TRUSTEES OF THE WINCHESTER HOUSE CONDOMINIUM TRUST vs. GELLER, MISC 17-000097

The Plaintiffs, Trustees of the Winchester House Condominium Trust (the "Trust" and "Condominium"), object to the redevelopment of a property on a site adjacent to the Condominium in the Coolidge Corner neighborhood of Brookline. The Trust filed suit in both the Land Court and in Norfolk Superior Court to challenge that redevelopment. In the Land Court case, Misc. No. 17 MISC 000097, the Trust seeks to overturn a decision of Defendant, Brookline Zoning Board of Appeals (the "Board") granting a comprehensive permit to the Roth Family, LLC and 40 Centre Street, LLC (the "Private Defendants"), for the construction of a 40- unit mixed income, rental housing project (the "Project") under G. L. c. 40B ("Chapter 40B"). In the Superior Court case, Docket No. 1982CV00579, the Trust seeks to protect a number of trees which are located on or near the boundary between the Condominium's property and the site of the proposed project at 40 Centre Street (the "Project Site"). Plaintiffs' Complaint as originally filed in the Land Court included two counts, Count I challenging the Board's decision under Chapter 40B and Count II seeking a declaration pursuant to G. L. c. 231A that Private Defendants may not construct the Project because of potential harm to the root systems of the trees located on Plaintiff's property and on the boundary with the Project Site. The tree claims were later dismissed by this court (Rubin, J.) and refiled in Superior Court. The Superior Court case was interdepartmentally assigned to me and the two cases were tried together on December 16, 18 and 19, 2019.

For the reasons discussed below, I find that although Plaintiffs enjoy a presumption of standing as abutters, Private Defendants have successfully rebutted that presumption and Plaintiffs' claims of aggrievement are speculative and unsubstantiated and therefore do not support a finding that the plaintiffs have standing under G. L. c. 40A, § 17. Furthermore, the impacts claimed by the Plaintiffs relating to trash and recycling management, as well as traffic and parking, are not distinguishable from the impacts encountered by the neighborhood or community at large. Accordingly, the grant of comprehensive permit is affirmed. With respect to Plaintiffs' tree claims, I conclude that relief is not warranted because Private Defendants are within their rights to trim the branches and roots of the nine trees at issue, including both the four trees located wholly on Plaintiffs' property and the five boundary line trees, and because Private Defendants have committed to implement measures to protect the boundary line trees during construction.

PROCEDURAL BACKGROUND

On February 8, 2017, the Board issued its Decision on Chapter 40B Comprehensive Permit Application (the "Decision," also referred to as Trial Exhibit 1 or "Tr. Ex. 1"), and the Trust timely appealed pursuant to G.L. c. 40A, § 17 and G.L. c. 40B, § 21, by filing a complaint in this court on February 27, 2017. On March 27, 2017, before discovery was complete, Plaintiffs filed Plaintiffs' Motion for Partial Summary Judgment, wherein Plaintiffs sought annulment of the Decision, arguing that the Board had improperly delegated decision-making on substantive aspects of the Project to town staff. On June 6, 2017, after hearing, the court (Piper, J.), denied that motion, as requiring trial.

On November 10, 2017, Private Defendants filed their Motion for Summary Judgment with respect to Count I of the Complaint, challenging each of the Trust's several asserted bases of standing: (1) parking and traffic, (2) stormwater management, (3) waste and recycling management, (4) public fire safety, (5) noise levels, (6) injury to trees, and (7) design and density, including shadows. On September 24, 2018, after hearing, the court (Piper, J.), issued an Order Denying in Part and Granting in Part Private Defendants' Motion for Summary Judgment. As a result of that Order, three categories of aggrievement remained for trial: (1) traffic and parking; (2) waste and recycling management; and (3) public fire safety. That Order concluded that tree preservation was not an interest protected by G. L. c. 40B, §§20-23 and could not serve as the basis for establishing standing as a matter of law.

