community. While I accept that this is true in part, I do not find it to be dispositive. That there are other noises audible in much of this part of the Island-shooting currently engaged in by hunters, planes traveling overhead, ATV engines coming from dirt trails, etc., does not take away the right to be heard as to excessive noise from firing taking place at the new Shooting Facility. And simply the fact that others in the community will hear the noise from the new range, does not automatically doom Plaintiffs' standing. I do not accept that the decisional law on this point requires a court to deny standing to a group of plaintiffs challenging a permit, simply because the offensive activity regulated by the local zoning law (in this case percussive noise) is so forceful and impactful to be felt by a larger number of residents than just the plaintiffs themselves. If those using the NHA range were going to be firing howitzers instead of guns, the Plaintiffs still could have standing, even though most everyone on the island would be subject to the resulting noise to some degree.

The defendants also claim that the Plaintiffs have been exposed to gunfire noise for as long as they have owned their properties, so the character of the neighborhood will not change. I do not accept this as true. I find that the various Plaintiffs purchased their properties on Wigwam Road in the hope that they would have a peaceful, quiet retreat near the beach, where they could relax, and that the sound of gunfire, while already to some extent present, is not art integral part of the character of the neighborhood in which they have their home. Thalheimer followed the methodology prescribed by the Nantucket Noise Bylaw [Note 15] (the "Noise Bylaw"), part of the Town's general bylaws, during his tests, and concluded that the sound of gunfire produced from the use of the Shooting Facility as heard by the residents of Wigwam Road will comply with the Noise Bylaw. [Note 16] While I accept this to be so, I do not find the Noise Bylaw regulations to be binding in any conclusive way on the Board or on the court, in determining whether for zoning purposes a noise nuisance exists. [Note 17] I find that Thalheimer's study, and in particular his conclusion that the operation of the Shooting Facility will not produce a violation of the Noise Bylaw at Wigwam Road properties, does not somehow automatically take away the standing, based on noise, which the Plaintiffs have been able to establish.

Because the term "person aggrieved" should not be narrowly construed, the court must look at the project as a whole and not focus solely on any change from the existing condition to the potential new condition. See Marashlian, 421 Mass. at 722; Aiello, 91 Mass. App. Ct. at 363. Plaintiffs' experts were able to show that enough noise will be created by this new project to support Plaintiffs' standing and get the court to take up the merits of the case. Defendants' expert was unable to prove definitively that Plaintiffs' experts' analysis of the potential noise levels from the proposed Shooting Facility was so deeply flawed as to be disregarded and given no weight. For these reasons, I find that Plaintiffs have standing to appeal on the basis of noise.

B. Plaintiffs do not have Standing Based on Diminution in Property Value.

To support a plaintiffs standing in a G.L. c. 40A appeal, a claim of diminution in value must be tethered to some private legal or property interest which is intended to be protected by the applicable zoning scheme. Standerwick, 447 Mass. at 31-32. See also Kenner, 459 Mass. at 123 ("Diminution in the value of real estate is a sufficient basis for standing only where it is 'derivative of or related to cognizable interests protected by the applicable zoning scheme."') (quoting Standerwick, 477 Mass. at 31-32). "Zoning legislation 'is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live."' Kenner, 459 Mass. at 123 (quoting Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 503-504 (1940)). The Plaintiffs claim that they have standing based on diminution in value by tethering the loss of property value they say will take place to the noise impact interest protected by the Zoning Bylaw. The plaintiffs submitted no expert testimony related to diminution in value, and only offered their personal opinions that the Shooting Facility would have a negative impact on the values of their properties. While lay owners do have the opportunity to offer testimony as to the values of their own properties, they do not, as non-experts, have the ability to prognosticate in a quantitatively meaningful way the diminution that will result from a given future activity-here, the opening of the Shooting Facility. I found the Plaintiffs' lay testimony on valuation, both individually and in the aggregate, to be unsatisfying and unconvincing. I discount and decline to give any weight to their anecdotal evidence, including regarding selected instances of prospective transactions falling apart, ostensibly in response to concerns about gunfire. In addition, protection against diminution in value is not a protected interest specifically under the Zoning Bylaw, see Standerwick, 477 Mass. at 31-32. Plaintiffs were not able to prove, based on any proper and reliable prediction of loss of property values that would flow from a violation of a private legal or property right--because their lay evidence was weak, and they provided no expert testimony on the subject. And diminution in value is not, in any event, by itself a protected interest under the Zoning Bylaw.

For these reasons, I find that Plaintiffs do not have standing to appeal on the basis of diminution in property value. [Note 18]

II. Review of Planning Board Decision

Having concluded that the noise impacts of the proposed Shooting Facility entitle at least some of these Plaintiffs to standing, I now turn to consider the merits of the Board's Decision. As the decisional law makes clear, of course, establishment of aggrievement does not mean that a plaintiff will prevail on the merits of his or her challenge to the permit, which must be assessed separately by the court.

