MICHAEL BRUMBER and DCAB, LLC v. DAVID THORN, WARREN CHAMBERLAIN, GEOFFREY ZEAMER, NIKKI BORMAN and JOSH SANTORO as members of the Holliston Planning Board.

Introduction

This case is a G.L. c.40A, §17 appeal from the denial of a special permit and associated site plan approval, with its background facts as follows.

Plaintiff Michael Brumber's limited liability company, DCAB LLC, owns the fifteen-acre site at 194 Lowland Street in Holliston. [Note 1] It is industrially zoned, but directly abuts a residential neighborhood to its south and east. In addition, its shortest access route to Route 16 (the main thoroughfare in the area) and the way most likely to be taken by vehicles coming and going from the site to I-495, goes north via Woodland Street through a residential neighborhood.

The site is a former sand quarry, now no longer used for that purpose. [Note 2] Over time, without first obtaining permits to do so, Mr. Brumber brought approximately 5,000 cubic yards of compost and 30,000 cubic yards of "mixed fill" to the site, put it in piles, and began a composting operation. Those plans were frustrated when the town brought a zoning enforcement action and his dumping and composting activities were preliminarily enjoined by the Superior Court. He now wants to remove the piled material from the property by screening it on site to sift out the larger rocks, combining the now-screened compost and fill into more marketable "earth material", selling it to third-party customers, and then loading it onto the customers' trucks to be hauled away. Doing this involves a backhoe to dig the materials out of the piles and put them on a screen conveyor, the screen conveyor itself (a motorized, movable conveyor belt with a half-inch rock screen), a water connection for dust control, a front-end loader to load the now-sifted and mixed earth material into the customers' waiting, open-topped trucks, very large trucks (18-wheel tractor-trailers, each capable of hauling and dumping 22 cubic yards of earth material and weighing between 32 and 33 tons when fully loaded), and a minimum of 3,180 truck trips over the nearby streets — 1,590 trips to the site by empty trucks, and then 1,590 trips from the site after the trucks have been loaded. Even more truck trips would be needed if the average load per truck is less than 22 cubic yards — the maximum such trucks can generally handle due to weight constraints.

Mr. Brumber proposed to conduct these activities over a period of 150 days (five months), [Note 3] Monday through Saturday, starting at 7:00 in the morning and continuing throughout the day until 6:00 in the evening. [Note 4] On days involving large orders from major customers, [Note 5] the Board calculated that there might be as many as 40 trucks coming to the site and then carrying away full loads of fill, 80 truck trips (40 in, 40 out) in all. Planning Board Decision at 7 (Feb. 2017). [Note 6]

The parties agree that a special permit and site plan approval from Holliston's Planning Board is needed to do this. See Bylaw §III-A, s.27c (outdoor retail sales); Bylaw §III-A, s.42a (general industrial uses); and Bylaw §III-A, s.49 (outdoor storage of building or other materials or equipment not covered elsewhere in the bylaw), each of which requires a special permit in this district. [Note 7] See also Bylaw § VI-E (special permit granting authority); ByLaw §VII (site plan approval).

Before granting such a permit, the Board must consider "the proposed use in relation to the site as well as the adjacent uses and structures", and must find "that there will be no significant adverse effects to the neighborhood or the town." Bylaw §VI-E, s.5. Specific findings that must be made include that "[a]dequate and appropriate facilities shall be provided for the proper operation of the proposed use, including screening and provisions for convenient and safe vehicular and pedestrian circulation within the site and in relation to adjacent streets and properties," Bylaw §VI-E, s. 5(c), and that "[t]he proposed project shall not create any significant emission of noise, dust, fumes, noxious gases or any other adverse environmental impact including stormwater, erosion and sedimentation," Bylaw §VI-E, s.5(d).

Site plan approval requires findings, among others, that there is "protection of adjoining premises against seriously detrimental or offensive uses on the site", Bylaw §VII, s.5(a), and that there is "convenience and safety of vehicular and pedestrian movement within and without the site, and in relation to adjacent streets, property or improvements", Bylaw §VII, s.5(b).

