This lawsuit involves a family-owned nursery and landscaping business in the town of Milton ("Town"), and two neighbors' complaints as the business has expanded over the years. It all began in 1965 when a couple established a nursery business in a residential neighborhood.
Margaret Oldfield and her husband, Robert Oldfield, (the "Oldfield Parents"), operated The Thayer Nursery Corporation ("Thayer Nursery") for many years before passing it down to their children.
Eventually, after decades of operation, two of the Oldfield Parents' children, Margaret Oldfield, Jr. ("Margaret Jr.") and F. Joshua Oldfield ("Joshua") (collectively, the "Oldfield Children") took over the family business. [Note 1] As Thayer Nursery grew to include a commercial landscaping business, the terms of its special permit were amended several times. The first two amendments were granted at the request of the Oldfield Parents, and subsequent modifications originated with neighbors. In 2001, neighborhood complaints led the Planning Board to impose supplemental conditions on Thayer Nursery's operations. By 2013, abutters and current plaintiffs, Philip Johenning and John S. Rowe ("Plaintiffs"), had moved into the neighborhood and lodged their first complaint. Plaintiffs' first complaint came shortly after this court issued a decision invalidating a special permit at a similar nursery in Milton, holding that a varianceand not a special permitwas required to operate a landscaping business under the Town Zoning Bylaw. Lydon v. Town of Milton Bd. of Appeals, 20 LCR 251 , 256 (2012) (Misc. Case No. 09 MISC 399701) (Sands, J.). In late 2013, and again in early 2014, the Milton Zoning Board of Appeals ("Board of Appeals") issued orders to Thayer Nursery in late 2013, and again in early 2014, directing Thayer Nursery to limit its landscaping operations.
Thereafter began several years of community engagement and litigation. On January 6, 2014, a citizens' petition was filed and ultimately resulted an amendment to the Town Zoning Bylaw ("Zoning Bylaw") to permit certain landscaping businesses to continue operating in conjunction with nursery operations in residential districts, subject to a series of conditions and limitations ("Nursery Bylaw Amendment"). In 2014, Plaintiffs challenged the validity of the Nursery Bylaw Amendment under G. L. c. 240, § 14A by filing suit in this court. After the Land
Court and Appeals Court upheld the Nursery Bylaw Amendment, Thayer Nursery submitted an application for a special permit. Following several public hearings, the Milton Planning Board ("Planning Board") [Note 2] issued a decision on July 14, 2016 that granted the Oldfield Children and Thayer Nursery a special permit under the Nursery Bylaw Amendment, subject to detailed conditions ("Decision").
Plaintiffs now challenge that special permit and Decision pursuant to G. L. c 40A, § 17. Plaintiffs contend that the Oldfield Children and Thayer Nursery are not eligible applicants for a nursery special permit as a matter of law. Plaintiffs further argue that the Planning Board's Decision did not make findings sufficient to support granting the special permit and did not meaningfully apply the requirements of the Nursery Bylaw Amendment. Lastly, they maintain that the Planning Board acted with gross negligence, bad faith, or malice. Because I conclude that the Planning Board properly granted the special permit, I DENY Plaintiffs' Motion for Summary Judgment and ALLOW Defendants' cross motions.
I. FACTS AND PROCEDURAL HISTORY
Based on the pleadings and documents submitted with the cross motions for summary judgment, the following facts are not in dispute.
A. The Parties and Properties
1. Plaintiffs are residents of 23 Parkwood Drive, Milton, Massachusetts, which abuts Thayer Nursery. Concise Stmt. of Mat. Facts with Defs.' Resps. & Add'l Mat. Facts ("Joint Statement"), ¶ 1.
2. The Thayer Defendants include Joshua Oldfield and Margaret Oldfield Jr., (two children of the Oldfield Parents) as well as Thayer Nursery and Oldfield Family LLC. Thayer Nursery is a Massachusetts corporation created on February 10, 1965, with a principal place of business at 270 Hillside Street. Oldfield Family LLC is a Massachusetts limited liability company with a principal place of business at 217 Hillside Street. R. App. in Connection with Defs.' F. Joshua Oldfield, Margaret Oldfield, Thayer Nursery Corporation and Oldfield Family LLC's Consol. Mot. Summ. J. & Resp. Pls.' Mot. Summ. J. ("Thayer Defs. App."), Nos. 5. & 7. Joshua is the President and Director of Thayer Nursery, and Margaret Jr. is the Secretary and Treasurer. Oldfield Family LLC holds title to some of the property on which Thayer Nursery operates.
3. Thayer Nursery operates on several lots located in a Town residence district. Joint Statement ¶ 3. These lots include 270 Hillside Street, 0 Forest Street, 24 Forest Street, 217 Hillside Street, and 237 Hillside Street. Id.
4. The Oldfield Children own two of these lots. Specifically, Joshua and his wife, Stephanie Oldfield, own the property at 217 Hillside Street, [Note 3] while Margaret Jr. and her husband, Philip Laing, own the property at 237 Hillside Street. [Note 4] Oldfield Family LLC owns the remaining three properties at 270 Hillside Street, 0 Forest Street, and 24 Forest Street. [Note 5] Thayer Defs.' App., No. 4.C.
5. Thayer Nursery holds a lease for each of these properties from their respective owners.
Id.
B. Thayer Nursery, Its Permitting History, and the Neighborhood
6. In 1938, the Town adopted the Town of Milton Zoning Bylaw ("Original Zoning Bylaw"), which zoned the subject property for residential use. Under § III.A.7 (d), the Original Zoning Bylaw allowed a "nursery business" to operate in residence zones with a special permit.
7. On January 9, 1967, the Oldfield Parents applied for their first special permit to operate a nursery business on their property at 270 Hillside Street. [Note 6] Pursuant to Zoning Bylaw Section III.A.7 (d), the Board of Appeals issued the special permit on June 6, 1967 ("1967 Special Permit"). R. App. in Connection with Pls., Philip Johenning's and John S. Rowe's, Mot. Summ. J. ("Pls.' App."), Ex. C.C.
8. The 1967 Special Permit contained several conditions governing Thayer Nursery's operations at the property. Notable in light of Plaintiffs' arguments, condition number ten in the 1967 Special Permit ("Condition Ten") stated: "This permit runs to you personally (including any assistants) only, and shall not be assigned or transferred to any other person." Id.
9. As Thayer Nursery's business grew, the Oldfield Parents sought to modify their special permit. On October 29, 1987, the Board of Appeals amended the 1967 Special Permit ("1987 Amendment"). Id. at Ex. C.D. The 1987 Amendment expanded the nursery to include an adjoining lot, allow construction of a display room and office, permit parking for up to five trucks on the adjoining lot, and permit the sale of firewood and garden tools as "incidental to the operation of the nursery business. . . ." Id. The 1987 Amendment also modified Condition Ten: "This permit runs to the applicants and their children personally (including any assistants) only, and shall not be assigned or transferred to any other person." Id.
10. In its decision accompanying the 1987 Amendment, the Board of Appeals noted that neither it nor the Building Inspector had received any complaints since Thayer Nursery was first permitted 20 years prior, and that "the premises have always been neat, clean and/or in conformity with and in appreciation of the rural residential character of the neighborhood." Moreover, with regard to Condition Ten, the decision stated:
The Board finds that Paragraph 10 of the original Special Permit was intended to prevent the transfer of the permit to third persons who were not held in such high esteem as that which the neighbors held the applicants and that there was no intention to deprive members of the applicants' immediate family of the benefits of the Special Permit.
The Board of Appeals unanimously approved the 1987 Amendment.