On March 18, 2019, Private Defendants filed a motion in limine seeking, inter alia, to dismiss Count II of the Complaint for lack of subject matter jurisdiction because Plaintiffs' tree protection claim sounded in tort and did not implicate a claim of right, title or interest in property. In opposition, Plaintiffs argued that the tree claims were properly before the Land Court under its ancillary jurisdiction. In an order dated April 23, 2019, the court (Rubin, J.), concluded that ancillary jurisdiction was not appropriate and provided Plaintiffs with a period of 60 days to file a new case in Superior Court, if they so chose, before dismissal of Count II without prejudice. Plaintiffs thereafter dismissed Count II and filed the tree protection claims in Superior Court. Pursuant to an Order of Assignment entered on June 5, 2019 by the Chief Justice of the Trial Court under G. L. c. 211B, § 9, I (Rubin, J.) was assigned to sit as a Justice of the Superior Court Department for the purpose of hearing the tree claims filed in Superior Court.

A pre-trial conference on the consolidated cases was held on November 20, 2019. The parties agreed that four issues would proceed to trial: (1) Whether Plaintiffs had standing to maintain their appeal of the Decision granting a comprehensive permit to the Private Defendants; (2) Whether the Decision was based on legally untenable grounds, or was unreasonable, whimsical, capricious or arbitrary; (3) Whether the Board improperly delegated to another board or municipal official the determination of an issue of substance, more specifically an issue central to the Board as the permit granting authority; and (4) Whether Plaintiffs were entitled to declaratory and injunctive relief to prevent injury or death to any of nine (9) trees located either on or near the common boundary between the Project Site and the Condominium property. The Plaintiffs advised that they would not advance at trial issues related to fire safety as a basis to establish standing.

I took a view of the Project Site and the Condominium property on December 12, 2019. Trial proceeded on December 16, 18 and 19, 2019. After receipt of transcripts and the filing of post-trial memoranda from both Plaintiffs and Private Defendants, I took these matters under advisement on March 10, 2020.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the Project Site and the Condominium's property on Centre Street, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

The Parties, the Properties and the Neighborhood

1. Defendants Forty Centre Street, LLC a/k/a 40 Centre Street, LLC and Roth Family, LLC are Massachusetts limited liability companies with a principal address of 40 Centre Street, Brookline. 40 Centre Street, LLC was the applicant for a comprehensive permit to the Board, and Roth Family, LLC was identified interchangeably with 40 Centre Street, LLC by the Board as the applicant and recipient of the comprehensive permit. Statement of Facts agreed by Plaintiffs and the Private Defendants, filed with their Joint Pre-Trial Memorandum, on November 18, 2019 ("SOF"), ¶¶ 1-2.

2. The Plaintiff Trustees are the duly elected/appointed members of the governing body of the Condominium under a Declaration of Trust, dated April 23, 1979, and recorded with the Norfolk County Registry of Deeds (the "Registry"), in Book 5593, Page 523. The Trust is the organization of unit owners of the Condominium established by Master Deed, dated April 23, 1979, and recorded with the Registry in Book 5593, Page 511, with an address of 19 Winchester Street, Brookline. SOF, ¶ 3. Elissa Rosenthal ("Rosenthal") is the Chair of the Board of Trustees of the Condominium. Tr. Vol. III, at 529.

3. The individual Plaintiffs each reside at the Condominium. More specifically, they are: Carol Murphy Edberg who resides in Unit 110, Cynthia Allyn who resides in Unit 802, Bradley Cohen who resides in Unit 304 and Stanley Belastock ("Belastock") who resides in Unit 903. SOF, ¶¶ 4-7.