The Planning Board denied Mr. Brumber's application on several grounds that fall within the scope of these required findings, two of which remain at issue: noise and truck traffic. [Note 8] In the Board's view, the noise from the screening, mixing, loading and hauling operations, particularly on days when that activity was continuous, would be excessive and adversely affect the nearby residences, and the proposed truck traffic "would result in significant threats to pedestrians (including children), bicyclists, and other motor vehicle operators on the adjacent streets [Note 9] and the regional Upper Charles Multi-Use Trail which is located approximately 1300' northwest of the site. [Note 10]" Planning Board Decision at 6-8. Mr. Brumber disagrees, contending that the noise so generated will not exceed the Bylaw standards, and that the truck impacts will be minimal, with no safety issues.

The case was tried before me, jury-waived. For the reasons set forth below, based on the facts I find from the evidence at trial and my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, I find and rule that the Board had a rational factual basis for its decision and since, in that situation, "it is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling," I defer to the Board and AFFIRM its denial. See Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 , 821 (1973). The central problem remains — what is to be done with these piled up materials that the town claims were brought to the site illegally, and thus presumably wants removed under some protocol. But that problem will have to be solved in the context of a new application with a modified or different proposal.

Further Facts, and Analysis

Under the Holliston zoning bylaw, for a special permit to issue, the proposed use must be evaluated "in relation to the site as well as the adjacent uses and structures", and there must be a finding "that there will be no significant adverse effects to the neighborhood or the town." Bylaw §VI-E, s.5. As previously noted, site plan approval requires essentially parallel findings. See Bylaw §VII, s.5(a) & (b).

The 194 Lowland property is in an industrial zone, but it is on the outer edge of that zone. There are industrial uses to its north and west — landscaper and contractor yards; carpentry, car detailing, and car repair businesses; an excavation and construction company; a tree company; and even a company that processes recycled asphalt; all of which have a certain amount of truck traffic going to and from their sites and create a certain amount of background noise — but the immediate abutter to the south of the site, just across a brook and wetland, is a large residential neighborhood. Thus, for purposes of assessing the noise impacts of Mr. Brumber's proposed operations, those residences are "adjacent uses and structures" and part of the relevant "neighborhood" to be evaluated. For traffic purposes, Woodland Street to the north must also be considered.

Noise

The bylaw section governing the granting of special permits requires a finding that "[t]he proposed project shall not create any significant emission of noise, dust, fumes, noxious gases or any other adverse environmental impact including stormwater, erosion and sedimentation." Bylaw §VI-E, s.5(d). "Significant" is not defined in that section, but the subject of noise is addressed in the zoning bylaw's "performance standards" section, Bylaw §V-N, s.4, as follows:

Noise. No use shall be permitted within the town of Holliston which, buy [sic, by] reason of excessive noise generated therefrom, would cause nuisance or hazard to persons or property. Exempt from the provisions of this subsection are (a) vehicles not controlled by an owner or occupant of a lot within the town, [and] (b) temporary construction activities occurring during the hours of 7 a.m. to 6 p.m. on weekdays. . . [Note 11]

a. Noise Standards:

Table E-1

For Sounds Generated Continuously Maximum Permitted Sound

From any Source Not Otherwise Levels (in dBA)

Exempted Above, and Measured

(a) At or beyond the lot line of an adjacent 60

or nearby residence or institutional use,

weekdays during the hours of 7 a.m. to 6 p.m.

(b) At or beyond the lot line of an adjacent 50

or nearby residence or institutional use,

Sundays or during the hours of 6 p.m. to

7 a.m. weekdays

b. Exceptions for Intermittent Noise. The levels (dBA) specified in Table 1 may be exceeded by ten (10) dBA, weekdays during the hours of 7 a.m. to 6 p.m., but not at any other time, for a period not to exceed twenty (20) minutes during any one (1) day.

Mr. Brumber contends that compliance with these standards is all that is required to establish conclusively that his proposed operations would not create a "significant emission of noise" within the meaning of the special permit bylaw (§VI-E, s.5(d)). His expert witness, Brion Koning of Cavanaugh Tocci Associates, thus attempted to show that the Brumber operations would meet those standards. Leaving aside for the moment the question of the conclusiveness of §V-N, s.4 (i.e. whether the Board, when considering a special permit application in a particular situation, could use a different standard — an issue I turn to below), I find that Mr. Koning has not shown compliance with §V-N, s.4.

