MISC 15-000481

February 26, 2018

Plymouth, ss.



In this action, Plaintiffs Sharl Heller, Christine Silva, Peter Silva and Frederick Cook (Plaintiffs) challenge the grant of a special permit to Defendant Kingstown Corporation (Kingstown) by the Board of Appeals (Board) of the Town of Plymouth (Town), whose members are Defendants, for the excavation of approximately 250,000 cubic yards of sand and gravel from a lot in Plymouth. The lot is known as the County Wood Lot.

The controversy began in 2014, when the Board denied Kingstown's application for a special permit. Kingstown appealed the denial to this court. See Kingstown Corp. v. Zoning Bd. of Appeals of Plymouth, 14 MISC 488666 (2014 Case). At the joint request of the parties, the court (Long, J.), remanded the case to the Board, ordering a new public hearing on the application and retaining jurisdiction in the event any parties wished to appeal the Board's decision following remand. The Board scheduled a new public hearing. When mailing written notices to those entitled to receive them under G. L. c. 40A, § 11, the Board used an outdated list of abutters that did not include Frederick Cook, a direct abutter to the County Wood Lot. The public hearing took place in five sessions over several months' time, resulting in the grant of a special permit to Kingstown on October 21, 2015.

Plaintiffs, who were not parties to the 2014 Case, initiated this action on November 11, 2015, pursuant to G. L. c. 40A, § 17. [Note 1] All Plaintiffs jointly moved for summary judgment, arguing the Board's failure to send written notice of the new public hearing after remand to Frederick Cook constituted a defect depriving this court of jurisdiction. By a written order dated February 13, 2017, this court denied that motion without argument in accordance with Land Court Rule 6.

Three days of trial were held on April 19th – 21st, 2017. Twenty-four exhibits were entered in evidence. Bradford Cushing, the owner of Kingstown Corporation, William R. Shaw, a registered professional civil engineer; Daniel Pallotta, a Plymouth County Commissioner, and James Aiden Foley, a principal at BlueWave Capital, LLC, testified for Kingstown. Plaintiffs Sharl Heller, Christine Silva, and Frederick Cook testified. The Board did not call any witnesses. As discussed below, this court finds and rules Plaintiffs are not "person[s] aggrieved" within the meaning of G. L. c. 40A, § 11, and do not have standing to maintain this zoning appeal. This action will be dismissed.

Based on an agreed statement of facts, stipulations, exhibits, and the credible testimony introduced at trial, and the reasonable inferences drawn therefrom, this court finds the following facts:

County Wood Lot

1. The County Wood Lot is an approximately 106 acre property shown as Lot 54 on Map 88 of the Town's Assessor's Maps. It is owned by the Inhabitants of Plymouth County, by and through the Plymouth County Commissioners.

2. The County Wood Lot is located partly in both the Light Industrial and Rural Residential zoning districts. The area where the sand and gravel removal will take place is zoned Rural Residential, under § 205-40 of the Zoning Bylaw of the Town (Bylaw).

3. The County Wood Lot is vegetated with scrub oak, scrub pine and thick underbrush. Located on the County Wood Lot are a cellular communications tower, a county fire department training facility, dirt cart paths and small hay fields. The land is burdened by two electric company easements.

4. The uses in the area surrounding the County Wood Lot to the north and west are primarily industrial, commercial and municipal in nature. Camelot Drive is north of the County Wood Lot. Camelot Drive and the connecting streets surrounding the County Wood Lot are part of an industrial park. The industrial park contains the Plymouth sewer department and department of public works, a Plymouth sewer treatment plant, a sand pit and processing facility, a post office sorting facility, a propane facility, Kingstown's business headquarters, and multiple equipment rental businesses, contractors' yards, automotive parts stores, repair shops, and a recycling center, owned by a Mr. Balboni.

5. The industrial part also contains a twenty-five acre solar array on property immediately adjoining the County Wood Lot. See fact paragraph 48, supra.

6. Further north of Camelot Drive are the "Shops at 5," a retail area with large box stores such as T. J. Maxx, Kohl's and BJ's, as well as smaller retail stores.

7. An equipment rental and septic business and an operational gravel pit abut the County Wood Lot to the west, on Long Pond Road. The business and gravel pit are operated by a Mr. Fortini.