4. The Condominium is a nine-story residential building, located at 19 Winchester Street, with a parking garage below grade and fronting on Winchester Street. The rear of the Condominium building abuts the rear lot line of the Project. An outdoor, inground swimming pool is located on the Condominium's rear plaza, abutting the Project Site. The Condominium also owns an open air parking lot at the rear of the Condominium building and fronting on Centre Street. The Condominium parking lot is accessible on foot from the back door of the Condominium building and by vehicle from Centre Street. The Condominium parking lot abuts the Project Site along Centre Street, on the western boundary of the Project Site and further from Beacon Street. Tr. Vol. III, at 526-527.

5. Residents of the Condominium use the back door to cross through the Condominium parking lot where it fronts on Centre Street, to reach Coolidge Corner, where Beacon Street intersects with Harvard Street. Tr. Vol. I, at 189; Tr. Vol. III, at 530-532, 552-553.

6. The Project Site has an address of 40 Centre Street, Brookline. It is located on the southern side of Centre Street, less than a full block or approximately 500 feet from Beacon Street (a major arterial) and approximately 500 feet from Harvard Street (also a significant arterial). At present, a two-story building is located on the Project Site, with medical office space on the first floor and a residential apartment on the second floor. A driveway on the left side of the property facing Centre Street provides access to a parking lot with twelve spaces at the rear of the property. SOF, ¶¶ 13-14; Tr. Vol. I, at 186, 189, 206; Tr. Vol. II, at 186; Tr. Ex. 3, at 2; Decision, p. 4, FOF 9.

7. A municipal parking lot abuts the Project Site along its eastern boundary. Tr. Vol. I, at 126-127 (and as observed during the view). Another much larger municipal parking lot is located across Centre Street from the Project Site. The existing site is relatively flat, with a grade change of approximately 1.5 feet. SOF, ¶ 36; Tr. Vol. I, at 189 (and as observed during the view).

8. The Condominium and Project Site are located in an urban neighborhood, with retail businesses, restaurants, pharmacies, movie theaters, gym, houses of worship and grocery stores all within convenient walking distance. It is a short walk of a block or two to reach either Beacon Street or Harvard Street, and their intersection at Coolidge Corner. The neighborhood is diverse, with several apartment buildings for elderly residents on Centre Street. Tr. Vol. I, at 189; Tr. Vol. III, at 529-532, 542-556.

9. Rosenthal has lived at the Condominium for forty years and has served on the governing Board of Trustees for twenty-five years, currently as the Board Chair. She has great familiarity with the proposed Project Site and the neighborhood. Tr. Vol. III, at 526, 529- 531.

10. Rosenthal walks to Coolidge Corner on a regular basis (approximately five times per week). Her typical path is out the back of the Condominium building, through the Condominium's parking lot to access Centre Street, turning right past the Project Site and then walking a little further up Centre Street to Beacon Street and left to Harvard Street. Tr. Vol. III, at 530-531.

11. Belastock has lived at the Condominium for thirteen years. Tr. Vol. III, at 551. He and his wife walk to Coolidge Corner daily when they are in town (and not at their second home). Their path of travel begins at the rear of the Condominium building, through the parking lot, along the sidewalk on Centre Street in front of the Project Site; they then walk through the large public parking lot on the northern side of Centre Street to reach a building called the Arcade, which houses the movie theater, and commercial establishments on Harvard Street. Tr. Vol. III, at 553-560. Belastock does not cross Centre Street at a crosswalk, but rather chooses to cross mid-block. Tr. Vol. III, at 558-559. Neither Rosenthal nor Belastock park their cars in the Condominium parking lot, but instead park in its underground parking garage.

12. Large numbers of people, many of them elderly, use the sidewalks in the area. Tr. Vol. III, at 559.

The Proposed Project and the Decision

13. On March 16, 2016, the Massachusetts Housing Finance Agency ("MassHousing") issued a Project Eligibility Letter to 40 Centre Street, LLC. According to the Commonwealth's Department of Housing and Community Development Subsidized Housing Inventory, as defined in 760 C.M.R. 56.02, as of May 23, 2016, 8.6% of the Town of Brookline's housing stock constituted eligible affordable housing. SOF, ¶ 8; Tr. Ex. 1, p.3, FOF 1.