As an initial matter, Mr. Brumber contends that his proposed operations fall within §V-N, s.4's exemption for "vehicles not controlled by an owner or occupant of a lot within the town," and also within its exemption for "temporary construction activities." This is plainly wrong. Although Mr. Brumber does not own, nor his employees drive, the trucks that will leave the site loaded with the earth materials he has sold, he nonetheless "controls" those trucks for purposes of the bylaw because he sets the days and hours they can come to the site, they are on the roads only because they are coming to his site (i.e., they would not be driving there if they were not purchasing his materials), and they are a central and integral part of the proposed operations, the whole point of which is to remove the earth materials from the site. The sound those trucks produce must thus be part of the overall "noise" evaluation. Likewise, the "temporary construction activities" exemption does not apply because the operations at issue are not associated with construction of any kind on the Brumber site. Rather, they are a sale of stored materials originally brought to that site from elsewhere. These sales may be "temporary" in the sense that they are time-limited, but what, for policy reasons, the bylaw tolerates for one type of activity (construction, resulting in property improvement and, presumably, an increase in the tax base), it is not required to allow for something else (sales of materials brought to the site from elsewhere). The line the bylaw draws between the two is a rational one, and the bylaw is allowed to draw it. See Schlesinger v. State of Wisconsin, 270 U.S. 230, 241 (1926) (Holmes, J., dissenting) ("the great body of law consists in drawing such lines" and where the line drawn is rational, it is appropriate to defer to "the body whose business it is in the first place" to make that judgment); Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372 , SJC-12516, slip op. at 13, n.9 (Feb. 8, 2019) ("[p]erceived inequities resulting from legislative choices do not affect our construction of the statute").

The activity at issue would occur on weekdays (Monday through Saturday) between 7:00 a.m. and 6:00 p.m. Thus, the maximum sound level allowed by the §V-N, s.4 is 60 dBA measured "at or beyond the lot line" of the adjacent and nearby residences, with an exception for "intermittent noise" up to a level of 70 dBA so long as the cumulative daily total of the "intermittent noise" between 60 and 70 dBA does not exceed twenty minutes. Much of Mr. Koning's testimony was his attempt to show that the Brumber activities would fall at or under 60 dBA at the relevant locations. I find that he did not do so. See L.L. v. Com., 470 Mass. 169 , 183 (2014), citing Commonwealth v. O'Brien, 423 Mass. 841 , 854 (1996) ("[e]xperts' opinions are not binding on the trier of fact, who may accept or reject them in whole or in part."); see also Com. v. Hawkesworth, 405 Mass. 664 , 672 (1989) (holding that "[t]he judge was not bound by the views of the defendants' experts on the issue of rehabilitation"); Com. v. Watson, 388 Mass. 536 , 539 (1983) (upholding judge in finding that "the views of certain experts [were] unpersuasive"); Ward v. Com., 407 Mass. 434 , 438 (1990) (judge not bound by views of experts and "was entitled to resolve the conflict between [the petitioner's three experts'] testimony and that of the court-appointed expert by crediting the opinion of the latter"); Com. v. Matthews, 406 Mass. 380 , 386 (1990) (judge "entitled to resolve the conflicting testimony" and determine a witness' credibility as the judge saw the witnesses); Piemonte v. New Boston Garden Corp., 377 Mass. 719 , 731 (1979) ("[a]s the trier of fact, the judge was not bound to accept the valuation [or view] of either one expert or the other. He was entitled to reach his own conclusion"); In re MacDonnell's Case, 69 Mass. App. Ct. 1101 , 2007 WL 1392364 *1 (1:28 Decision) (May 11, 2007) ("[a] judge is not required to credit or accept any particular expert's opinion," citing Case of Sylva, 46 Mass. App. Ct. 679 , 681 (1999)).

Mr. Koning's approach was conceptually sound as far as it went. His goal was to measure the sound pressure levels, converted to sound power, that would be generated by the screening, mixing, and loading activities at their source, and then, using a computer program that takes into account buffering, terrain, and distance, calculate what the highest sound power levels would be at the property lines and sites of the nearby residences. [Note 12] Factoring in buffering from the material piles themselves, depending upon which pile was being excavated, screened and loaded, these ranged from 51 dBA (for the northernmost pile — the one furthest away from the residences — assuming buffering from the remaining piles between that pile and the residences) up to 60 dBA when the last (southernmost) pile was being removed. When the anticipated noise from the trucks was factored-in under the same "pile by pile" scenario, the calculations ranged from 58 dBA to 60 dBA. [Note 13] They are thus at the maximum (60 dBA) §V-N, s.4 allows, with anything more than that in violation, and thus no margin for error. I find that Mr. Koning has failed to show that the noise will not be higher and, given what is missing from his measurements and calculations (as described below), he has failed to show that the noise levels at the residential locations are likely to be so. Since it is Mr. Brumber's burden to show that the special permit criteria have been satisfied, I find that the Board was within its allowable discretion to deny his application.