A. Standard of Review.

In reviewing a special permit decision of a local permit granting authority, the court applies a "combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of New York. Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954)). The court reviews the evidence presented to the court, and makes findings of fact de novo, without deference to the Board's findings. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see also Wendy's Old Fashioned Hamburgers, 454 Mass. at 381 ("a judge is to give 'no evidentiary weight' to the board's factual findings"). At the same time, the judge must defer to "the reasonable construction that a [local] board ... gives to the by-laws it is charged with implementing." Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 29 (2002). The review is limited because of the requirement to defer to the judgment of the Planning Board due to its "home grown knowledge about the history and purpose of its town's zoning by-law." Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). The Supreme Judicial Court has decided that courts need to give "substantial deference to the construction placed on a statute or an ordinance by the agency charged with its administration," in this case the Planning Board, interpreting the Zoning Bylaw. Manning v. Boston Redevelopment Auth., 400 Mass. 444 , 453 (1987). Furthermore, "it is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling." Subaru of New England, Inc., v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 488 (1979), quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 , 821 (1973).

The combination of these principles means that a challenged board decision can only be overturned judicially if "it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). To determine if the Planning Board's decision was based on a legally untenable ground, the court looks to the Zoning Bylaw to determine the intention of the Town Meeting, the local legislative body, and the meaning of the local enactment, and then compares that intention and meaning with the Planning Board's decision to make sure that the decision is consistent with the local bylaw, properly construed. See Tambone v. Board of Appeal of Stoneham, 348 Mass. 359 (1965); D'Ambra v. Zoning Bd. of Appeal of Attleboro, 324 Mass. 61 (1949).

As an initial matter, the court may consider whether the Board conducted the deliberative process in a fair and proper manner. To determine if a decision is "unreasonable, whimsical, capricious or arbitrary," the court may look at both the evidence presented to the board by the applicant and the evidence given by the, board in its decision. See Slater v. Board of Appeals of Brookline, 350 Mass. 70 (1966) (deciding that the board did not adequately consider the plaintiffs evidence as to the necessity for off-street parking before making its determination); Mahoney v. Board of Appeals of Winchester, 344 Mass. 958 (1962) (holding that the board, in its denial of the project, gave "no substantial evidence that increased traffic ... would be consequential"). The decision can be overturned if either the board did not properly consider the applicant's evidence when making its decision, or if the board did not provide sufficient reasoning for its decision. See Salah v. Board of Appeals of Canton, 2 Mass. App. Ct. 488 (1974) (holding that the board incorrectly interpreted the applicant's evidence and used the incorrect interpretation as the basis for its decision); Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715 (1974) (concluding that remand to the board was necessary because the board did not fully explain the reasons for its decision). But this threshold exercise is calculated to have the court determine whether the Board, as a matter of procedural fairness, gave the proper consideration to the facts put in front of it. The determination of the facts, which are applied by the court to determine the propriety of the result reached by the board, is for the court, de nova, on the evidence properly before the court and weighed by it. Here, it is apparent that the Planning Board considered adequately the competing facts and viewpoints of the Shooting Facility's proponents and opponents, and gave a more than ample explanation of the reasons for its Decision. I conclude that no remand is in order to have the Board conduct further hearings or revise its Decision.

Additionally, while the judge can order a modification of a decision of the board under G.L. c. 40A, § 17, "modifications and changes should be analyzed and approved by the Board, which is better equipped than a court to consider such matters." Board of Appeals of Dedham v. Corporation Tifereth Israel, 7 Mass. App. Ct. 876 , 876 (1979). Nevertheless, should it be clear that remanding the matter to the board would be unproductive, [Note 19] then G.L. c. 40A, § 17 allows a court to "make such other decree as justice and equity may require." Id. There are some limits as to how far a court can modify a decision, however, and Massachusetts courts have consistently decided that judges are only allowed to make "a decree according to law" and are not allowed to "invade the whole area of administrative discretion." Pendergast, 331 Mass. at 588; Board of Appeals of Dedham v. Corporation Tifereth Israel, 7 Mass. App. Ct. 876 , 876(1979).

B. The Shooting Facility does not constitute a Noise Nuisance.

Determining that it is appropriate to do so, and that no remand to the Board is indicated, after finding the essential facts following trial, I now reach the merits of the Decision the Planning Board rendered.

The Zoning Bylaw prohibits the use of any structure which is "injurious, obnoxious, offensive, dangerous or a nuisance to the community or to the neighborhood through noise vibration..." § 139-7(B)(4). In its decision, the Planning Board found that the "proposal complie[d] with the local bylaws." The Board stated that it rendered its decision after reviewing that Zoning Bylaw section, and, indeed, the entire Bylaw. I accept this to be true and I find that the Planning Board properly considered all the appropriate bylaws. The Defendants argued that the measurement system provided in the Noise Bylaw was controlling, and that as long as the projected decibel level fell within the acceptable limit determined according to the general bylaw, then the Zoning Bylaw also was satisfied. As the court explained during a motion hearing on April 29, 2016, [Note 20] (a conclusion I adhere to following trial) this is not entirely correct. Neither the Zoning Bylaw nor the Noise Bylaw say that the Noise Bylaw is the only acceptable methodology for measuring noise in Nantucket or determining whether or not a noise is a nuisance in the context of zoning uses and permitting. The Plaintiffs were free to introduce expert testimony using methodology different than that set forth in the Noise Bylaw. However, that did not mean that the Plaintiffs' noise tests would not be subject to the same scrutiny as the Defendants' noise tests, or that the Defendants' noise tests would automatically be ignored because they followed the Noise Bylaw. The Plaintiffs' expert, Dr. Pater, was required to present acceptable evidence that his method for measuring noise was accurate and persuasive, and best proved up the essential facts about the Shooting Facility's noise impacts. I am not convinced that he did so. The Defendants' expert, Thalheimer, pointed out several flaws with Dr. Pater's study, which called into question the reliability of Pater's results, two of which are particularly relevant.