14. On or about April 26, 2016, Private Defendants applied to the Board for a comprehensive permit pursuant to G. L. c. 40B, §§ 20-23, to construct a 45-unit mixed-income apartment building with seventeen (17) parking spaces, to be located on the Project Site, a lot of approximately 10,889 square feet. SOF, ¶ 9; Tr. Vol. I, at 189; Tr. Ex. 1, p.1.

15. The Project Site is located within a multi-family residential zoning district, designated as M-1.0. Tr. Ex. 1, p.4, FOF 6.

16. On May 23, 2016, the Board opened its public hearing on the Private Defendants' application. That hearing was continued on June 2 and 20, August 1 and 15, September 1, 12, and 27, October 5 and 26, November 21 and 28, December 13 and 19, 2016, and closed on January 3, 2017. Tr. Ex. 1, p.1; SOF, ¶ 11.

17. On November 21, 2016, Private Defendants submitted a revised comprehensive permit application, reducing the size of their proposal to include 40-units of mixed income rental housing, with twenty-five (25) parking spaces. SOF, ¶ 12; Tr. Vol. I, at 193-194.

18. On January 3, 2017, the Board voted to approve the comprehensive permit application, approving the construction of a 40-unit, 6-story apartment building with a minimum of twenty five (25) ground-level parking spaces (at least eight of which are elevated above ground with a semi-automated parking system), subject to sixty-five (65) conditions detailed in the Decision (the "Project"). The Decision was filed with the Brookline Town Clerk on February 8, 2017. SOF, ¶ 15; Tr. Ex. 1, p.4, FOF 14

19. Private Defendants requested and obtained a number of waivers from Brookline's zoning bylaw and regulations ("Zoning Bylaw"), including among others waivers of maximum height, building stories and floor area ratio. Of particular concern to Plaintiffs are the following waivers: (a) Minimum side yard setback requirement of twenty-four (24) feet (instead, 5.1 feet was permitted on the west side and 6.1 feet was permitted on the east side); (b) Rear yard setback requirement of thirty (30) feet (instead, 5.2 feet was permitted); (c) Minimum usable open space of 20% (instead, 0% was permitted); (d) Minimum parking spaces/unit, totaling 80 spaces (instead, 25 parking spaces were permitted); (e) Required visitor and tradespeople parking of 10% (instead, 0% was permitted). SOF, ¶ 16; Tr. Ex.1.

20. In its Decision, the Board imposed sixty-five (65) conditions upon the Project [Note 1]. These included, among others:

a. Condition 7: "Prior to the issuance of a Building Permit, the Applicant shall submit final site and landscaping plans indicating: plant types and sizes and adequate plan for maintaining, and replacing as necessary, the plantings on the Site; location of, height of, and materials for fences, walls, and patios; exterior lighting; location of utilities, mechanicals, parking spaces, and bicycle storage; location of trash, recycling, and snow storage, subject to the review and approval of the Assistant Director for Regulatory Planning."

b. Condition 9: "Prior to the Commencement of Construction, the Applicant shall meet with the Town Arborist to review the health of the existing street trees and provide a plan for protecting existing street trees during construction, and planting additional street trees, for the review and approval by the Town Arborist with all costs related to the performance thereunder borne by the Applicant. Any proposed removal of street trees shall be subject to M.G.L. c. 87, 'the Shade Tree Act.'"

c. Condition 10: "Prior to the issuance of a Building Permit, the Applicant shall submit a stormwater management and drainage plan to the Director of Engineering and Transportation for review and approval."

d. Condition 11: "Prior to the approval of the site plan by the Director of Engineering and Transportation in accordance with Condition 17, the Applicant shall undertake field investigations to verify assumptions used in the design of the infiltration system and submit a report certified by a registered civil engineer to the Director of Engineering and Transportation detailing soil permeability, soil texture, and depth to seasonal high ground water."