Special Permit – Original Application Process

8. Kingstown's headquarters are located at 61 Camelot Drive in Plymouth, shown as Lot 3D on Assessor's Map 83. The headquarters directly abut the County Wood Lot. Kingstown has been in the business of extracting sand and gravel in and around Plymouth since 1977.

9. On May 25, 2010, Kingstown entered into a contract for gravel removal (Contract) with the County of Plymouth, acting by and through the Plymouth County Commissioners, to remove 250,000 cubic yards of sand and gravel from the County Wood Lot.

10. Kingstown was required under the Contract to pay $345,000 to the Plymouth County Commissioners, and did so.

11. On June 17, 2014, Kingstown submitted the application (Original Application) to the Board for a special permit under Bylaw § 205-40(D)(1) [Note 2] and § 205-18, paragraphs B(4), F and G, [Note 3] for the removal of 250,00 cubic yards of sand and gravel from the County Wood Lot (Original Project).

12. As part of the Original Application, Kingstown filed a set of site permitting plans (Site Plans), depicting, among other things: 1) the boundaries of the County Wood Lot and abutting properties; 2) the existing conditions of the County Wood Lot and certain portions of abutting properties, including, but not limited to, topographical features in two-foot intervals, easements, cart paths, and cellular communication towers; 3) erosion control and grading plans showing the proposed excavation area in relation to the site features, and depicting proposed side slopes, erosion measures, and location of an anticipated solar field; and 4) erosion control measures for the gravel access road. The Site Plans consisted of ten sheets in total.

13. Kingstown also filed an Environmental Impact Statement prepared by its engineer, William R. Shaw (Shaw). Shaw is a registered professional civil engineer of Associated Engineers of Plymouth. As noted in the Environmental Impact Statement, the project site contains no mapped wetlands, mapped areas of special habitats or rare species.

14. The Board denied the Original Application in a written decision dated November 19, 2014 (Original Decision).

Remand Proceedings

15. The Board held five sessions pursuant to the remand on June 17, 2015; July 1, 2015; August 19, 2015; September 16, 2015; and October 7, 2015.

16. The May 23, 2014 Abutters' List used by the Board to determine those entitled to notice of the June 17, 2015 remand hearing identified the owners of 12 Tall Pines Road as Wendy Ann Kotler and the Alphonse Saniuta Life Estate. The mailing address was listed as 931 Long Pond Road in Plymouth. This was an outdated listing, and listed parties who no longer owned 12 Tall Pines Road.

17. The Board did not send mailed notice of the remand hearing to the current owner of 12 Tall Pines Road, Plaintiff Frederick Cook (Cook).

18. The Board published notice of the June 17, 2015 hearing in the Old Colony Memorial Newspaper, a paper of general circulation in Plymouth, on May 27, 2015 and June 3, 2015.

19. Kingstown posted a notice of the June 17, 2015 remand hearing at two locations: 1) at the entrance to its property at 61 Camelot Drive; and 2) at the entrance to the County Wood Lot, at the shared boundary line between it and 61 Camelot Drive.

Revised Project

20. Through the course of the five remand hearings, the Original Application was altered in several ways (Revised Project), including:

a. The overall excavation area was reduced from fifteen to eight acres.

b. The excavation area was relocated approximately 200 feet to the south of its original location (Excavation Area).

c. The amount of sand and gravel to be extracted was reduced from 250,000 cubic yards to 201,000 cubic yards.

d. The "per cubic yard" contribution to the Town increased from $0.10 to $0.15.

21. As part of the alterations, sheet 8 of the Site Plans, titled "Grading Plan," was replaced with a new sheet (Revised Sheet 8). All other sheets remained unchanged.

22. All excavation under the Revised Project is expected to be completed within two years.

23. A dirt access road (Access Road) leads from the existing Kingstown trucking facility on Camelot Drive to the Excavation Area. A portion of the Access Road to the Excavation Area is located in the Light Industrial District. The Access Road will be improved as necessary to allow for the passage of trucks.

24. All activity related to the Revised Project will take place within the Excavation Area or on the Access Road. Work activity is restricted to the hours 7:00 a.m. to 4:00 p.m. Monday through Friday. No work on holidays is allowed.