11. In 2001, several abutters brought a zoning enforcement action contending that Thayer Nursery was acting beyond the scope of its special permit in operating a large commercial landscaping business. In its decision issued on February 26, 2002, the Board of Appeals found that, over the years, "the nature and scope of [Thayer Nursery's] nursery business has expanded rapidly and dramatically." Its landscaping operations have "grown from a small landscaping component consisting of the planting of shrubs and trees sold from the nursery operation to a large-scale offsite general commercial landscaping operation based on the nursery property." Such an operation with its significant noise, dust, and odors, "constitute[s] a substantial impairment of the residential character of the neighborhood and substantially derogate[s] from the intent or purpose of the Zoning Bylaw and the intent of the 1967 Special Permit." Def. Town of Milton Planning Board's App., Ex. 9A.
12. In its February 26, 2002 decision, the Board of Appeals again amended the 1967 Special Permit and imposed supplemental conditions on Thayer Nursery to protect the residential character of the neighborhood. These supplemental conditions included, for instance, protections addressing dust control, traffic control and noise mitigation. Id.
13. By 2013, Plaintiffs had moved to the neighborhood and filed a request for zoning enforcement with the Building Inspector, complaining that Thayer Nursery's large scale landscaping operations impaired use of their property. Plaintiffs contended that the nursery business had continued to expand over the years, and now included storage for landscaping materials such as kiln-dried firewood, mulch, loam, fertilizer, stone pavers, stone dust, and gravel, which uses were not incidental or accessory to a primary nursery business and were permissible only with a variance and not as-of-right or by special permit. Pls.' R. App. in Connection with Their Opp.to Defs.' Cross Mot. Summ. J. ("Pls.' Opp. App."), Ex. 1. When the Building Inspector declined enforcement, Plaintiffs appealed to the Board of Appeals.
14. On September 26, 2013, in responding to Plaintiffs' request for zoning enforcement, the Board of Appeals issued a lengthy decision and took notice of a Land Court decision that construed the Zoning Bylaw in relation to a similar nursery and landscaping business operating in a residential district. Lydon, supra, at 256 (holding that a nursery's landscaping business in a residential district could not be authorized by special permit pursuant to the Original Zoning Bylaw). In light of Plaintiffs' 2013 enforcement request and with the Lydon decision in hand, the Board of Appeals concluded that Thayer Nursery could not use the nursery site for commercial landscaping and commercial contracting operations based on prior special permits. Instead, it must seek a variance. Accordingly, the Board of Appeals reversed the Building Inspector's decision and instructed the Building Commissioner to order Thayer Nursery to cease and desist: (1) operating its commercial landscaping and construction business at the property, (2) storing related vehicles and equipment on the property, and (3) selling and storing certain materials as part of its commercial landscaping and construction operations. Pls. Opp. App., Ex. 1.
15. Plaintiffs requested further enforcement action in 2014. The Board of Appeals subsequently issued a second cease and desist order on February 11, 2014, which directed the Building Commissioner to order Thayer Nursery to stop selling imported kiln-dried firewood. Id., Ex. 2.
C. The Nursery Bylaw Amendment and Plaintiffs' Prior Challenge
16. In 2014, the Town adopted the Nursery Bylaw Amendment. [Note 7] The Nursery Bylaw Amendment begins with introductory language as follows:
In a residence zone on a lot or lots on which a landscaping business was being conducted in July 2012, the Planning Board may grant a special permit for landscaping business use on such lot or lots provided that the applicant or applicants or their predecessors in interest on that date held a special permit pursuant to Subsection III.A.7(d) or use variance issued by the Board of Appeals with regard to all or part of any such lot.
Def. Town of Milton Planning Board's App. ("Planning Board Defs.' App."), Ex. 9B.
17. The stated purpose of the Nursery Bylaw Amendment "is to permit the ongoing operations of landscaping businesses, which were in operation on July 2012 and which existed on lots for at least one of which a special permit pursuant to Subsection III.A.7(d) or use variance issued by the Board of Appeals was in force on July, 2012." Id. Further, the Nursery Bylaw Amendment "intend[s] to provide and require enforceable specifics for the layout and operations of each such landscaping business in order to control dust, noise, light and odor, to promote safety, to reduce inconvenience to neighboring residents, and to establish reasonable limits on the amount of infrastructure, equipment and operations." Id. In this vein, the Nursery Bylaw Amendment places various conditions and limits on activities that may take place at such a landscaping business.
18. In November 2014, Plaintiffs filed suit in the Land Court challenging the validity of the 2014 Bylaw Amendment under G. L. c. 240, § 14A, which this court upheld on September 1, 2015 and the appeals court affirmed on August 7, 2017. Compl., Johenning v. Town of Milton, 23 LCR 577 (2015) (Misc. Case No. 14 MISC 487844) (Scheier, J.), aff'd No. 15-P-1438, 2017 Mass. App. Unpub. LEXIS 776 (Mass. App. Ct. Aug. 7, 2017) (issued pursuant to Rule 1:28).
19. In the prior Land Court case, Judge Scheier discussed the background of the Nursery Bylaw Amendment and noted that the amendment process began as a citizens' petition to add "Agriculture/Nursery/Landscaping" as a subsection to Section III of the Original Zoning Bylaw so that landscaping operations could coexist with nursery operations in residential areas with special protections to protect the residential character of the surrounding neighborhoods. This court further noted that the Nursery Bylaw Amendment passed through a series of revisions and public hearings before it was ultimately approved at a Special Town Meeting by the required two-thirds vote. Id. at 578.
20. In its decision upholding Judge Scheier's decision, the Appeals Court concluded that the Nursery Bylaw Amendment "appears to be a permissible legislative response to a judicial decision." Johenning v. Town of Milton, No. 15-P-1438, 2017 Mass. App. Unpub. LEXIS 776, at *7 (Mass. App. Ct. Aug. 7, 2017) (issued pursuant to Rule 1:28). The Appeals Court further noted:
[The] amendment is written to permit the continued operationunder controlled, special-permit conditionsof businesses that had been operating under what, prior to the 2012 Lydon decision, was thought to be a valid permitting process. Contrary to the plaintiffs' claim that the amendment 'destroys the predictable character of the [t]own's residential districts,' the amendment requires that the activities authorized by any special permit be limited to the types and levels of activity being conducted by special permit or variance holders in 2012.
Id. at *67. Further, "we agree with the judge that it was reasonable for the town to determine that 'allowing longstanding local landscaping businesses to continue operating in Milton is in accordance with the public welfare,'" particularly since the "amendment's special permit process allows the planning board to impose conditions on landscaping businesses to protect neighbors from possible adverse impacts, and an initial permit issued under the amendment is valid for only three years or less, with the possibility of renewal for five-year terms." [Note 8] Id. at *78.
D. The 2016 Special Permit and Current Challenge
21. The Oldfield Children completed an application form for a special permit to operate a nursery and landscaping business on May 19, 2016, and filed it together with multiple exhibits on May 24, 2019. Thayer Defs.' App., No. 3. Their application form states as follows: "Applicant" includes "Josh Oldfield and Maggie Oldfield" with the corresponding "Company" listed as "Thayer Nursery." In addition, the application identifies the "Owner" as "Margaret T. Oldfield," with a corresponding "Company" as "Oldfield Family LLC." Id.
22. Plaintiffs' attorney submitted a memorandum to the Planning Board that objected to the special permit application for a number of reasons, including that the Oldfield Family LLC and Thayer Nursery could not satisfy the so-called "eligibility criteria" of the Nursery Bylaw Amendment. Joint Statement, ¶ 8.
23. The Planning Board held public hearings on the application on June 9, June 23, and July 14, 2016. Compl., Ex. A.
24. On July 14, 2016, the Planning Board granted a special permit ("2016 Special Permit"), identifying "Joshua Oldfield, Maggie Oldfield, and Thayer Nursery Corp." as "Applicants." [Note 9] The Planning Board's 26-page decision allowed the Thayer Defendants' landscaping business to continue operating, subject to numerous conditions ("Decision"). The Decision was supported by seven exhibits, lettered A through G. Id.