e. Condition 12: Traffic mitigation shall include the following: (1) installation of a STOP sign and a stop line at the Site's driveway; (2) installation of a NO PARKING THIS SIDE sign in the public way on Centre Street toward Beacon Street near the Project Site; (3) the driveway apron shall be installed at the same level as the sidewalk elevation and of the same materials; and (4) financial contribution toward the cost to install an audible pedestrian signal at the traffic signal located and the intersection of Centre and Williams Street.

f. Condition 13: "Prior to the issuance of a Building Permit, the Applicant shall submit a rubbish/recycling plan and schedule to the Chief of Environmental Health for review and a determination of compliance with Town Regulations and that said plan shall include provisions guaranteeing"...twelve sub-conditions, including the following, among others: (1) "a rubbish compactor shall be installed in the rubbish storage room and no fewer than (2) receptacles, each of which is sized no smaller than two-cubic-yards, shall be provided for the rubbish generated by the Project. The rubbish/recycling plan shall show where receptacles will be stored and where a third receptacle, if required, would be stored for compliance with State Sanitary Code"; (2) "no fewer than two (2) receptacles, each of which is sized no smaller than two-cubic-yards, shall be provided to dispose of recyclables generated by the Project. The rubbish/recycling plan shall show where receptacles will be stored and where additional receptacles , if required, would be stored for compliance with State Sanitary Code"; (3) "the rubbish/recycling storage room shall be maintained in compliance with State Sanitary Code and Fire Code requirements"; (4) "the rubbish/recycling room storage room shall be sized to accommodate no fewer than four (4) receptacles each of which is sized no smaller than two-cubic yards"; (5) "the Applicant shall inform the Public Health Department when the Project is ninety (90) percent occupied so that the Chief of Environmental Health may review and approve the preliminary rubbish/recycling plan for compliance"; (6) "all rubbish generated by the Project shall be disposed of twice weekly by a private waste management service contracted by the Applicant in compliance with all applicable regulations; the Chief of Environmental Health shall review and approve a request for a third pickup day" (7) "all recycling generated by Project shall be disposed of twice weekly by a private waste management service contracted by the Applicant in compliance with all applicable regulations"; (8) "the schedule for the Applicant's rubbish and recycling pickup demonstrating compliance with Town bylaws"; (9) "rubbish and recycling receptacles shall not be stored in the public way at any time"; and (10) "rubbish and recycling receptacles shall not be stored in the front yard from 8:00 AM to 11 PM on weekdays and weekends."

g. Condition 14: "Plantings within five (5) feet of either side of the driveway and within the first six (6) feet of the front yard shall be no higher than three (3) feet for optimal driver visibility."

h. Condition 15: "When fifty (50) percent of the Certificates of Occupancy are issued, the Applicant shall demonstrate to the Building Commissioner that the Project complies with the Town Noise Bylaw. Prior to the issuance of the final Certificate of Occupancy, the Applicant shall demonstrate to the Building Commissioner that the Project complies with the Town Noise Bylaw."

i. Condition 16: "Prior to the issuance of a Building Permit, the Applicant shall submit a construction management plan to the Building Commissioner and the Director of Engineering and Transportation for review and approval."

j. Condition 40: "Prior to the issuance of a Building Permit, the Fire Chief or his designee shall review and approve the site plan."

k. Condition 43: The Applicant shall operate and maintain the on-site storm water management system in good working condition and repair at all times at its sole cost.

l. Condition 44: "Prior to the issuance of a Building Permit, all water stormwater and sewage facility designs shall be subject to review and approval by the Director of Engineering and Transportation."

m. Condition 45: "Prior to the issuance of a Building Permit, the Applicant shall demonstrate to the satisfaction of the Building Commissioner," among other things, that the Director of Engineering and Transportation has reviewed and approved the final stormwater management and drainage plans in accordance with Condition 10, the water, stormwater and sewage facility designs in accordance with Condition 44 and the erosion control plans in accordance with Condition 19.