First, Dr. Pater's model assumed that the receptor sites at Wigwam Road were directly downwind from the Shooting Facility. He agreed that noise levels are louder downwind and quieter upwind. The Defendants countered this important assumption through the testimony of Holdgate. Holdgate is a licensed pilot who frequently flies in and out of the Nantucket Memorial Airport next to the proposed facility; he testified that the Shooting Facility will be upwind from the Wigwam Road neighborhood during the summer months when the Plaintiffs spend the most time at their properties. I accept Holdgate's testimony to be true, and I find that modeling with only a downwind assumption calls into question the accuracy of Dr. Pater's study.

Second, Dr. Pater did not put into his modeling any criteria about the substantial side berms that are a key feature of the Shooting Facility Plans. He gave testimony that he consciously made this decision because the berms were more than 1,000 feet from Wigwam Road and they were at a bit of a distance from the shooters' positions. He stated that both of these factors meant that the berms would not be effective noise mitigators for the residents of Wigwam Road. This testimony was countered, however, by Thalheimer, who testified that the berms would have a significant noise reduction for noise heading toward Wigwam Road because they will be built close to the source of the noise. Thalheimer also rejected the proposition that berms are not effective beyond 1,000 feet, and I find that Thalheimer was persuasive in taking this position. Dr. Pater was able to offer no additional testimony that his opinions on this pivotal question were correct; he simply did not include the berms in his model and was unable to show they would have no mitigative effects. I do not find Dr. Pater's assessment of the effectiveness of berms over a long distance to be accurate. I find that these two significant flaws combined to undermine seriously Dr. Pater's study. I also am mindful that the NHA's expert conducted actual testing in the field and used those results to buttress his opinions, something Dr. Pater failed to do. I decline to give any meaningful weight to the Pater analysis, and this prevents me from finding that the plaintiffs have carried their burden of proof in establishing that the Shooting Facility will be a noise nuisance within the criteria of the local zoning law.

Thalheimer's final live fire test, while not perfect, did not have the same shortfalls as Dr. Pater's study. I only consider his final test, because it conformed to the current specifications for the Shooting Facility and included additional firearms. Thalheimer followed generally the specifications and methodology of the Noise Bylaw which, while not conclusive, adds to the persuasiveness of his opinions. I also conclude that, while the general Noise Bylaw is not controlling in this zoning case, it is indicative of the Town Meeting's overall intention in guarding against certain deleterious noise in the zoning arena as well. The Noise Bylaw studies were helpful to the court and add to its conviction that the activities likely to take place at the Shooting Facility will not be so impactful as to run afoul of the provisions of § 139-7(B)(4). I would reach the same conclusion even without taking into account the guidance of the Noise Bylaw, but it adds to the weight of the evidence Thalheimer gave.

Thalheimer took measurements on Wigwam Road as well as at various other sites around the community. The test results showed that the decibel level at Wigwam Road produced by the gunshot noise at the site of the proposed Shooting Facility was lower than the Noise Bylaw requirements. I accept this generally to be so. I conclude that while there will inevitably be sound as the result of gunfire outdoors, in this particular circumstance, the sound will not rise to the level of nuisance that would render the Shooting Facility prohibited under the Zoning Bylaw. [Note 21]

The court must defer to the Planning Board's interpretation of the Zoning Bylaw, unless no rational view of the facts found by the court would sustain the local board's decision making. The Planning Board was tasked with determining whether the potential noise vibration from the gunfire would be "injurious, obnoxious, offensive, dangerous or a nuisance." § 139-7(B)(4). Through the course of their extensive special permit and site plan review, the members of the Planning Board determined that the gunfire noise would not violate the Zoning Bylaw. I do not find that the noise generated will cause that manner of nuisance which is banned under the Zoning Bylaw, given the facts as I find them to be after trial. I conclude that this was not a decision that was unsupported by the facts, nor one which was legally untenable.

The Town of Nantucket Deputy Planner testified that the special permit granted required the highest level of review in terms of the requirements that must be met under the Zoning Bylaw, and I accept that this is so. After performing all the necessary steps to approve an MCD Special Permit, the Planning Board found there would be no violation of the Zoning Bylaw. As already said, the court only may disturb a board's decision if, after determining the facts, the court finds that the decision was "unreasonable, whimsical, capricious or arbitrary," or contrary to law, and that assuredly is not the situation here. Wendy's Old Fashioned Hamburgers, 454 Mass. at 382. Based on the evidence presented to the court, and the facts I have found, I do not find that the Decision is "unreasonable, whimsical, capricious or arbitrary" or contrary to law, and, consequently, I conclude that the Planning Board's Decision is not to be modified or set aside on these grounds.