25. In granting the 2016 Special Permit, the Decision found that the Thayer Defendants were successors in interest to the Oldfield Parents, and that Thayer Nursery operated as a landscaping business in July 2012. Id. The 2016 Special Permit defined the scope of the landscaping business's permissible activities in the following way:
This Special Permit authorizes the Applicants, subject to appropriate terms and conditions set forth herein, to undertake the following activities as a Landscaping Business:
i. Landscape services including design and installation.
ii. Own or lease real and personal property and employ employees for the Landscaping Business.
iii. Own, lease, operate, and store vehicles and equipment for the Landscaping Business.
iv. Sell trees, shrubs, sod, seed, loam, mulch and related material, stone, stone dust, gravel, pagers, timbers, and landscape fixtures needed to implement and for use in a specific landscape design installed by the Landscaping Business.
v. Sell firewood.
vi. Provide snow plowing and snow and ice removal services for third parties, including the Town of Milton.
26. The Decision established 2012 as the benchmark for the level of future activity permitted at Thayer Nursery for future operations. Specifically, the Decision provided: "The level of each activity shall be no greater than the level of that activity existing in 2012 as defined and specified herein." It also imposed numerous conditions in accordance with the Nursery Bylaw Amendment's 19 subparagraphs lettered (a) through(s), each with required submittals, and it mandated seven additional conditions. Finally, the Decision required "strict compliance" with each of these conditions. Compl. Ex. A.
27. Shortly after the Planning Board issued its Decision, Plaintiffs duly filed this suit pursuant to G. L. c. 40A, § 17, challenging the issuance of the 2016 Special Permit.
II. STANDARD OF REVIEW
A court is to grant summary judgment only "where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643644 (2002). The court does not engage in fact finding. Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248 (2010). Where the court is presented with cross motions, as here, the court must view the evidence "in the light most favorable to the party against whom judgment is to enter." Id. at 248 n.4.
Reviewing a special permit on appeal under G. L. c. 40A, § 17 involves a hybrid de novo and deferential standard. The court finds the facts de novo and defers to the local zoning board's legal conclusions within the board's authority. Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). A zoning board decision may not be overturned unless it is "based on a legally untenable ground, or [is] unreasonable, whimsical, capricious[,] or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) (internal quotations omitted). Further, for a court to affirm a board's decision to grant a special permit, the court must "hear the matter de novo and must independently find that each statutory or bylaw condition is met." Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 56 (2005), citing Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 311 (1973).
This blended standard involves a two-step inquiry. First, the court must determine whether the board's decision rests on legally tenable ground, meaning the board has based its decision on standards, criteria, or considerations authorized by the applicable statutes or bylaws and not on an impermissible basis. Britton, supra at 73. "[T]he court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or deny the variance or special permit application." Id. The first inquiry, therefore, is largely a legal one and awards only "'some measure of deference' to the local board's interpretation of its own zoning by-law." Id., quoting APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000).
If a planning board has not applied appropriate standards, criteria, or considerations to reach its conclusion, it is legally untenable and cannot stand. If, on the other hand, the court concludes that a planning board's decision was legally tenable, it must then move to the second inquiry, "which involves a highly deferential bow to local control over community planning." Id. Where a board arrived at a legally tenable decision, the court defers to the board unless the board's action was unreasonable, whimsical, arbitrary, or capricious, meaning that no rational board could have come to the same conclusion based on the facts that the court has found. See S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). This deference awarded to the local board's decision reflects its "special knowledge of 'the history and purpose of its town's zoning by-law.'" Wendy's Old Fashioned Hamburgers, supra, at 381, quoting Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999).
III. DISCUSSION
This case is before the court on cross motions for summary judgment. Plaintiffs filed a motion for summary judgment on October 15, 2018, seeking to annul the 2016 Special Permit. Both sets of Defendants filed their oppositions and cross moved for summary judgment in November 2018. Plaintiffs filed their opposition to the cross motions for summary judgment on December 20, 2018. Three issues are presently before the court: (1) whether the Planning Board's decision is legally untenable because Plaintiffs do not satisfy the eligibility criteria to qualify as operators under the Nursery Bylaw Amendment; (2) whether the Planning Board failed to make sufficient findings as to each of the requisite conditions in the Nursery Bylaw Amendment or otherwise meaningfully apply the requirements in the Nursery Bylaw Amendment, both as to eligibility and as to nursery operations; and (3) whether the Planning Board acted with gross negligence, bad faith, or malice in granting the 2016 Special Permit.
A. As a Matter of Law, the Thayer Defendants Are Eligible for a Special Permit under the Nursery Bylaw Amendment
The first issue before the court is whether the Planning Board's decision is legally untenable, as Plaintiffs contend, because the Thayer Defendants are not eligible applicants for a special permit pursuant to the Nursery Bylaw Amendment. Basic rules of statutory interpretation require the court to start with the plain language of the bylaw, giving words their ordinary meaning. See Bynes v. School Comm. of Boston, 411 Mass. 264 , 268 (1991). Courts may also consider legislative history to discern legislative intent. Kobrin v. Gastfriend, 443 Mass. 327 , 335 (2005) ("Statutes are to be interpreted not based solely on simple, strict meaning of words, but in connection with their development and history. . . ."), quoting Quincy City Hosp. v. Rate Setting Comm'n, 406 Mass. 431 , 443 (1990) (internal quotations omitted).
Here, both the plain language of the Nursery Bylaw Amendment and its history support the grant to the Thayer Defendants. In challenging the eligibility of the Thayer Defendants, Plaintiffs focus on certain language that appears in the introductory paragraph of the Nursery Bylaw Amendment:
In a residence zone on a lot or lots on which a landscaping business was being conducted in July 2012, the Planning Board may grant a special permit for landscaping business use on such lot or lots provided that the applicant or applicants or their predecessors in interest on that date held a special permit pursuant to Section III.A.7(d) or use variance issued by the Board of Appeals with regard to all or part of any such lot.
The Decision concludes that the Thayer Defendants satisfied these requirements. Specifically, the first page of the Decision states:
Applicants are successors in interest to Robert C. Oldfield and Margaret T. Oldfield who held a special permit under the provisions of Section III.A.7.d dated January 9, 1967 as amended by a decision dated August 7, 1987. (Attached as Exhibit B) Applicants are thereby entitled to apply for a Landscaping Business Use permit.
Later in the Decision, after discussing the purpose of the Nursery Bylaw Amendment, the Planning Board writes: "Thayer Nursery operated such a landscaping business, and the operators held a special permit as required." Compl., Ex. A.
Based on the record before me, I find that the Planning Board meaningfully applied the eligibility provisions of the Nursery Bylaw Amendment and that the Oldfield Children and Thayer Nursery are proper holders of a special permit under the Nursery Bylaw Amendment. The Planning Board reasonably concluded that a landscaping business operated on the property in July 2012 and that, as of July 2012, the "applicants or their predecessors in interest on that date held a special permit pursuant to Subsection III.A.7(d) or use variance issued by the Board of Appeals with regard to all or part of any such lot." In so concluding, the Planning Board had before it affidavits signed by the Oldfield Children affirming that Thayer Nursery operated in July 2012 with 19 employees. The Decision reviewed the types of activities included in the definition of "landscaping business," and it specified those that took place at Thayer Nursery in 2012. It further identified the Oldfield Children as employees under the landscaping and nursery operations during that time. Compl., Ex. A. The record also indicates that the Planning Board was familiar with the Oldfield family, recognizing that the Oldfield Children are the children of the Oldfield Parents, and therefore, Joshua and Margaret Jr. had the benefit of the prior permits and amendments for the site. It understood that while the original 1967 Special Permit had been issued to the Oldfield Parents personally, the 1987 Amendment was explicitly extended to include the Oldfield Children.
To stay true to the 1987 Amendment and ensure continued operation and personal responsibility by the Oldfield family, the Decision included provisions to protect against unapproved transfers and to preserve the Oldfield Children's liability. Specifically, the transfer provision states:
In the event that the Property and/or Landscaping business shall be transferred to a third party and said third party shall seek to continue [its] operation . . . then a new application shall be required under the provisions of Subsection N, provided that the third party shall meet the criteria for an Applicant.