n. Condition 47: "Prior to the Commencement of Construction and subject to approval by the Building Commissioner, the Applicant shall provide a Construction Management Plan that shall include but not be limited to: designation of truck routes before and after construction...; a survey of existing trees on the Site and the public way and measures to ensure tree protection during construction; limit of work areas; where construction vehicles, materials and equipment will be stored; parking hours and locations for construction workers' vehicles; location of portable toilets; security fencing; trash areas; construction trailer locations; the timetable for excavation and overall earthwork operation; and the number of necessary truck trips."

Project Design

21. Private Defendants submitted a number of plans with their application. These included: "Site Plans," dated April 18, 2016, revised to November 10, 2016, prepared by professional land surveyor J.F. Hennessey Co, with an "Existing Conditions Plan," dated December 2015; "Site Feasibility Plan," dated November 10, 2106; "Architectural Plans," prepared by Cube3 Studio and stamped by registered architect John H. Harding ("Harding"), dated April 11, 2016, revised to November 21, 2106, including among others Sheet A-101, depicting the Ground Floor Plan ("Sheet A-101"); and "Landscape Plans," dated May 3, 2016, prepared by Ryan Associates. Tr. Ex. 1, pp. 1-2.

22. Also included with the Private Defendants' application and before the Board were a Traffic Impact Assessment, dated April 15, 2016, prepared by Giles Ham, Vanasse & Associates, and supplemented by a traffic study, dated October 14, 2016, prepared by Daniel Mills, P.E., PTOE, principal of MDM Transportation Consultants, Inc. ("Mills" and "MDM"); and a Stormwater Narrative, dated November 10, 2016, prepared by Schofield Brothers LLC. Tr. Ex. 1, p. 2.

23. The Project design includes a parking garage at grade and underneath the proposed building. Vehicles enter the parking garage by way of a driveway on the eastern side of the Project Site. SOF, ¶¶ 34-35; Tr. Ex. 1.

24. The western side of the proposed building is designed to be set back approximately six feet from the property line shared with the Condominium's parking lot. A new concrete walkway with a width between 5'-0" and 5'-3" is proposed to run from Centre Street along the entire western edge of the Project Site, abutting the Plaintiffs' parking lot, with a thin mulch/planting area between the walkway and Plaintiffs' parking lot. This walkway is a required element of the Project, providing egress from the stairs at the rear of the building. SOF, ¶¶ 37, 39-40.

25. The rear of the proposed building is designed to be set back from the rear lot line by a distance ranging from 5'-2" to 7'-4". SOF, ¶ 38.

26. Comprehensive permits for 40B projects are issued based on a preliminary set of plans, with the understanding that the plans will be further developed and refined prior to construction, as experts for both parties concurred. Tr. Vol. I, at 75-77, 99-102; Tr. Vol. II, at 404-405.

Trash Management

27. On November 14, 2016, Private Defendants submitted a "Narrative for Trash Removal for 40 Centre Street, Brookline, MA.," which described proposed measures for handling trash and recycling generated by the proposed Project (the "Trash Narrative"). The initial design for trash and recycling contemplated a trash chute from each floor leading into a trash room on the ground floor, with two (2) two-yard containers for trash (with a compactor to condense the trash) and one (1) two-yard container for recycling that would be rolled out to the curb along a walkway for pickup by a private waste hauling contractor twice a week via an exterior double door on the western façade, located approximately fifty (50) feet from the street curb. SOF, ¶ 41, 52; Tr. Ex. 5; Tr. Vol. I, at 45-49; Tr. Vol. II, at 368-370. The plans depict a trash and recycling room with dimensions of 15'-6" by 17'-0". SOF, ¶ 51; Tr. Ex. 2.