Mr. Koning measured the sound levels of the actual equipment that would be used, with the excavator, front loader, and screener at full power. For present purposes, I accept the accuracy of those measurements, at least provisionally. His assumption that there would be no truck tailgate slams is probably correct — the trucks are arriving empty, will be loaded from overhead, and there would seem to be no reason to open or close their tailgates while on the Brumber site — and I again accept that provisionally. It is not clear to me that the noise from idling trucks, even a long line of idling trucks, will be "masked" by the noise of the other equipment, particularly when most of those trucks will be in locations unbuffered by the piles while they wait their turn to be loaded, but I can provisionally accept that as well.

What is missing from Mr. Koning's analysis, at least as he described it, is a measurement of the noise that would be produced by the screening itself (the clatter of the rocks as they are sifted), and by the loading operation itself (the "crash" as the material is dumped into the trucks, particularly any containing gravel). [Note 14] Moreover, I find his assumption that the loading equipment will stay in positions buffered by the earth material piles to be an unrealistic one. Surely that equipment will move around the perimeters of those piles as they are being dug and loaded onto the trucks, particularly when the loading takes place in a hurry. And surely there will be many times when that equipment will be operating in areas beyond the buffering piles.

Mr. Koning also assumed that there would be no "jake braking" by the trucks while on site [Note 15] (he did not include it in his measurements, presumably because Mr. Brumber told him it would be forbidden), but I am dubious that that prohibition will be enforced. Mr. Brumber's employees are unlikely to refuse to load already-purchased materials just because of a "jake brake" by the truck, and they will have no leverage whatsoever on a heavily loaded truck, weighing more than 32 tons, as it drives off the site, and none whatsoever as that truck travels on the nearby roads — the times such braking is most likely to occur.

Mr. Brumber may contend that any such noises would be intermittent at best, and not above 70 dBA as measured at the residential properties. But I am not persuaded that noises above 60 dBA will only total twenty minutes or less during a day. Mr. Brumber's application did not limit the number of trucks that could be loaded on any given day and, as previously noted, it could be as many as forty. I thus find that the number of minutes 60 dBA will be exceeded over the course of the day will be more than twenty, and therefore that the exception for "intermittent noise" will not apply.

All this, coupled with Mr. Koning's concession that strong downwind conditions could increase the noise as heard at the residences, [Note 16] and his further concession that the noise hitting the nearest residence would be increased by 3 dBA due to reflection off the side of the house, is more than sufficient factual basis for the Board to conclude that the maximum noise levels "at or beyond the lot line of an adjacent or nearby residence" would be greater than 60 dBA for more than twenty minutes a day, and thus, even if compliance with §V-N, s.4 was all that was needed, to deny the special permit. [Note 17] Just because sound is "reflected" off a building does not take it out of the measurement. So far as the record shows, the residence where the reflection takes place is a completely ordinary house, and the bylaw sets an "actual measurement" standard, not a theoretical one. Mr. Koning may contend that the noise over 60 dBA will likely be "barely detectable", but I am not so sure. Decibels are logarithmic. A 10 dBA increase over 60 dBA is twice the 60 dBA sound level. In any event, 60 dBA is the line drawn by Bylaw §V-N, s.4 and, as noted above, the Bylaw has the right to draw that line.

I thus need not, and do not, address the Board's other contention regarding noise — that §V-N, s.4 does not preclude the Board, when weighing the grant of a special permit application in a particular situation, from applying a lesser measure for "significant emission" of noise so long as the standard so used is objective, reasonable, and rationally related to the situation being addressed. [Note 18] Here, the Board points to the MassDEP noise standard which, broadly speaking, restricts sound increases to 10 dBA over the ambient noise level measured both at the property line and at the nearest inhabited residence, with "ambient" defined as the background A-weighted sound level that is exceeded 90% of the time measured during equipment operating hours. See 310 CMR 7.10; MassDEP Policy 90-001 (Feb. 1, 1990); MassDEP Noise Pollution Policy Interpretation (2018). If the Board is correct that it can apply this standard in this situation, and it may well be, [Note 19] its denial must clearly be affirmed on that basis. As Mr. Koning conceded, the ambient noise in the neighborhood is between 41 and 42 dBA [Note 20] and, as noted above, his own sound level projection at the residences was 60 dBA, well above 10 dBA over ambient.