Further, the Decision made all applicantsthe Oldfield Children and Thayer Nurseryjointly and severally liable for any special permit violations. It also required that one of the Oldfield Children (as operators) or one of their authorized representatives be on site during business hours to address any complaints. These provisions add protections to guard against a third party from purchasing Thayer Nursery and continuing to operate the landscaping business under the 2016 Special Permit, which was a fear that Plaintiffs expressed at oral argument. Should the Oldfield Children sell Thayer Nursery, the third party would need to seek a new special permit.
In arguing that the Planning Board's conclusion was in error, Plaintiffs attempt to rewrite or reframe the Nursery Bylaw Amendment and create their own set of "eligibility criteria." Plaintiffs contend that each of the applicants must individually satisfy all of the terms of qualification. [Note 10] It is not necessary to rewrite the eligibility requirements, however, because the language itself is quite clear. I address each of Plaintiffs' various arguments below.
Plaintiffs first contend that the Thayer Defendants were ineligible for the special permit because the Oldfield Children and Thayer Nursery do not own a fee interest in the property on which Thayer Nursery operates. Plaintiffs read an ownership requirement into the Nursery Bylaw that is inconsistent with its plain language and legislative history. There is no indication that the Nursery Bylaw Amendment, either in on its face or in its history, is intended to apply only to lot owners.
To the contrary, the plain terms of the Nursery Bylaw Amendment indicate that a leasehold interest in land is sufficient. The definition of a landscaping business and permissible activities as set forth in the Nursery Bylaw Amendment, Section III.N.2 contemplates a leasehold interest: "[t]he landscaping business may own or lease real and personal property, employ employees and may be authorized by special permit to own, lease, operate, and store vehicles and equipment reasonably necessary for business operations." (Emphasis added).
Further, the definition of "Operators of a Landscaping Business," as set forth in Subsection N.7 (c), provides: "Operators [of the landscaping business] shall have an ownership or leasehold interest in the business premises." (Emphasis added). Further, Subsection N.3 provides: "As used in this Subsection a lot shall be deemed to include all contiguous lots . . . under common ownership or lease." (Emphasis added). Subsection N.4 (b) requires that applicants for special permit submit "deeds and leases to the site." (Emphasis added). It is clear, therefore, that the Nursery Bylaw Amendment permits applicants to have either a fee or leasehold interest in the land used as a nursery. Case law also supports this conclusion. See Brady v. City Council of Gloucester, 59 Mass. App. Ct. 691 , 694 (2003) ("As a general principle, an applicant for zoning relief need not always be the owner of the property in question, so long as the applicant has an interest in the property that warrants consideration."). [Note 11]
Here, Thayer Nursery holds a lease to all lots on which it operates, including two that are owned by the Oldfield Children. Thus, Thayer Nursery and its operators, the Oldfield Children, hold the requisite property interest in these residentially zoned lots. Indeed, Subsection N.7 (c), provides that the "landscaping business shall be operated by the applicant(s) for the Special Permit or for amendment of the Special Permit." The Oldfield Children, as the operators of Thayer Nursery, are exactly the type of applicants that Nursery Bylaw Amendment anticipates, as the Planning Board found.
Plaintiffs also argue that the Oldfield Children are not proper special permit holders because they have not personally operated the nursery business since 2012. In so arguing, Plaintiffs mistakenly focus on the terms of the 1967 Permit, instead of the language of the Nursery Bylaw Amendment itself. Plaintiffs are correct to point out that the 1967 Permit ran only to the Oldfield Parents personally and could not be assigned. [Note 12] It does not logically follow, however, that the personal restrictions in the 1967 Special Permit preclude the Oldfield Parents from being the "predecessors in interest" to the Oldfield Children under plain language of the Nursery Bylaw Amendment. Plaintiffs also believe it fatal that Thayer Nursery is named as an applicant on the 2016 Nursery Special Permit, but that Thayer Nursery did not itself hold the requisite special permit or variance in July 2012. Plaintiffs do not explain why Thayer Nursery would nevertheless not be entitled to operate through the Oldfield Children, as it had under the Oldfield Parents since 1967.
Plaintiffs' narrow reading of the Nursery Bylaw Amendment also disregards legislative history. Following a citizens' petition in support of continued operations at Thayer Nursery, Town Meeting voted to enact the Nursery Bylaw Amendment, a brand new and comprehensive zoning bylaw governing nursery businesses that operate in residential districts. Both the 1967 Special Permit and 1987 Amendment were appended to the Decision, demonstrating that the Planning Board was well acquainted with the management, governance, activities, and scope of the operations on the property. Simply put, Thayer Nursery has been run as a family business for decades, first by the Oldfield Parents and now by their children, all under the auspices of the Thayer Nursery name. [Note 13] While the Oldfield Children have since taken over Thayer Nursery's operations, the same "esteemed" family, as noted in the 1987 Amendment still runs the same business. As operated by the Oldfields, Thayer Nursery appears to be exactly the type of nursery and landscaping operation that the Nursery Bylaw Amendment was created to protect. [Note 14] See § III.N.1. This history with the Oldfield family, Thayer Nursery, and the Nursery Bylaw Amendment extinguishes any ambiguity in the plain language.
Even if the plain language and legislative intent of the Nursery Bylaw Amendment were not clear, the Planning Board's interpretation is entitled to some deference. Wendy's Old-Fashioned Hamburgers of New York, Inc., supra, at 381382; Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997); see also Duteau, supra, at 669 ("[A]lthough interpretation of the by-law is in the last analysis a judicial function, deference is owed to a local zoning board's home grown knowledge about the history and purpose of its town's zoning."); Askew v. Seidman, 23 LCR 582 , 586 (2015) (Misc. Case No. 14 MISC 485941) (Sands, J.).
Here, the Planning Board evaluated the Thayer Defendants' eligibility for a special permit under the Nursery Bylaw Amendment's background and in the context of Thayer Nursery and the legislative history. As such, I give due deference to the Planning Board's interpretation of the Nursery Bylaw Amendment and its reasonable conclusion that the Thayer Defendants were intended and eligible applicants for a special permit, so long as their application satisfied the requisite terms and conditions. Planning Bd. of Pepperell v. Zoning Bd. of Appeals of Pepperell, 17 LCR 420 , 424 (2009) (Misc. Case No. 382135) (Trombly, J.) ("[E]ven if reasonable minds could differ over the construction of . . . the Zoning By-Law, the Zoning Board of Appeals . . . interpretation of the By-Laws was reasonable and, therefore, must be given deference."). Given the discretion owed to local zoning boards, this court may not disturb the Planning Board's legally tenable and reasonable decision finding the Oldfield Children and Thayer Nursery were eligible as a matter of law to apply for the 2016 Special Permit.
B. The Planning Board Meaningfully Applied the Bylaw Conditions and Made Sufficient Findings in Granting the 2016 Special Permit
Plaintiffs argue that the Planning Board did not meaningfully apply the Nursery Bylaw Amendment to the Thayer Defendants' application or make sufficient findings to support issuance of the 2016 Special Permit. Plaintiffs contend that the Planning Board's issuance of the Special Permit was unreasonable, whimsical, and arbitrary, and that the Planning Board acted with gross negligence, in bad faith, or with malice. Plaintiffs also argue that the Decision was conclusory in nature and failed to adequately explain how granting the special permit does not cause substantial detriment to the public good or derogate from the intent of the Zoning Bylaw.
When granting a special permit, the local zoning board "must set forth the reasons for its decision that proposed development meets the applicable statutory and bylaw standards." Sheehan, supra, at 5556. Section 15 of G. L. c. 40A requires that a board create "a detailed record of its proceedings . . . setting forth clearly the reasons for its decision and of its official actions. . . ." The board must "make an affirmative finding as to the existence of each condition of the statute or by-law required for the granting of the variance or special permit." Vazza Properties, supra, at 311. While the decision may contain some conclusory statements, the totality of the decision sufficiently supports each condition of the Nursery Bylaw Amendment and the general Zoning Bylaw provisions regarding special permits in Section IX.C. See Tebo v. Board of Appeals of Worcester, 22 Mass. App. Ct. 618 , 621 (1986) ("By their nature, the detailed conditions imposed by the zoning board do double duty as findings that the special permit applied for might be exercised in harmony with the general purpose and intent of the zoning by- law, as the statute requires.").