Finally, the plaintiffs argue that even if the noise were not so loud as to violate the Bylaws when heard on their properties, the permit still should be overturned because the property abutting the Shooting Facility would be subjected to a noise nuisance. The abutting property, which lies in between the Shooting Facility and Wigwam Road, is a community preservation area-wild open space on which there are no residences. No one will reside or occupy any dwelling there. Plaintiffs are attempting to raise a harm that no one will sustain. It is not logical to interpret the Zoning Bylaw as meaning that no proposed use ever can create a noise that, just over the project's property line, might rise to the level of a nuisance, even when there is no one affected by the noise. This cuts against the idea of noise being a nuisance -- to violate the Bylaws, the noise must be injurious, obnoxious, offensive, dangerous or a nuisance to someone, not abstractly, in the ether. When it comes to the open space directly alongside the Shooting Facility, which lies an appreciable distance from the homes of the Plaintiffs, the Plaintiffs' objections do not go to their own particularized harm, but rather to a more generalized concern. In this, they are purporting to challenge the Decision for the public at large, not their own interests, something the zoning law does not authorize. Moreover, on the evidence I heard, I did not find anything persuasive to prove to me that the sounds of gunfire would constitute a forbidden nuisance even in the open space near the proposed project.

Based on the facts that I have found concerning the noise that the Shooting Facility will generate, I conclude that the Decision of the Planning Board reflects a fair and thorough weighing of the competing interests involved, and that the Board reached a balance that the facts and law support. The Board, as the local decision maker, gets to make the call, within the band of discretion the law authorizes, whether uses that are allowed only by special permit get built or not. The need for a modern shooting range on Nantucket was well-proved by the evidence. It is inevitable that an outdoor shooting facility, even one well-designed and operated, will generate gunfire sounds. On the facts that I have found, I cannot and do not say that the Board came to a conclusion that was unsupported or legally flawed. The Board properly weighed the impact that the sounds emanating from the Shooting Facility will have on surrounding homes and other land uses, and came to the well-supported conclusion that the benefits to the Town and its residents from allowing the Shooting Facility, considered against the impacts on the Plaintiffs and others, tipped the balance in favor of granting the approval. The question is not whether the court acting in the first instance would have approved the permit and granted the zoning approvals sought by NHA. That is not the court's role. The court only finds the facts, and then applies the zoning law to determine if the approval was lawfully conferred.

I do not accept that the Board was required to insist that the project be redesigned as an indoor shooting range. No doubt, putting the firing indoors would have reduced materially the gunfire noise that would reach the properties of the Plaintiffs and others. The evidence shows that there would have been significant costs, financial and otherwise, involved in building and operating an indoor range. The NHA was not required to apply for an indoor range, if the Board (as it did here) concluded that the legal requirements of the zoning law could be met by an open air facility.

In reaching the balance that it did, the Planning Board also properly gave weight to the terms of the Lease. The use by the NHA of the Shooting Facility is, as the Decision reflects, to take place under the governing provisions of the Lease, which deal, among many other things, with the days, hours and frequency of the shooting that will take place. The Board correctly understood, in fashioning its Decision, that the Lease had been structured to limit and control the hours of operation. As the Lease now stands, there will be greatly reduced hours during the July and August peak season, and significant limitations on the days and hours during the "shoulder season"--from April through June and during September and October. The least limited range hours fall during the late fall and winter months, when visits to Nantucket by non-residents, and vacation use and rentals, are at a minimum, and when the weather keeps windows closed and many people inside.

I also find it important that the Board relied, in approving the project, on the provisions of the Lease which allow the Advisory Board to restrict even further the extent of firing activities at the Shooting Facility, should experience, once the range is active, dictate that its operation is more intrusive than forecast. The Advisory Board, on which serve resident representatives, including from the areas in which the Plaintiffs' properties are located, has the power to oversee and monitor the Shooting Facility, and to make significant changes to the frequency of its use. The Town even has the right to modify or terminate the Lease, if indicated. Given that the Planning Board had before it a permit request for a project yet to be built and operated, the Board was able to draw confidence, in approving the application, from these provisions of the Lease, which exerted ongoing review and control over the operation of the Shooting Facility.

For these reasons, the Board's Decision was not legally erroneous on the ground that the Board declined to determine the Shooting Facility would produce unlawful noise on the nearby open space property.

C. The NHA did not require a "Recreational Use" Special Permit in addition to the MCD Special Permit (G.L. c. 240, § 14A).

Plaintiffs seek a declaration that, to proceed with the project and build and operate the Shooting Facility, the NHA must separately and distinctly apply for and obtain two approvals: a special permit for a recreational facility as well as a major site plan review. I find and rule, however, that this claim is refuted by the Zoning Bylaw. The Shooting Facility is located in a LUG-3 district, and qualifies as a "recreational facility." The Use Chart in the Zoning Bylaw requires that recreational facilities obtain a special permit, which would be issued by the Zoning Board of Appeals--unless another provision of the Zoning Bylaw calls for the permit to come from the Planning Board. That is the situation here. The Shooting Facility also is a major commercial development, which falls under the purview of the Planning Board. See Zoning Bylaw § 139-11. The Zoning Bylaw specifies that "[t]he Planning Board shall be the sole special permit granting authority for major commercial developments" and "[i]n instances where all or a portion of a major commercial development, in addition to requiring a special permit as a major commercial development, also requires a special permit pursuant to any provisions of this chapter other than this § 139-11, the Planning Board shall serve as the special permit granting authority for such relief, which relief may be a matter for consideration concurrent with its review of the major commercial development application." Zoning Bylaw§ 139-11(D). This Zoning Bylaw provision sets out that the Planning Board is responsible for considering and, if appropriate, granting the recreational facility special permit required by the Use Chart. I find and rule that the Planning Board is the appropriate board to consider all special permits required for this project, based on these Zoning Bylaw provisions.