25. The general process for the sand and gravel excavation is to begin excavation at the nearest point to the Access Road, creating a pit or bowl. In this case, the Revised Project calls for excavation to begin at the northerly edge of the project site, as shown on the Site Plans. 4.8 acres of the total eight acres will be used for actual excavation, with the remaining 3.19 acres consisting of the slide slopes of the pit, and the Access Road.

26. Kingstown will then create a "face" where the sand and gravel material making up one side of the pit. The front-end loaders will then remove the material at the base of the face, keeping the face pitched away from the pit to allow for proper water drainage. The height of the side slopes of the pit will range from twelve to twenty-five feet.

27. Rain will accumulate on the face of the pit, which is sand, and will infiltrate into the ground. The loaders will continue the excavation, and move the face all the way through the project in a southerly direction, maintaining the sloped sides of the pit to ensure that water runoff is captured on site within the pit.

28. No excavation or grading will take place within one hundred feet of any lot lines.

29. The Revised Project is designed to disturb the minimum amount of natural tree coverage possible.

30. The process in which the Revised Project's excavation will occur – creating a bowl shape that gradually moves south through the project site, with sloped sides ranging from twelve to twenty-five feet – will naturally mitigate noise emanating from within the bowl. Noise from within the bowl generally will be mitigated, by bouncing back from the sides of the bowl. [Note 4]

31. When the excavation is complete, the side slopes will be loamed and seeded at least six inches deep for stabilization, leaving a shallow bowl. The topsoil will be replaced to a depth not less than six inches. The Excavation Area is anticipated to be fully vegetated with trees within ten years.

32. A portion of the face will be opened up and graded to direct water runoff to a natural depression for infiltration (Natural Drainage Area, as shown on Revised Sheet 8). The Natural Drainage Area is sufficient to handle water runoff from a 100-year storm.

33. The permanent shallow bowl left at the end of the Revised Project will have slopes graded at a three-to-one angle. [Note 5] This grade of slope is found naturally throughout the County Wood Lot.

34. To haul out the extracted sand and gravel from the County Wood Lot, Kingstown's trucks will use the Access Road. The trucks will then travel to Kingstown's headquarters at 61 Camelot Drive, travel on Camelot Drive to its intersection with Long Pond Road, and access Route 3 from Long Pond Road. Many other excavation projects have previously used this route.

35. Heavy equipment truck trips are limited to forty round-trips per day.

36. The Board granted Kingstown's special permit application for the Revised Project subject to twenty-one conditions set forth in a written decision filed with the Town Clerk on October 22, 2015 (2015 Decision).

37. On December 23, 2015, Kingstown was issued a zoning permit by the Town Building Commissioner for work authorized under the 2015 Decision.

Plaintiff Christine Silva

38. Plaintiffs Peter Silva and Christine Silva (Silva) [Note 6] own the property known as and numbered 144 Long Pond Road (Silva Property). The Silva Property consists of three parcels, shown as Lots 42-1, 42-2 and 42-3 on Assessor's Map 88. Silva's house is located on Lot 42-2, which is the middle lot of the three. Ms. Silva has lived there since 2001. The Silva Property abuts the County Wood Lot.

39. Silva's residence is located 1,100 feet from the southerly edge of the Excavation Area, and 850 feet from the Natural Drainage Area. The pit face of the Excavation Area is located approximately 435 feet to the corner of Silva's property.

40. The area separating the Excavation Area and the Silva Property is largely wooded and forested.

Plaintiff Sharl Heller

41. Plaintiff Sharl Heller (Heller) resides at 201 Center Hill Road in Plymouth.

42. Heller is a co-founder of the Southeastern Massachusetts Pine Barrens Alliance (SEMPBA), which rents space from the Town at a property shown as Lot 2-6 on Assessor's Map 88.

43. SEMPBA's mission is to raise awareness of the pine barrens eco-region of southeastern Massachusetts, and to build alliances to help preserve the pine barrens habitat.

44. Heller's residence is approximately seven and one half miles from the Excavation Area.

45. Neither Heller's residence, nor SEMPBA's office space, are located within 300 feet of an abutter to the County Wood Lot.