1. Purpose and Structure of the Nursery Bylaw Amendment
The stated purpose of the Nursery Bylaw Amendment's is:
to make the physical layout and the day-to-day operations of each such landscaping business reasonably compatible with the interests of abutters and nearby residents and their rights to reasonable quiet and enjoyment of their properties [and] to provide and require enforceable specifics for the layout and operations of each such landscaping business in order to control dust, noise, light and odor, to promote safety, to reduce inconvenience to neighboring residents, and to establish reasonable limits on the amount of infrastructure, equipment and operations.
To accomplish this goal, the Nursery Bylaw Amendment contains numerous detailed requirements for landscaping businesses to obtain a special permit to operate in residential neighborhoods, as enumerated in 19 subsections lettered (a) to (s). For the reasons more fully discussed below, I conclude that the Board diligently applied these provisions to ensure the harmonious coexistence of Thayer Nursery's businesses within its residential neighborhood. The Decision systematically considered each of the subsections and addressed each in turn, with detailed requirements and reference to the Thayer Defendants' application. Additionally, the Planning Board went beyond the Nursery Bylaw Amendment's minimum requirements and imposed several supplemental terms, conditions, and requirements to further ensure a harmonious balance between the landscaping operations and the residential character of the neighborhood. In more than one instance, the Planning Board mandated "strict compliance" with the 2016 Special Permit's terms, conditions, and requirements, and it established a complaint procedure. Should Thayer Nursery violate a condition, therefore, any aggrieved neighbor would have a clear set of procedures about how to seek enforcement to abate the problem.
Additionally, to manage growth, the Nursery Bylaw Amendment requires that nursery and landscaping businesses maintain a level of activity no greater than in 2012. Specifically, it required benchmarks for a range of activities, which could be used for any necessary enforcement. Compl., Ex. A. For instance, as to the number of employees, the Decision concluded (based on the Oldfield Children's affidavits submitted with the special permit application) that Thayer Nursery had 19 employees in July 2012, including Joshua, Margaret Jr., and 17 others, with job descriptions by category. The Decision then prohibited expanding that number for future operations. [Note 15] Likewise, the Thayer Defendants included an affidavit attesting to the quantities of materials delivered and sold by Thayer Nursery in 2012 (NutriMulch, Hemlock mulch, Playground chips, Loam, and the like), and the Decision forbid them from purchasing or selling more of these materials than the attested 2012 quantities. Another benchmark was established based on the number and type of vehicles at Thayer Nursery in 2012: the Thayer Defendants provided an attested List of Vehicles by type with their application, which became the fixed quantity of vehicles for future operations.
2. Nineteen Specific Requirements for Landscaping Business Use
The Nursery Bylaw Amendment requires that all applications for special permits include 19 submittals for Planning Board review and approval. These include: (a) Existing Conditions Plans, (b) Deeds and Leases, (c) Wetlands Delineation Plans, (d) Drainage Plans, (e) Landscape Plans, (f) Operations Plans, (g) Parking Plans, (h) Building Plans, (i) Lists of Business Activities, (j) Mitigation Plans, (k) Lighting Plans, (l) Street Improvement Plans, (m) Signs Plans, (n) Lists of Vehicles, (o) Lists of Rules, (p) Firewood Plans, (q) Snow and Ice Removal Plans, (r) Sales Plans, and (s) Christmas Trees and Holiday Materials Plans. See § III.N.4(a)(s). [Note 16] These submittals "shall be enforceable as part of the special permit." Id.
The summary judgment record demonstrates that the Planning Board received all of these required submittals and gave them more than adequate consideration. Based upon my review, as discussed at length in below, I find that the Planning Board meaningfully applied the requirements of the Zoning Bylaw and provided detailed and well-reasoned findings. The lengthy Decision does far more than parrot the regulatory phrases from the Nursery Bylaw Amendment. To the contrary, the Decision is fully supported by facts in the record, detailed findings, and conditions. GPH Cohasset LLC v. Trustees of Reservations, 21 LCR 290 , 297 (2013) (Misc. Case No. 11 MISC 446618) (Sands, J.) (upholding special permit where multitude of conditions in approval decision are evidence that planning board gave more than cursory attention to proposed project). The record supports the Planning Board's decision to issue the 2016 Special Permit.
a. Existing Conditions Plan. First, Paragraph 4 (a) requires applicants to submit a plan showing "the existing site topography, buildings, structures, utility services, water and sewer lines, wells, drainage infrastructure, driveways, landscape, natural features, and areas of use." With their application, the Thayer Defendants submitted nine sheets of plans (collectively, "Site Plan") prepared by registered professional engineers and land surveyors. The Site Plan includes, among others, an Existing Conditions & Demolition Plan, a Proposed Conditions Plan, an Existing Conditions Watershed Map, a Proposed Watershed Map, and Truck Turning Movement Plans. As found by the Planning Board, these plans satisfy Paragraph 4 (a). Appended to the Decision as Exhibit A is the Site Plan.
b. Deeds and Leases. Next, pursuant to Paragraph 4 (b), the Thayer Defendants were required to submit copies of all deeds and leases showing their interest in the premises proposed for landscaping use. The Planning Board had before it eight deeds and leases submitted by the Thayer Defendants, showing those property interests, as required by Paragraph 4 (b). Those deeds and leases, appended as Exhibit C to the Decision, establish that Joshua and his wife own 217 Hillside Street; Margaret Jr. and her husband own 237 Hillside Street; and Oldfield Family LLC owns the remaining three properties at 270 Hillside Street, 0 Forest Street, and 24 Forest Street; while Thayer Nursery holds a lease to each of these properties from the respective owners.
c. Wetlands Delineation Plan. The Planning Board reasonably concluded based on the Site Plan that no wetlands exist on the Thayer property. Plaintiffs do not contest this determination.
d. Drainage Plan. Paragraph 4 (d) requires that applicants submit a drainage plan showing "provisions for drainage and drainage infrastructure for the effective control of stormwater, and insofar as reasonably possible, its retention on site." The Planning Board had before it extensive documentation prepared and stamped by a professional engineer regarding the Thayer Defendants' drainage plan. These included an Existing Conditions Watershed Map and a Proposed Watershed Map prepared by engineers at DeCelle-Burke & Associates ("DBA") showing elevations, drainage structures, test pit soil data and the like. The submittals also included a letter from DBA dated September 21, 2015, with stormwater runoff calculations pre- and post-site improvement, wherein DBA advises that it has reviewed comments from a peer-review engineer and incorporated those comments into its final Stormwater Operation and Maintenance Plan ("Stormwater Plan"). The Stormwater Plan includes ongoing commitments for inspection and maintenance and a checklist for record-keeping purposes.
Notably, the Nursery Bylaw Amendment also includes a performance specification, mandating that drainage for Thayer Nursery not harm neighboring properties by causing adverse drainage impacts, increased water flows, or by creating ponding. Any such adverse drainage impacts would trigger a violation of the special permit. In approving the drainage plan, the Decision emphasized that the performance standards in the Stormwater Plan are enforceable requirements of the special permit, and imposed additional conditions to ensure satisfactory performance and protect the neighborhood. For instance, the Thayer Defendants must submit an annual report to the Town Engineer documenting the maintenance of the system, as well as engage a stormwater engineer to provide written reports to both the Planning Board and Town Engineer at 12 and 24 months following the system's installation. I find that that the level of detail in Thayer Nursery's required drainage plan submittal more than satisfies Paragraph 4 (d), and the Planning Board reasonably approved this submission. I also note that Plaintiffs have not alleged any concern about actual drainage or flooding impacts on their property, nor have they contested the engineering analysis contained in the submittals.
e. Landscape Plan. Paragraph 4 (e) requires a landscape plan that illustrates attractive landscaping along lot lines designed to buffer major sources of noise (with sound-buffering walls or fences appropriately sited with landscaped vegetation on both sides, as necessary) and to similarly control dust, as well as any other landscaping on the property. The plan must specify the species and size of plants and include specifications for fences, walls, and sound buffering landscape structures. Paragraph 4 (e) also mandates fences and walls must be at least 15 feet from lot lines and landscaping, within 30 feet of lot lines.