I find support for this conclusion in the Deputy Planner's testimony. The Deputy Planner testified that consistently in the Town the provisions of the Bylaws covering the MCD special permit have been interpreted by the boards and officials charged with interpreting them as putting in place an umbrella permit-one that addresses before a single board all the requirements of the Bylaws which otherwise would be needed to be satisfied in the issuance of a recreational facility special permit. I accept that this interpretation is consistent with the language of the Bylaws, and a more than plausible construction of those provisions by the local boards and officials. As a result, there was no need for the NRA to apply for both permits individually. This interpretation, which I adopt, is a sensible one. The Zoning Bylaw is not somehow flawed when it sets up this streamlined process, especially where the MCD Special Permit requires such a thorough review. The opposite interpretation, for which the Plaintiffs advocate, would produce duplicative, inefficient and wasteful proceedings.

Because the Shooting Facility constitutes a major commercial development, the NHA applied for a MCD Special Permit, which required the grant of a special permit and successful major site plan review by the Planning Board. See Zoning Bylaw § 139-1l(A). It is true that the NHA did not submit a separate application for major site plan review; NHA only submitted one application for the MCD Special Permit. The Deputy Planner testified, and I accept, that the NHA did not need to apply separately for major site plan review, because such an application does not exist in the Town and is not required by the local zoning law as it is consistently interpreted and applied by the local boards and officials. This disposes of Plaintiffs' argument that Zoning Bylaw § 139-23(H) requires a separate application for major site plan review, because the Zoning Bylaw requires applicants to submit an application form "prescribed by the review authority." The Planning Board, as the review authority, prescribed no separate application for major site plan review; none thus was necessary under the Zoning Bylaw. Furthermore, on a more substantive analysis, the MCD Special Permit review incorporates all of the requirements of the major site plan review. The Zoning Bylaw shows, and the Deputy Planner credibly testified, that the MCD special permit has the strictest requirements of all the special permits which may be issued in Nantucket. Again, the Bylaws and the practice in the Town appropriately provide a way to accomplish a full level of review without the delay and repetition that would come with multiple overlapping applications, hearings, and approvals. I conclude that the Zoning Bylaw, and the consistent municipal interpretation and application of it laid out in the Deputy Planner's testimony, put to rest the Plaintiffs' arguments that any other individual zoning application to, or approval or relief from, the Planning Board was necessary.

For these reasons, I find the NHA did not need to obtain any additional special permits or to apply separately for major site plan review. I also find that the public notice for the hearings the Planning Board did conduct was adequate, as the notice included all the required information about the only application the NHA needed to submit, the MCD Special Permit application. The NHA could not have been required to give notice for a permit or review for which, correctly, it did not apply.

D. Shadbush Road qualifies for a reduction in frontage required under Zoning Bylaw § 139-16.

The plaintiffs' final contention is that the NHA did not obtain a necessary zoning variance from the Zoning Board of Appeals. Plaintiffs say that to build and operate the Shooting Facility, NHA requires a variance to address what Plaintiffs contend is an insufficiency in the minimum frontage of the Property needed under Zoning Bylaw§ 139-16. But that is not correct. That provision, it is true, specifies 200 feet as the minimum frontage for properties in LUG-3 districts. See Zoning Bylaw § 139-l6(A). However, the next section modifies this more general requirement, and controls here. It states that "[f]rontage may be reduced by up to 30% for lots fronting on the turning circle of a dead-end street." § 139-16(B). The Property's frontage, which does run along the turning circle where Shadbush Road terminates at the Property, measures 188.5 feet, and so supplies well more than the 140 feet that in this case are required. The Planning Board was justified, on these facts, in making that determination. The Board could not, given these provisions of the Bylaws, have found that the project was planned for a site with inadequate frontage.

It is of no legal significance that Shadbush Road has not been constructed yet, where the Roadway Plan indicates plainly that the Property's frontage along the road will be 188.5 feet long. At this length, the Property adequately satisfies the reduced frontage requirement. And the construction of the roadway, with that cul de sac, will need to take place before the Shooting Facility receives permission to open and operate. It is true that the Planning Board did not specify in the Decision the date by when Shadbush Road should be built. Nevertheless, I find it implicit in the Planning Board's Decision that the NHA cannot move ahead with completing construction and opening the Shooting Facility, without first constructing Shadbush Road. I also find it implicit in the Decision that the NHA is required to build Shadbush Road according to the dimensions specified on the Roadway Plan, including with frontage that is 188.5 feet long along a turning circle, satisfying the frontage requirements of the Zoning Bylaw.

For these reasons, I find and rule the NHA did not and does not need to obtain a separate variance for the Property's frontage.