Truck Traffic

Even if, contrary to my findings above, Mr. Brumber had shown full compliance with all applicable noise standards, the denial of his special permit application would still be affirmed on the other basis cited by the Board — the safety impact on residential streets from the trucks going to and from Mr. Brumber's site. In simplest terms, the issue is this. There will be up to 40 trucks a day going to and from the site, empty when going there and full when leaving. The trucks will be large — 18-wheel open-topped tractor trailers. They will be carrying heavy loads, with up to 22 cubic yards of earth material weighing between 32 and 34 tons per truckload. [Note 21] Such immense weight affects maneuverability and stopping distance. Most of the trucks will be coming and going from Route 16. The Board has no particular issue if the trucks go through the industrial district (the Jeffrey Avenue route), but it has a serious concern for pedestrian and bicyclist safety, particularly children, if the trucks take the shorter route to Route 16 via Woodland Street that goes through a residential neighborhood and is crossed by the Upper Charles Multi- Use Trail (the "bikepath"). [Note 22]

Mr. Brumber responds with two arguments. First, he says, the trucks will not use that route. They will be told to stay on the Jeffrey Avenue route, and he is confident they will do so. [Note 23] Second, if some trucks do drive on Woodland Street, they will do so during daylight hours and the sightlines and stopping distances are such that there will be no danger. As he points out, trucks drive there now, and they are not prohibited from doing so.

In support of his arguments, Mr. Brumber offered the testimony of an expert, Lloyd Bristol, who took the minimum total number of truckloads that would be required to remove the 35,000 cubic yards of earth material (1,590), divided them by the number of working days within the 150 day window applied for, and came up with an average number of trucks per day (14). He then used that average, assumed that four trucks would arrive and depart from Mr. Brumber's site within the first hour of operation (i.e., between 9:00 a.m. and 10:00 a.m.), and spread the remaining ten throughout the rest of the day. His counts of existing traffic showed that Woodland was a busy street — between 30 and 48 vehicles passing every 15 minutes during peak traffic hours. He assumed that pedestrians and bicyclists, used to this level of traffic, would be careful. And, based on all this, he deemed the addition of 28 extra truck trips (14 each way) "nominal", without any impact on safety.

The problems with this analysis are obvious. Using an "average" number of trucks glosses over the fact that there will be many days when that average will be exceeded. As the Board calculated, there could be as many as 40 trucks coming and going (80 trips) on a single day. His spreading the trucks throughout the day is also unrealistic. Most will come from contractors who will want the material as early as possible so that they can work with it on their sites that day, and thus the number of trucks will likely be far higher in the early hours than Mr. Bristol assumed. He glosses over the fact that these will not be typical trucks. They are large and, when loaded, will be carrying as much as 22 cubic yards of earth material — 32 tons in weight or more — with corresponding ef- fects on their maneuverability and stopping distances. And, not least, his view that bicyclists on the bike path, including children, will pay proper attention and not inadvertently speed across the road without first looking, is unrealistic. The number of such incidents may ultimately be small, but the consequences of even one are potentially tragic.

What Mr. Brumber wants to do requires a special permit. The Board has considerable discretion to grant such a permit or not, and included in that discretion is its right to be affirmed on any rational view of the facts. See Britton, 59 Mass. App. Ct. at 74; Cop- ley, 1 Mass. App. Ct. at 821. Mr. Brumber might consider the safety risks minimal, but he cannot say there are none and, so long as rationally based, it is the Board's evaluation of the seriousness of the problem which is controlling. I find that the Board's concerns are not irrational, and they have sufficient basis in the facts to justify the denial of the special permit.

Conclusion

For the foregoing reasons, the Board's denial of Mr. Brumber's special permit application is AFFIRMED and Mr. Brumber's appeal from that denial is DISMISSED, WITH PREJUDICE.

This is not to say that removal of these earth materials can never occur. A new plan, with operations that result in less noise (or are better noise mitigated) and a more solid way to enforce the prohibition of trucks using the Woodland Street route, perhaps through police details, might persuade the Board to grant the necessary permit or, failing that, demonstrate that a denial would have no rational basis and should thus be over- turned. But those are different plans than this, and questions for another day.

Judgment shall enter accordingly.

SO ORDERED.