Plaintiff Frederick Cook

46. Plaintiff Frederick Cook (Cook) owns and resides at property known as and numbered 12 Tall Pines Road in Plymouth, shown as Lot 1-23 on Assessor's Map 81 (Cook Property). The Cook Property directly abuts the County Wood Lot. Cook has resided there since 2014.

47. Cook's residence is located 1,700 feet from the closest edge of the Excavation Area.


48. An existing solar array facility is located on a parcel of land shown as Lot 19E on Assessor's Map 83. Lot 19E is located in a Rural residential zoning district, off Raffaele Road (Raffaele Road Solar Project) and comprises approximately twenty-five acres. The lot abuts the County Wood Lot to the east.

49. The Raffaele Road Solar Project was completed in 2014.

50. The Solar Project is owned by Plymouth Sand & Gravel. Plymouth Sand & Gravel is owned by the Cushing family, which also owns Kingstown.

51. The Raffaele Road Solar Project was developed and is operated by a subsidiary of BlueWave Capital, LLC (BlueWave), which develops solar energy projects. Plymouth Sand & Gravel leases the land for the Raffaele Road Solar Project to BlueWave.

52. The site of the Raffaele Road Solar Project was previously the site of a sand and gravel excavation operation by Plymouth Sand & Gravel (Prior Excavation). The operation took place between late 1996 and 2012, during which approximately 800,000 cubic yards of sand and gravel were extracted.

53. Under the Prior Excavation, approximately fifty to sixty truckloads of material were hauled off the property per day. Two screening plants were also established onsite.

54. When Silva moved into her property in 2001, she was unaware of the ongoing Prior Excavation. [Note 7]

55. Frederick Cook works in construction and is familiar with construction noises. Currently, when outside his property, Cook does not hear sounds from any industrial or construction activities, heavy equipment or trucks, truck back-up alarms, earth moving equipment, tree stump removal, wood chippers, hydraulics or gear braking of trucks.

56. Cook does not hear any industrial or commercial activity from Camelot Drive. He estimates the industrial park located on Camelot Drive is approximately one-half mile from the Cook Property.

57. From his property, Cook can hear people riding dirt bikes under the power lines, located in one of the two "Electric Company Easements" shown on the Site Plans.

I. Standing

Under G. L. c. 40A, § 17, only a "person aggrieved" has standing to challenge a decision by a zoning board of appeals. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). A person aggrieved must suffer "some infringement of legal rights." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Aggrievement requires more than "minimal or slightly appreciable harm," and the "right or interest asserted by the party claiming aggrievement must be one that G. L. c. 40A intended to protect." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011).

As abutters to the County Wood Lot, Plaintiffs Christine Silva and Frederick Cook are "parties in interest" under G. L. c. 40A, § 11. [Note 8] They benefit from a rebuttable presumption that they have standing. 81 Spooner Road, LLC, 461 Mass. at 700; Marashlian, 421 Mass. at 721. To do so, the party challenging the presumption "must offer evidence warranting a finding contrary to the presumed fact." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006). A defendant may also rely on the plaintiff's lack of evidence in order to rebut a claimed basis for standing. Standerwick, 447 Mass. at 35.

If sufficiently rebutted, plaintiffs then must "'establish – by direct facts and not speculative personal opinion – that [their] injury is special and different from the concerns of the rest of the community[.]'" 81 Spooner Road, LLC, 461 Mass. at 701, quoting Standerwick, 447 Mass. at 32. [Note 9] The question is "whether plaintiffs have put forth credible evidence to show they will be injured or harmed by the proposed changes to an abutting property, not whether they will simply be 'impacted' by such changes." Kenner, 459 Mass. at 121. Credible evidence is composed of both qualitative and quantitative components: "quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury," and "[q]ualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (internal citations omitted). Conjecture and personal opinion are insufficient. Id.

a. Sharl Heller Lacks Standing

Heller owns no property abutting the County Wood Lot, nor any property abutting an abutter to the County Wood Lot within three-hundred feet. Her personal residence is located approximately seven and a half miles from the Excavation Area. She does not qualify as a "party in interest" under G. L. c. 40A, § 11, and does not benefit from presumptive standing. Accordingly, she carries the burden of putting forth "credible evidence to substantiate [her] allegations" and "establish . . . that [her] injury is special and different." Kenner, 459 Mass. at 118.