The Decision of the Planning Board to grant the special permit is not "unreasonable, whimsical, capricious or arbitrary," nor is it based on a legally untenable ground. The Planning Board did not exceed its authority in granting the special permit. For these reasons, the Planning Board's Decision granting the special permit allowing the construction of the Shooting Facility will be upheld. And the judgment the court enters will include declaration, consistent with this decision, on the adequacy of the relief sought and obtained by the NHA for the Shooting Facility project.

Judgment accordingly.


[Note 1] The Property is that shown as Lot 3 on a plan of land entitled "Subdivision Plan of Land in Nantucket MA, Prepared for Town of Nantucket, l" = 120', September 3, 2009" by Blackwell & Associates, Inc. which plan was recorded with the Nantucket County Registry of Deeds on November 3, 2009 as Plan No. 2009-44.

[Note 2] ZoningBylaw § 139-2(A) defines "recreational facility" as: "Golf courses, tennis, paddle and racquet courts, bowling alleys, fitness centers, or the like, including any uses ancillary to the recreational facility."

[Note 3] ZoningBylaw Section 139-7(B) provides: "B. Prohibited uses in all districts. Notwithstanding any other provisions of this chapter, the following uses shall be prohibited in all districts: ... (4) Any building or structure or any use of any building, structure or premises which is injurious, obnoxious, offensive, dangerous or a nuisance to the community or to the neighborhood through noise vibration, concussion, odors, fumes, smoke, gases, dust, harmful fluids or substances, danger of fire or explosion or other objectionable feature detrimental to the community or neighborhood health, safety, convenience, morals or welfare." (Emphasis added)

[Note 4] Zoning Bylaw § 139-11(B) defmes "major commercial development" as: "a single commercial structure or use, or a group of commercial structures or uses, which is proposed to be constructed on a single lot or tract of land or on contiguous tracts ofland and held in common ownership or control, meeting, in the aggregate, any one or more of the following criteria: (1) Five thousand square feet of commercial use, including, but not limited to the total of the following: ... (b) Outdoor commercial use, including but not limited to sand, gravel, or topsoil borrow operations and asphalt plants; land used commercially for recreation, and land used for the exterior storage or display of merchandise, equipment or material." (Emphasis added)

[Note 5] ZoningBylaw§ 139-l l(A) provides: "Every commercial use which constitutes a major commercial development, as defined in Subsection B below, shall require the grant of a special permit and major site plan review by the Planning Board under this§ 139-11: (1) Notwithstanding the fact that such use or uses may be listed elsewhere in this chapter as a permitted use or a use by exception requiring a special permit; and (2) Whether or not it is located in a commercial zoning district (RC, RC-2, CDT or LC); for example, if it is a preexisting nonconforming commercial use in a residential district and, pursuant to§§ 139-33(A) and 139-11(C) below, has or will become a major commercial development." (Emphasis added)

[Note 6] The order entered on the docket following the March 28, 2013 conference is as follows: "Case Management Conference Held. Early Intervention Event Held. Attorneys Speicher, Pucci, and Humphrey Appeared. By April 19, 2013, Parties to File Joint Report Indicating their Collective or Respective View(s) Whether to Proceed with Project Defendant/Permit Holder Was Required to Obtain Site Plan Approval (Or Other Permit) Beyond What Was Obtained, or Whether a Deficiency of Notice Exists as to Hearing Defendant Board Held, and Whether Interest of Justice Requires Remand to Planning Board to Address these Issues. Court to Review Submissions of Parties, and May Order Remand Even Over Objection. Joint Report of April 19, 2013 Also to Indicate Whether Private Parties Are Willing to Attend Mediation Session, and if so, Naming Mediation Provider, Identity of Neutral, and Date of Session. If Parties Have Not Scheduled Mediation by April 19, 2013, Court May Then or Later Order Mediation Screening. If Mediation Is Not Held, or Does Not Resolve All Issues In This Case, Discovery to Close August 31, 2013. Private Defendant Reports Intent to File Motion for Summary Judgment; Such Motion to be Filed by September 30, 2013, as to All Issues as to Which Plaintiff Will Seek Summary Judgment. Land Court Rule 4 to Govern Content of that Motion, and Timing and Content of Subsequent Filings. If By Close of Discovery, No Party Intends to File Dispositive Motion, Not Later than August 31, 2013 Parties to File Report to that Effect and to Request a Pretrial Conference. (Piper, J.)"

[Note 7] The order entered on the docket following hearing on April 12, 2016 is as follows: "Hearing held on Private Defendant's Motion for Leave to File Late a Motion for Summary Judgment. Attorney Gallagher appeared for Plaintiffs. Attorney Goldberg appeared for Defendant Nantucket Hunting Association, Inc. Attorney Bayer appeared for Municipal Defendants. After hearing, the court concludes that pausing the litigation at this late date for summary judgment would be inappropriate. The likelihood that the court would resolve the case (or many issues within the case) as a matter of law on undisputed facts is fairly slim, and cannot justify the delay to the parties, and the court, which would be required to hear the motion and issue a ruling. The court notes this does not mean the issues Defendants planned to raise in a motion for summary judgment are lost. Defendants will have opportunity to establish at trial (among their other legally-appropriate theories), that Plaintiffs do not have standing to bring this case, that defendants do not require variance or other approvals to proceed with their project, and that frontage for their parcel is legally adequate. Pretrial Conference to go forward as now scheduled for April 29, 20 I6 at I I:30 AM. Parties are to submit a Joint Pretrial Memorandum by April 22, 2016. Counsel and parties are to continue to hold June 9-10, 2016 for trial. (Piper, J.)"