The Proposed Conditions Plan submitted as part of the Site Plan meets each of these requirements. According to the Site Plan, an eight-foot-tall steel fence with "sound attenuating material" will be constructed along the southeast portions of the property 15 to 30 feet from the lot line, with gates for site access. Details on the fence structure and soundproofing are also included on the accompanying Construction Details Plan. In addition to the new steel fence, the Proposed Conditions Plan illustrates an existing "Deer Fence" along the northeastern edge of the property that is to remain, and a stone wall that hugs most of the property's perimeter. An additional stone wall along the northeastern "Nursery Stock" is to be extended slightly, as well. The Proposed Conditions Plan also depicts extensive vegetation to be planted around the edges of Thayer Nursery that abut neighboring properties, including, for instance a "variety of Norway, White, and Blue Spruces 20' apart and 10' off lot line," as well as some deciduous trees. With these measures in place to protect against noise and dust and provide an attractive installation, it was reasonable for the Planning Board approve the applicants' landscaping plan. Here again, Plaintiffs do not advance that any specific characteristics of the landscaping plan are deficient.
f. Operations. The sixth required submittal addresses operations. Pursuant to Paragraph 4 (f), applicants must submit a plan that shows "the driveways, the loading and unloading areas with specification for the on-site vehicular movements of trucks and other equipment used on site." This provision also establishes dimensional requirements for these activities, such as driveways and loading areas being set back from property lines at least 20 and 30 feet, depending on the type of activity. Finally, the operations plan must "provide for safe and convenient movements of vehicles on-site, minimizing idling equipment, back-up movements, noise and dust," and specify loading procedures, as well as hours of operation for any other noisy equipment.
Thayer Nursery's operations are depicted within the Site Plan submittal on the Proposed Conditions Plan, Truck Turning Movement Plan (In) and Truck Turning Movement Plan (Out). These plans illustrate the movement of trucks in and out of the property via Forest Street, as well as the loading area functions. As required, loading areas are located 40 feet from the property line and the driveways appear to be at least 20 feet from property lines. I find that with these detailed plans in place, and in the absence of any specific complaint or concern stated by Plaintiffs, the Planning Board reasonably approved the operations plan, and put in place supplemental rules for on-site vehicular movement, loading and deliveries with reference to the permitted hours of operation.
g. Parking Plan. Next, Paragraph 4 (g) requires applicants to submit a parking plan that "show[s] the parking spaces for customers, employees, trucks when not in use, and other vehicles when not in use and shall show the storage space for other equipment," including garages and their layouts. The parking plan must also contain "a reliable analysis of the number of parking spaces needed for business operations."
The Proposed Conditions Plan contains the requisite information to satisfy the parking plan requirements. The plan provides 34 parking spaces (116 are to be used for customers, spaces 1724 are to be reserved for employees, and spaces 2534 are to be set aside for parking of equipment and vehicles when not in use), based upon an analysis utilizing industry standard parking generation tools.
h. Building Plans. This plan, required by Paragraph 4 (h), must show "all business buildings, storage bins, dumpsters and other business structures, including dimensions, square footage, location, setbacks from lot lines, elevations, utilities, and specification of the business uses to which interior spaces will be put." The Existing Conditions Plan and the Proposed Conditions Plan submitted by the Thayer Defendants depict the requisite business buildings, storages bins, dumpsters, and other business structures, along with their square footage, heights, and distances from lot lines. The Planning Board reasonably approved the building plans and prohibited the expansion of any existing structure or the creation of a new structure beyond those approved by the 2016 Special Permit.
i. List of Business Activities. Paragraph 4 (i) mandates submission of a complete list of the types of business activities from among the range of permissible activities included in the Nursery Bylaw Amendment. Paragraph 4 (i) also requires a description of each activity and the anticipated use of site facilities, together with the expected activity extent, times, and dates. The Decision establishes the list of activities permissible at Thayer Nursery and includes a handy chart to delineate the operation hours and days of the week for each of the various activities, such as sales, loading, use of noisy equipment, deliveries to and from the property, emptying dumpsters, and power-washing vehicles. Accordingly, I find the Decision satisfies the requisite terms.
j. Mitigation Plan. The tenth required submittal is a mitigation plan, pursuant to Paragraph 4 (j), that must "specifically identify the likely sources of noise, dust and odors and specify effective measures to be taken to reduce and control each source . . . and prevent adverse impacts on nearby residents." In addition, the applicant must provide a description of operational measures to be taken to accomplish mitigation, as well as physical changes designed to mitigate impacts. The Decision addresses these concerns with mitigation measures to include fencing, vegetation, requirements for storage and loading of material. It also provides for dust control and restrictions on location and quantity of material. The Decision further points out to other provisions in the Decision that mitigate the impacts of stormwater runoff and lighting glare and satisfy the Thayer Defendants' obligation to identify mitigation measures. For instance, lighting mitigation is addressed immediately below.
k. Lighting Plan. The mandated lighting plan, pursuant to Paragraph 4 (k), must "show all exterior lighting which shall be designed to provide reasonably necessary lighting while minimizing light overspill onto the neighboring properties and adjoining streets." Additionally, this provision of the Nursery Bylaw Amendment requires that light fixtures on the premises "be appropriate to a residential neighborhood."
Here, the Thayer Defendants submitted a Proposed Conditions Plan and Photometric Plan by Boston Light Source (within the Site Plan submittal), showing the locations of exterior lighting and identifying the lighting fixtures to be used. To minimize light overspill onto the neighborhood, the Decision put in place the following rigorous conditions: (1) exterior lights must be directed downward with covers to shield the lamps so that "the lamps shall not be visible off-site"; (2) all lights must be turned off at the close of business each night, except those necessary for safety reasons; and (3) security lighting requires Planning Board approval and must employ the lowest possible levels. Notably, here again, Plaintiffs have not taken issue with the Lighting Plan, nor do they offer expert testimony or other evidence of any adverse impact.
l. Street Improvement Plan. For this required submittal, applicants must identify whether truck traffic can adequately access the business and "propose street improvements to be provided at applicant's expense to permit safe access by trucks without damage to the street shoulders or adjoining property." Here, the Thayer Defendants satisfy this requirement by including, within the Site Plan, an engineered Truck Turning Movement Plan that depicts a proposed hard-pack shoulder along Forest Street to improve truck access. In addition, the Decision once again strengthens protection for the neighborhood by mandating that any damage be repaired and restored within two weeks of a request by the Town or abutter.
m. Signs. This submission must specify "[t]he location and description of any signs advertising the business. . . ." Three existing signs are depicted on the Existing Conditions Plan and the Proposed Conditions Plan included with the Thayer Defendants' Site Plan. The Decision provides further protection by mandating that all signs must be approved, erected, and maintained in accordance with the general Zoning Bylaw and Town regulations.
n. List of Vehicles. Paragraph 4 (n) utilizes 2012 as the benchmarking year and puts measures in place to ensure compliance. The Nursery Bylaw Amendment requires applicants to submit a list of vehicles (by number and type) that were in use on July 1, 2012, and must justify any need for any increase in number of vehicles or change in vehicle type (any new acquisitions shall ensure quiet operation). To comply with this Paragraph, the Decision lists 19 vehicles identified by the Thayer Defendants that were in use at Thayer Nursery on July 1, 2012. The list identifies each vehicle by make, model and year, together with a description of how each vehicle is predominantly used (for instance, a 2002 Chevy Silverado pickup, used predominantly for making sales calls and deliveries for Nursery/Landscaping operations). The Decision prohibits new vehicles from being leased, rented, or purchased. Vehicles can be replaced only on a "vehicle-by-vehicle basis with vehicles that are similar in size, type and capacity and equal to or better in noise and pollution emissions from those they replace." Accordingly, I find that the Decision adequate on this requirement.