Heller asserts standing based on her environmental concerns. She is the co-founder and president of SEMPBA, a nonprofit organization that aims to raise awareness of and preserve the pine barrens ecosystem. Heller has hiked the County Wood Lot several times, and uses it to train volunteers on data collection and mapping of natural resources in connection with her SEMPBA work. She alleges the Revised Project will destroy a large portion of the pine barrens habitat, and will affect her personally and professionally, in ways distinct from the community at large due to her role with SEMPBA and her use of the County Wood Lot.

Heller's concerns, however, are speculative and without sufficient evidentiary support. She provided no evidence that the Revised Project will destroy a large portion of rare habitat, that invasive species will proliferate, that erosion will occur, or that the nature of the surrounding environment will be completely changed. No expert testimony was provided to support or bolster her claims, leaving the court with only Heller's personal testimony that the Revised Project will damage the environment surrounding the Excavation Area. [Note 10]

Heller categorizes her standing as based on a "civic interest" in ensuring the Excavation Area remains preserved, and admits she has no legal interest or property interest potentially affected by the Revised Project. Heller's concerns relate to the environmental effects to the County Wood Lot itself, not to any private right or property interest held by her directly. A claimed injury or loss for purposes of standing must be personal, and not simply reflective of the concerns of the community. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003); see also Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 495–496 (1989) (statement of corporate purposes expressing a general civic interest in the enforcement of zoning laws not enough to confer standing). Heller cares deeply about the pine barrens ecosystem, as shown by her commitment to SEMPBA, but standing is not measured by the intensity of the one's interest or advocacy. Enos v. Sec'y of Envtl. Affairs, 432 Mass. 132 , 135 (2000) (citations omitted). A plaintiff must demonstrate a legally cognizable injury. Id. Heller failed to do so, and lacks standing to challenge the 2015 Decision.

b. Silva Lacks Standing Based on Her Concerns Regarding Noise

As an abutter, Silva benefits from presumptive standing. She claims the Revised Project will increase noise that will be heard from her property. Kingstown, however, effectively rebutted that presumption through the testimony of their engineer, William Shaw, and the cross- examination of Silva herself, introducing sufficient evidence that Silva is unlikely to suffer more than a de minimis injury due to noise from the Revised Project.

While none of the private parties produced expert testimony regarding the issue of noise, this court finds that Kingstown produced sufficient evidence to warrant a finding that noise from the Revised Project is unlikely to negatively affect Silva. Shaw testified that the Revised Project's excavation will move from north to south, creating a bowl shape. This shape blocks and reflects sound from within the bowl off the bowl's sides, serving as a natural containment and mitigation measure. Shaw calculated the distance from Silva's residence to the closest edge of the Excavation Area as 1,100 feet, and testified that this distance and the surrounding wooded area would also serve to reduce any appreciable noise impacts on Silva's property. Shaw also personally visited the County Wood Lot, stationing himself for several hours near the southernmost utility easement, [Note 11] closest to the Silva Property. He listened for noises generated by the industrial and commercial activities taking place on Camelot Drive, and did not hear any he personally considered "a problem." [Note 12] He testified: "But I did stand in the power easement that is closer to Camelot Park than the Silvas' house and listened from there and know that there is a myriad of activity going on there. And I formed my opinion from what I heard, and I didn't hear much." Tr. vol. 2, 119: 17-22

Kingstown also elicited testimony from Silva regarding existing noise in the neighborhood, and noise from past excavation projects, to show that noise from the Revised Project is unlikely to have a negative impact. Silva testified she does not hear noise caused by operations and tractor trailers at the Fortini property, located directly north of her property, and west of the County Wood Lot, on Long Pond Road. The Fortini property contains an equipment rental and septic business, as well as an operational gravel pit. Silva further testified she hears only distant or passing noise, including from tractor trailers, from the Balboni processing plant located on Camelot Drive, and that such noise has never bothered her.