[Note 8] The order entered on the docket following the hearing on April 29, 2016 on the private defendant's motion to preclude additional experts is as follows: "Hearing held on Defendant's Motion to Preclude Testimony of Any Additional Expert for Plaintiffs. Attorneys Gallagher, Goldberg, Devasher, and Pucci appeared. For reasons expressed on the record, and summarized below, the Motion to Preclude Testimony of Any Additional Expert for Plaintiffs is ALLOWED. The court fmds that it would be prejudicially unfair at this late date for Plaintiffs to introduce into evidence testimony of another expert not previously disclosed. This ruling applies to all as yet unidentified experts, as well as to the recent designation of Ms. Day as an expert. She may testify as a fact witness, but only as to matters not requiring expert qualification as a prerequisite to giving expert opinion testimony. To have ruled otherwise would have required the court to permit Defendants an opportunity to find an additional expert to counter the expected testimony. This would be unfair to the Defendants and lead to additional delay in the resolution of this case. The court further concludes that the witness in question, who is a broker, not a licensed appraiser, may be limited in her ability to offer appraisal valuation testimony. This witness long has been listed as a fact witness and may testify in that capacity. (Piper, J.)"

[Note 9] The order entered on the docket following the hearing on April 29, 2016 on private defendant's motion to preclude testimony of Larry Pater is as follows: "Hearing held on Defendant's Motion to Preclude Testimony of Larry Pater. Attorneys Gallagher, Goldberg, Devasher, and Pucci appeared. For reasons expressed on the record, and summarized below, the Motion to Preclude Testimony of Larry Pater is DENIED. The court concludes that the appropriate action is not to exclude and render inadmissible this testimony from the outset. While acknowledging the marked difference between the testimony Dr. Pater will present and the methodology for acoustic tests set out in the Town's noise regulation, the court concludes that Defendant's argument against Dr. Pater's testimony goes to the weight of the evidence and not its admissibility. On both the issue of aggrievement and on the merits there is a question whether nuisance or other objectionable sounds will result from the gun range use whose special permit is challenged in this litigation. The zoning laws do not forbid the court's consideration of expert acoustical evidence based on methodology different than set forth in the general bylaws concerning noise. Nothing suggests that the different approach taken by Dr. Pater is inherently unscientific or unreliable. Having an expert analyze this question using an alternative approach may be of benefit to the court as trier of fact and is not, in any event, inadmissible. The court forms no judgment about the weight of the testimony, and the Defendants can, at trial, raise in cross-examination the same points advanced in their motion, which compare this expert's methods to the bylaw and to the methods used by other experts. (Piper, J.)"

[Note 10] The order entered on the docket following the filing of Defendant NHA's motion to strike the unauthorized pleading is as follows: "By Apr. 18, 2017, plaintiffs to file a showing of good cause, if any, why defendant's motion to strike Plaintiffs' Opposition to Defendant Nantucket Hunting Association, Inc.'s Findings of Fact, filed Apr. 6, 2016, should not be granted. The court will act on the papers filed without further hearing, unless otherwise ordered. Counsel are free, alternatively, to stipulate in writing to an arrangement by which the parties may file further oppositions or briefing, beyond those earlier filed post-trial. (Piper, J.)"

[Note 11] The order entered on the docket following the closing arguments is as follows: "No later than fourteen (14) days after the transcript of today's session is filed with the court, defendant Hunting Association to file and serve a responsive opposition similar in scope to Plaintiffs' Opposition to Defendant Nantucket Hunting Association, Inc.'s Findings of Fact, filed April 6, 2017. No other post-trial filings by any party are authorized. (Piper, J.)"

[Note 12] Zoning Bylaw § 139-2(A) defines "street" as: "(1) A public way or a way which the Town Clerk certifies is maintained and used as a public way; or (2) A way shown on a plan approved and endorsed by the Nantucket Planning Board in accordance with the Massachusetts Subdivision Control Law and which has been improved and constructed in accordance with the requirements of such approval; or (3) A way in legal and physical existence when the Subdivision Control Law became effective on Nantucket in February l, 1955, which had on January 26, 1992, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon and served thereby, and for the installation of such municipal services to serve such land and the buildings erected or to be erected thereon."

[Note 13] Zoning Bylaw § 139-2(A) defines "frontage" as: "The lineal extent of the boundary between a lot and an abutting street measured along a single street line affording legal and practical access to the lot. For a lot abutting two or more streets, frontage is measured along any single street line of the lot. Frontage shall not include jogs in street width, backup strips and other irregularities in street line, such as at a turning "T" or hammerhead turnaround or street-width change."

[Note 14] Zoning Bylaw § 139-16 generally requires at least 200 feet of frontage in a LUG-3 zoning district. Zoning Bylaw § 139-16(B)(2) provides that "[f]rontage may be reduced by up to 30% for lots fronting on the turning circle of a dead-end street."