o. Rules. Pursuant to Paragraph 4 (o), applicants must submit proposed rules "to ensure that vehicles and equipment are shut off and not left idling when not in use and that employees do their work efficiently and quietly." The Decision sets forth 13 specific rules for vehicular operations to reduce noise. For instance, no loudspeakers or amplified music may be used, and employees may use radios or music players only with earphones. Additionally, vehicles are required to have quality mufflers installed; vehicles may not idle unattended at any time, and even when attended, idling cannot persist for more than five minutes at a time; backup alarms shall either be deactivated or set on their lowest settings; and certain loud equipment may not be conducted outside of permitted hours. These rules reflect the Planning Board's careful consideration of the potential noise impacts on the neighboring community and its conscious effort to minimize these impacts in accordance with Paragraph 4 (o).
p. Firewood Plan. Applicants seeking to sell firewood must include a plan that "show[s] the specifics of and procedures for firewood operations, including safe and reasonably quiet deliveries to the landscaping business, safe storage of firewood inventory by the business and safe and reasonably quiet loading of trucks making deliveries of firewood to customers." Paragraph (p) also forbids firewood operations from creating "any significant dust or odor impacts."
The Decision reflects careful consideration of firewood concerns. It utilizes 2012 as the benchmark year for firewood operations, imposing limits for sales quantity, deliveries to and from the property, and firewood loading. Based on affidavits from the Oldfield Children included with the 2016 Special Permit application, firewood sales may not exceeded 1,000 cords annually. The Decision also restricts the time for delivery and loading of firewood, including hours of the day and days of the week. Further, the Decision includes precautions to limit noise, such as requiring that trucks are hand loaded at certain times and that Thayer Nursery line its dump trucks "with SportFloor Stamina Performance Rubber Flooring to prevent excess noise during loading."
q. Snow and Ice Removal. Applicants offering snowplowing or snow and ice removal services must provide specific procedures for the "safe and reasonably quiet equipping, loading and dispatch of trucks and [necessary] on-site activities . . . including storage of equipment and materials." In the Decision, the Planning Board limited snow and ice removal operations at Thayer Nursery to 2012 activity levels, thus limiting number of vehicles and employees, consistent with levels indicated in the Oldfield Children's affidavits submitted with the special permit application. The Decision articulates procedures for managing noise for loud equipment, limits on the hours and days of the week that equipment may be operated and serviced (with exceptions for emergency repairs and operations during storm events), and limits on idling and lighting. These findings, too, are adequate.
r. Sales Plans. Paragraph 4 (r) again utilizes 2012 benchmarking, and mandates that sales operations must not be materially different in extent or manner from 2012 sales at Thayer Nursery. It also restricts the hours of sales operations: on Monday through Saturday, the sales office may operate between 7:00 A.M. and 6:00 P.M., and on Sunday, between 9:00 A.M. and 6:00 P.M. In accordance with these requirements, the Decision authorizes Thayer Nursery to operate its sales office during the above times and requires that records of its sales operations be maintained to ensure compliance with 2012 levels. The Nursery Bylaw Amendment also permits the Planning Board to place further reasonable limits on these hours or activities if the need arises.
s. Christmas Trees and Holiday Materials Plan. Selling Christmas trees, pumpkins and other holiday materials also requires a plan. Because Thayer Nursery does not seek to sell holiday materials, no such plan was necessary.
3. Seven Supplemental Requirements for Thayer Nursery
In addition to the 19 enumerated submittal requirements in Subsection N.4 (plans, rules and specifications), the Nursery Bylaw Amendment mandates in Subsection N.7 that special permit applicants must address seven supplemental terms, conditions, and requirements. These include (a) Storage, Loading, and Unloading of Materials; (b) Storage of Fertilizer; (c) Operators of a Landscaping Business; (d) Vehicles; (e) On-site Traffic, Loading, and Deliveries; (f) Outside Truck Traffic; and (g) Dumpsters. [Note 17] A number of these supplemental requirements overlap, expand on, or correlate with the 19 Subsection N.4 submittals above. Upon review of documentation submitted by the Thayer Defendants and as discussed below, I find that the Planning Board thoroughly and effectively addressed each of these supplemental requirements in its Decision.
a. Storage, Loading and Unloading of Materials. The first of these supplemental terms contains multiple requirements to guard against unreasonable noise and odors related to storing, loading, and unloading materials. Specifically, Paragraph 7 (a) calls for landscaping businesses
to have suitable storage facilities for safe storage of non-perishables (like mulch, loam, stone, stone dust, and gravel), with effective measures in siting and use to lessen the effects of dust, odor, and noise on nearby properties. For instance, dusty or odorous materials are to be covered or enclosed. Storage facilities must also be located at least 40 feet from lot lines and buffered with vegetation and noise-reducing walls and fences. Procedures for loading materials must be safe, efficient, and reasonably quiet.
The Decision provides detailed requirements for the storage of bulk agricultural and earth materials. These materials must "be properly stored in three-sided contained bins . . . set back at least forty-five (45') [feet] from the southerly property line as shown on the Site Plan and shall be built with stone or concrete blocks or similar materials." The Decision goes on to specify the maximum number of bins to be located in various areas of the property and the maximum dimensions for those bins, as well as the capacity of each bin. To control dust, odors, insects, and vermin, the Planning Board requires that these bins be watered regularly and covered if necessary: "If stored materials transfer dust or odors to adjoining properties, the amounts stored shall be reduced by twenty-five percent (25%) and measures taken to prevent any further transfer of unreasonable dust or odors." Additional 25% reductions must be made as necessary until the problem resolves. It also includes time and place restrictions on loading and unloading of materials are included, as well as compliance with specified Commonwealth regulations. In imposing this series of conditions, the Planning Board took reasonable measures to safeguard surrounding residents from noise, dust, odor, and pests associated with storing the landscaping business materials.
b. Storage of Fertilizer. Paragraph 7 (b) requires suitable storage facilities for fertilizer, other chemical products, fuel, and oil used in landscaping business activities, with siting and use limitations to avoid and remediate spillage and to prevent any fertilizer or chemical product from becoming airborne. In turn, the Decision requires that fertilizer storage must occur at least 35 feet from neighboring lot lines and be consistent with best practices, regulations, and instructions. It also prohibits underground storage tanks. Spillage must be reported and cleaned up promptly as applicable standards, directions, and best practices require. The Decision appropriately addressed each of these elements.
c. Operators of a Landscaping Business. These supplemental requirements place substantial and specific responsibilities on operators and, as implemented, clarify and confirm that the Oldfield Children are appropriate operators under the Nursery Bylaw Amendment. Paragraph 7 (c) mandates that landscaping businesses must be operated by the named applicants for the special permit. It further requires that these operators shall have an ownership or leasehold interest in the business premises and shall be responsible for ensuring compliance with all requirements, terms, and conditions of the special permit. Moreover, Paragraph 7 (c) mandates that the operator or an authorized representative be on site during regular business hours, promptly cure any complaints based on noncompliance, and take steps to prevent violations from recurring.
The Decision names applicants Joshua and Margaret Jr. as operators of Thayer Nursery and charges them with these responsibilities. As discussed above in Part III.A, I find that the Thayer Defendants satisfy the requirement that the operators must own or lease the property on which the landscaping business operates.
d. Vehicles. Next, Paragraph 7 (d) limits vehicles to the number and types in use in 2012 and mandates vehicle maintenance and operations measures to protect abutters. The Decision satisfactorily references the itemized vehicle list in Paragraph 4 (n) of the Decision, and the
comprehensive set of rules for vehicle operations, maintenance, and storage requirements in Paragraph 4 (o).
e. On-site Traffic; Loading; Deliveries. As a fifth supplemental term, Paragraph 7 (e) mandates operational requirements for on-site vehicles (deliveries, loading and on-site operations). These include limited hours of operation and require "enforceable procedures" for on-site traffic, loading activities, and deliveries. If deliveries occur outside of the allowable hours of operation, the landscape business must maintain a log stating the type and time of delivery, as well as the reason why a delivery was made afterhours. This log must be available for public inspection.