Silva's testimony regarding the impacts of the Prior Excavation further indicates that any harm she will suffer as a result of the noise generated by the Revised Project will be minimal. Silva did not hear any noise at her property until approximately 2013 or 2014, despite the fact that the Prior Excavation had been ongoing since late 1996. Kingstown's principal, Bradford Cushing, testified that Plymouth Sand & Gravel had conducted a sand and gravel excavation from 1996 to 2012, on a lot abutting the County Wood Lot to the east. Further, 800,000 cubic yards of material was extracted, an amount four times larger than the amount Kingstown is permitted to extract through the Revised Project. The Prior Excavation was a much larger excavation than the Revised Project, with more daily truckloads and two on-site screening plants that the Revised Project lacks. Despite living in her home since 2001, Silva never heard any noise from the Prior Excavation, and did not know of its existence until approximately 2013 to 2014. By that point, the excavation had concluded, and work had begun on the Raffale Road Solar Project.

If the court were to credit Ms. Silva's testimony that she began hearing noise from truck back-up alarms, truck engines, and truck bed slamming in 2013 or 2014 that noise likely emanated from the Raffaele Road Solar Project. Taking her testimony in full, however, this court does not find Ms. Silva's testimony credible, but, rather, finds it tailored to the task of establishing her standing. It doesn't make sense that Ms. Silva could hear clearly the excavation work from the Raffaele Road Solar Project, but never heard anything but minimal distant noise from the Prior Excavation over the many years that project spanned. Accordingly, the court finds that Kingstown produced evidence sufficient to warrant a "finding contrary to the presumed fact" that Silva would be aggrieved by noise caused by the Revised Project. See Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003).

Because Kingstown successfully rebutted Silva's presumptive standing, the burden shifted to Silva to show by credible evidence required by Butler, that the Revised Project would noise that would harm Silva differently from the general community. As noted above, Silva also did not introduce an expert witness. She provided no additional testimony or evidence, other than her speculative opinion that the Revised Project will create harmful noise. Her opinion that her property will be harmed by noise was weakened by her own testimony that she did not hear, and was not aware of, a larger excavation project located on a lot abutting the County Wood Lot that lasted for approximately sixteen years. With her presumptive standing rebutted, and having failed to carry her burden to produce credible, non-speculative evidence of noise, Silva lacks standing to challenge the 2015 Decision based on noise.

c. Silva Lacks Standing Based On Diminution in Property Value

Silva also asserts she is aggrieved because the Revised Project will adversely impact the value of her property. "Diminution in value of real estate is a sufficient basis for standing only where it is derivative of or related to cognizable interests protect by the applicable zoning scheme." Kenner, 459 Mass. at 123 (internal quotations omitted). The diminution in value must be tethered to a legitimate and independent zoning interest. Having concluded above that Silva lacks standing based on her alleged harm from noise, and she asserted no other harm, there is no legitimate zoning interest on which to base the diminution in value claim.

Even if Silva had a legitimate and independent zoning interest to support the diminution in value claim, she failed to substantiate it with sufficient, credible evidence. Silva did not introduce any expert or other competent evidence as to the claimed loss in property value that would be caused by the Revised Project. She is a real estate broker by profession. While an owner of real property may testify as to its value, Epstein v. Bd. of Appeal of Boston, 77 Mass. App. Ct. 752 , 759–760 (2010), Silva provided no evidence or opinion as to the specific amount by which her property value would be diminished. No dollar amount, percentage or other quantifiable indicator was provided. Her primary concern revolved around concerns that the Revised Project may affect her ability to sell the property. Silva failed to tie the alleged aggrievement to a legally cognizable zoning interest, and further failed to provide sufficient evidence quantifying any diminution in value. As a result, she lacks standing to challenge the Board's decision on the basis of diminution in value.

d. Frederick Cook Lacks Standing Based On Noise

Cook, an abutting property owner to the County Wood Lot, also benefits from presumptive standing, and alleges aggrievement due to noise. Cook testified that he presently does not hear any noise from the industrial or commercial activities that take place on Camelot Drive. He is able to hear noise caused by dirt bikes ridden underneath the power lines crossing the County Wood Lot. Because he is familiar with construction equipment noise, and believes it will be louder than the noise from the dirt bikes, he concluded he will be able to hear noise from the Revised Project. As with Silva, the court finds Kingstown rebutted Cook's presumptive standing, and Cook failed to produce sufficient credible and non-speculative evidence of negative impacts caused by noise.