[Note 15] Section 101-3 of the Noise Bylaw defines the precise methodology required for measuring noise as follows: "A. The measurement of sound or noise shall be made with a sound-level meter meeting the standards prescribed by ANSI SI .4 - 1971 Type 1 or Type 2 and IEC 1979. The instrument shall be maintained in calibration and good working order. A calibration check shall be made of the system at the time of any noise measurement. Measurements recorded shall be taken so as to provide a proper representation of the noise source. During measurement, the microphone shall be used when required. Traffic, aircraft and other transportation noise sources, and other background noises shall not be considered in taking measurements except where such background noise interferes with the primary noise being measured. B. The show meter response of the sound-level meter shall be used in order to best determine that the amplitude has not exceeded the limiting noise levels set forth in [§ 101-4] below. C. The measurement shall be made at the location that the noise is perceived by the complainant or upon a public way, at a level of five feet above the ground."

[Note 16] The Noise Bylaw § 101-2(A) provides in relevant part as follows: "Use districts. It shall be unlawful to project a sound or noise, excluding noise emanating from cars, trucks, or other vehicles, from one property to another within the boundary of a use district, which noise exceeds the limiting noise spectra set forth in Table I [§ 101-4] below." The Noise Bylaw§ 101-4 defines the maximum permissible sound levels as follows: "A. Table I: Limiting Noise Level for Use Districts. (Use District A represents the LUG-I, LUG-2, LUG-3, ROH and SOH Residential and MMD, AHD, OIH, and ALC Special Districts. Use District B represents the R-1, R-2 and R-10 and SR-I and SR-2 Residential districts. Use District C represents the LC, RC and RC-2 Commercial Zones, all as defined and delimited in the Nantucket Zoning ordinance, as amended.)

Maximum Permissible A-Weighted Sound Level

Use District Day Night

District A:

L-10 level 55 45

Maximum 69 58

District B:

L-10 level 60 45

Maximum 70 58

District C:

L-10 level 60 60

Maximum 70 70

NOTES: 1. "L-10" refers to a national guideline for measuring noise levels over time and is recommended by the Envirorunental Protection Agency. 2. Sound levels are in decibels re: 20 micropascals, measured on the A-weighting network of a sound-level meter meeting the standards referenced in § 101-3A.

(1) For the purpose of this table, "day" shall be defined as 7:00 a.m. to 10:00 p.m. (7:30 a.m. between June 15th and September 15th in each year), and "night" shall be defined as 10:00 p.m. to 7:00 a.m. (7:30 a.m. between June 15th and September 15th in each year).

(2) If the noise is not smooth and continuous, one or more of the corrections in Table II below shall be added to or subtracted from each of the decibel levels given in Table I of this section.

B. Table II: Type of Operation in Character of Noise.

Character of Noise Correction

Impulsive (hanunering, etc.) -5

Periodic (hum, screech, etc.) -5

[Note 17] See footnote 9.

[Note 18] To the extent Plaintiffs seek to ground their standing independently on a general apprehension that the operation of the Shooting Facility will cause people on Wigwam Road to be unsafe, and at risk of injury from the use of firearms at the new range, that contention is not supported by the credible evidence, and does not afford standing to any of the Plaintiffs. To the extent that Plaintiffs seek to assign some loss in the value of their properties to the perceived risk, whether or not accurate, of injury from gun use at the Shooting Facility, I find and rule that they have not carried their burden of establishing their standing based on property value diminution, whether the claimed loss of value rests on worry about injury from gunfrre, noise from gunfire, or any other aspect to the Shooting Facility and its operation.

[Note 19] See Colangelo v. Board of Appeals of Lexington, 407 Mass. 242 , 246 (1990) (holding that the Board's denial of the plaintiffs' request was an abuse of discretion since it consistently allowed that specific request for other projects); Quincy v. Planning Bd. Of Tewksbury. 39 Mass. App. Ct. 17 , 22-24 (1995) (affirming Land Court judgment granting special permit after the Board ignored the judge's suggestions on multiple remands without a reasonable explanation); Selectmen of Stockbridge v. Monument Inn. Inc., 8 Mass. App. Ct. 158 , 163 (1979), quoting Chira v. Planning Bd. of Tisbury. 3 Mass. App. Ct. 433 , 440 (1975) (deciding that modification is allowed because "it is clear from the record that exactly the same result would occur from a remand as that effected by the decree").

[Note 20] See footnote 9.

[Note 21] I rely as well on Thalheimer's field test (and the opinions he derived from them) to determine that the shooting that will take place at open air trap range component of the Shooting Facility will not produce legally prohibited noise at the Plaintiffs' properties. The test firing conducted by Thalheimer did not, of course, take advantage of the berms and below-grade shooting locations that are proposed in the Plans for the firing range-because those features have yet to be constructed. Thalheimer's test firing was at grade, and this, I find, approximates the firing that will occur at the trap range. That the test firing at grade did not yield noise readings in a prohibited magnitude at Wigwam Road, supports the conclusion that even as to the shotguns used in the open air at grade on the trap range, the noise that will be produced will not rise to a prohibited level at the Plaintiffs' locations.