The Decision satisfies each of these operational requirements. It mandates that Thayer Nursery maintain a delivery log, which must be kept on site in the Sales Office and available for review upon request. Loading and Direction of Travel requirements are established by reference to Paragraph 7 (a) above, while also prohibiting truck idling on public streets and requiring deactivation of back-up alarms.
f. Outside Truck Traffic. Paragraph 7 (f) includes supplemental requirements for outside truck traffic and access to the property. The Decision satisfies these supplemental requirements with practical and concrete terms for truck operations, such as specifying a delivery path for all trucks to and from Thayer Nursery, providing delivery drivers with a standard set of delivery directions, including direction that idling and parking on public roads are forbidden.
g. Dumpsters. Supplemental terms for dumpsters at Paragraph 7 (g) protect against odors, noise, and pests, as well as preserve a slightly appearance. For instance, provisions require screening dumpsters with fencing or landscaping. They also limit hours for moving or emptying dumpsters and mandate that associated noise be kept low. Equipment used with dumpsters must be maintained in good condition without dust or odors. The Decision satisfies these terms by imposing six conditions to protect neighbors from offensive odors, noise, and pests. For instance, dumpsters may not "emit unreasonably offensive odors and shall be free from any insect or vermin infestation." Further, the dumpster must be covered, employee food waste must be bagged, and no dumping is permitted after 6:00 P.M.
4. Section IX.C Special Permit General Requirements
Plaintiffs also contend that the Planning Board made no affirmative finding in its Decision that addressed how or why the grant to the Thayer Defendants is in the best interests of the Town or will cause no detriment to the public good. The pertinent provision of the Nursery Bylaw Amendment at Section N.8 states:
[T]he Planning Board may grant a Special Permit for Landscaping Business Use where it finds compliance with the purpose of this Subsection and with all of the foregoing terms, conditions, standards and requirements and finds that the landscaping business use will not cause any substantial detriment to the neighborhood or to the intent of the bylaw. A special permit may be made subject to such terms and conditions as the Planning Board may find necessary or appropriate.
In addition, the general Zoning Bylaw provisions at § IX.C, "Special Permits or Other Permits," require that the applicant demonstrate that the special permit "may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of this bylaw." To fulfill these broad mandates and "safeguard the legitimate use of the property in the neighborhood and [assure] the health and safety of the public," the Board of Appeals may impose conditions and limitations as appropriate. See Lydon, supra, at 254255.
I find that the Nursery Bylaw Amendment established a comprehensive framework to protect the residential neighbors in which landscaping businesses operate. That framework begins with limiting eligible operators to those known to the Town and the community, specifically, those landscaping operators who had been doing business since at least July 2012. To further ensure no substantial detriment to the public good, the Planning Board included transfer safeguards in its Decision. The 2016 Special Permit is not transferable to third parties, in recognition of statements in the 1987 Amendment that the Oldfield family is respected in the community. Instead, the Decision mandates that a new owner seek a special permit if they intend to continue operating a landscaping business at the property. To further ensure personal involvement and responsibility of the Oldfield Children, the Planning Board made all applicants jointly and severally liable for special permit violations.
As demonstrated above, the Nursery Bylaw Amendment also puts in place a comprehensive set of 19 requirements for Plans, Rules, and Specifications, as well as seven supplemental requirements that all work together to preserve the residential character of the neighborhood. Applicants must make submittals to address each of these requirements, and they did so here. I find that the Planning Board made detailed findings and put in place restrictions and limitations to render Thayer Nursery's proposed landscaping operation consistent with the neighborhood. The terms and conditions of the Decision went beyond the minimums in the Nursery Bylaw Amendment, which were themselves comprehensive. The Decision imposed numerous conditions and limitations on landscaping operations at Thayer Nursery to protect nearby properties and residents from negative impacts, manage harmonious coexistence, and ensure that there would be little, if any, detriment to public good. These conditions and limitations were highly detailed, extending from drainage and runoff, to odors, noise, dust, appearance, lighting, street damage, scale of the operations, and more.
To further protect abutters, the Decision mandates "strict compliance with all terms, conditions and requirements whether contained in Subsection III.N or in this Special Permit," and cautions that "no material changes to operations, site features or addition of site features"
shall occur without amending the 2016 Special Permit. In so providing, the Decision establishes a favorable enforcement standard for any aggrieved abutters should Thayer Nursery violate any of the 2016 Special Permit's terms or conditions.
In addition, at Paragraph 10, the Decision creates complaint procedures and transparency mechanisms to address neighbors' concerns. For instance, neighbors may informally mail or email complaints to Thayer Nursery, or formally lodge them with the Building Commissioner.
Neighbors have access to a range of written logs and records that the Thayer Defendants must maintain on site. These records include an employee list, an activity log for materials purchased and delivered, a log of snow and ice removal operations, a list of vehicles, and a delivery log. In addition, the Decision grants the Building Commissioner the right to inspect the property, and it requires that the Thayer Defendants submit an annual report to the Town Engineer concerning maintenance of the drainage and stormwater operations. These complaint procedures and transparency mechanisms, coupled with the mandate for strict compliance and no material change, will enable members of the public to hold Thayer Nursery accountable for any deficiencies.
The Planning Board also recognized in the Decision that it had received concerns from neighboring residents as to the dust, noise, and odor coming from the property. After detailing the above conditions and limitations, the Planning Board stated: "In granting this special permit, it is the intent of the Planning Board that the combined nursery and landscaping business operations under the terms and conditions herein specified will result in an overall improvement of the conditions at the premises." The conditions and limitations on landscaping activities are consistent with this goal and show that the Planning Board meaningfully balanced the landscaping business with the character of the residential community. It is hard to imagine any more that the Planning Board could have done to protect residents living near a landscaping business. The history of permitting at Thayer Nursery, along with the citizens' initiative reveals that the townspeople find real benefit in having local nursery businesses as part of their community.
Plaintiffs also argue that granting the 2016 Special Permit substantially derogates from the intent or purpose of the Town's Zoning Bylaw. However, by its stated purpose, the Nursery Bylaw Amendment was designed to permit landscaping businesses to coexist with residential communities. Because the 2016 Special Permit was granted in accordance with the Nursery Bylaw Amendment, this claim must fail. See Lydon, supra, at 258 (concluding that special permit "cannot be said [to] substantially derogate[] from the Bylaw's purpose" where permitted use was specifically contemplated by the Zoning Bylaw).
C. Plaintiffs Are Not Entitled to Costs
In an attempt to recover litigation costs pursuant to G. L. c. 40A, § 17, Plaintiffs argue that the Planning Board acted with gross negligence, bad faith, and malice for granting the permit with knowledge that the Thayer Defendants were ineligible recipients. This court finds the 2016 Special Permit is well crafted and valid; the Planning Board did not act improperly, and it is not liable for Plaintiffs' costs.
IV. CONCLUSION
For these reasons, Defendants' Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Summary Judgment is DENIED.
Judgment will enter accordingly.
PHILIP JOHENNING and JOHN S. ROWE v. BRYAN W. FURZE, APRIL LAMOUREUX, CHERYL TOUGIAS, ALEXANDER WHITESIDE and MACHAEL E. KELLY as they constitute the PLANNING BOARD FOR THE TOWN OF MILTON, OLDFIELD FAMILY LLC, F. JOSHUA OLDFIELD, MARGARET T. OLDFIELD a/k/a MARGARET T. LAING, and THAYER NURSERY CORPORATION.