Shaw calculated the distance from Cook's residence to the closest edge of the Excavation Area to be 1,700 feet. He also testified how the Revised Project will have a minimal impact on noise, due to its bowl design, the surrounding wooded area, and the distance to Silva and Cook's respective homes. Cook, in response, was unable to provide evidence of harmful noise impacts other than his speculative testimony. Specifically, Cook believes he will be able to hear noise from the Project Site because the extraction work will use louder equipment than dirt bikes and is located just beyond the power lines. These allegations do not rise above the level of speculation and do not provide a basis for standing, See Kenner, 459 Mass. at 125. In any event, aggrievement requires more than minimal harm, and Cook did not present any expert or other credible testimony quantifying his alleged harm from noise. See Kenner, 459 Mass. at 121.

Having found that Plaintiffs are not aggrieved by the 2015 Decision, the court need not, and does not, reach the merits of their appeal. All plaintiffs lack standing, and the case will be DISMISSED.

Judgment to enter accordingly.


[Note 1] Frederick Cook was added as a plaintiff in an amended complaint, filed December 7, 2015.

[Note 2] Section 205-40(D)(1) provides that "sand and gravel quarries and similar extractive industries" are allowed in a Rural Residential zoning district by special permit, subject to environmental design criteria.

[Note 3] Section 205-18 outlines various "natural features conservation requirements," as well as the application procedures.

[Note 4] Tr. vol. 1, 175: 12–18.

[Note 5] A three-to-one slope means a foot of elevation is gained every three feet. Tr. vol. 2, 149: 1–3.

[Note 6] Peter Silva does not live at the property and did not participate or testify at trial. Hereinafter, "Silva" refers to Christine Silva.

[Note 7] "[Kingstown counsel]: So are you aware that the time that you moved in [in 2001,] that that was an active extraction site?

[Silva] No. [. . .]

Q: So are you aware that from 2001, up to the point that you said you heard vehicles up there in 2013, that that had been an ongoing and active gravel extraction site?

A: No.

Q; So when did you first learn that there was a gravel extraction site ongoing at the [Prior Excavation]?

A: Approximately 2013 or [2014].

Q: So that would mean that between 2001 and 2013, if that was an active extractive site, you couldn't hear it?

A: Oh, I did hear it.

Q: But you didn't hear it because [it's] going from 2001 to 2013. You just told me that you didn't even know it was there.

A: But the overwhelming noise came in 2013 or [2014].

Q: And so what's the difference between 2001 when you moved in and 2013?

A: I don't know."

Tr. vol. 2, 189: 4 - 191: 4.

[Note 8] G. L. c. 40A, § 11 provides, in relevant part: "'[p]arties in interest' . . . shall mean the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner[.]"

[Note 9] The plaintiff always bears the burden of proof on the issue of standing. The rebuttable presumption simply shifts the burden of going forward with rebuttal evidence to the defendant. Standerwick, 447 Mass. at 32 n.20.

[Note 10] The National Heritage and Endangered Species Program (NEHSP) publishes maps that show rare or endangered species and priority habitats under the Massachusetts Endangered Species Act (MESA). These maps are accessed via the MassGIS (Bureau of Geographic Information) website, using its "Oliver" interactive mapping tool. Data is collected and organized into layers, and the user selects the layers to be overlaid a specific address or location. When creating the GIS maps used to complete the Environmental Impact Statement, Kingstown's expert engineer, William Shaw, selected the following data layers: "estimated habitats of rare wildlife," and "priority habitats of rare species," under the NEHSP. Heller conceded at trial that no portion of the Excavation Area was mapped as containing these two categories, however she also claimed that additional information could have been found by Mr. Shaw had he conducted his search differently because the public may report sightings of various species to the NEHSP . Tr. vol. 2, 55: 11 - 56: 5. Heller testified about the existence of a specific type of NEHSP map (BioMap2) in support of her claims that endangered species live within the County Wood Lot, but the Biomaps, when proffered, were not entered in evidence and remained marked for identification only. Heller conceded that she has never made a filing with the NEHSP to inform it that she had observed threatened species on the County Wood Lot, and was not aware of any filings made by Cook or by Silva, who testified she had seen box turtles and other species on her property and the County Wood Lot. Tr. vol. 2, 56: 20 - 57: 3.

[Note 11] Shown as "Electric Company Easement" on Ex. 11.

[Note 12] Tr. vol. 2, 120: 13-15.