28. The Decision required that trash and recycling be picked up by a licensed private waste hauling contractor, twice a week, and provided that the Town's Chief of Environmental Health may review and approve a request for a third pick up day. SOF, ¶ 53; Tr. Ex. 1, p.7, Sub-Condition 13(g).

29. The Town's then Chief of Environmental Health Services Patrick Maloney ("Maloney"), a licensed Public Health Officer in the Commonwealth of Massachusetts, reviewed the proposed plans and the Trash Narrative and submitted recommended conditions to the Board in a Memorandum, dated November 21, 2016 ("First Maloney Memo"). SOF, ¶ 42; Tr. Ex. 4. On December 19, 2016, Maloney responded to questions from the Board in a second Memorandum ("Second Maloney Memo"). Therein, Maloney recommended that Private Defendants submit revised plans showing where two (2) two-yard containers for each of trash and recycling would be located, as well as a third trash container either in the trash room or an alternative location), and that should the applicant not be able to provide space for an additional container, the Health Department would not object to an additional (third) pickup day, if needed. SOF, ¶ 53; Tr. Ex. 7. Maloney also recommended that his Department be able "to revisit the issue of compliance when the property is 90% occupied to ensure the approved measures are adequate." Tr. Vol. I, 48 -51; Tr. Ex. 4.

30. The Board incorporated all of those recommended conditions into its Decision and added several additional conditions related to trash and recycling. SOF, ¶ 43; Tr. Ex. 1, pp. 7-8, Condition 13; Tr. Vol. I, at 49-50; Tr. Ex.'s 1, 3, 4.

31. Maloney, as then Chief of Environmental Health, was satisfied that the conditions governing trash and recycling in the Decision were adequate to ensure compliance with the State Sanitary Code and the Brookline Solid Waste regulations. Tr. Vol. I, at 53.

32. Private Defendants requested no waivers of the Town of Brookline Solid Waste Regulations and none were granted. Tr. Vol. I, at 52; Tr. Vol. III, at 506-507; SOF, ¶ 49.

33. The trash management plan for the Project complied with the requirements of the State Sanitary Code and the Brookline Solid Waste Regulations. Tr. Vol. I, at 53; Tr. Ex. 1, p.7, Sub-condition 13 (c).

34. A sketch filed by Private Defendants showed the "pathway" for the containers to be rolled out to the street and a general location on the sidewalk for containers to be parked while waiting to be picked up. SOF, ¶ 60; Tr. Ex.'s 2 (Sheet A-101) and 6.

35. Industry practice is for architects, developers and town officials to consult with waste hauling companies to determine requirements for sizing and pickup of trash and recycling. Private Defendants sized the trash and recycling needs for the Project based on input from a waste company. I find that this process was adequate.

36. Private Defendants have not yet prepared a modified plan to show the location of a potential third two-yard trash container. Tr. Vol. I, at 201. The Decision required space for a fifth, and possibly sixth two-yard container, which I find the trash room can accommodate, if necessary.

37. The Project design did not include an off-street loading area for temporary parking of service vehicles, such as garbage trucks and delivery trucks. Tr. Ex. 2, Sheet A-101; Tr. Vol. I, at 90.

38. Curbside pickup of trash and recycling is an existing condition on Centre Street, both for Town pickups and private waste haulers. Tr. Vol. I, at 63-64.

39. Most properties managers in Brookline who use private waste hauling for trash and recycling pickup, arrange for the company to identify the day(s) per week and time of day for pickups so that the maintenance staff can roll the containers out to curbside prior to the truck arriving and then roll the containers back inside after pickup. Tr. Vol. I, at 61-62. Private Defendants committed to have their onsite property manager follow this practice and to minimize the amount of time the containers remain outside. Tr. Vol. I, at 201-202.

40. The Project will result in a small increase in the number of weekly trash and recycling pickups, compared with existing conditions. Pickups would increase from once a week by the Town of Brookline under existing conditions to twice or possibly three times per week. Under both existing conditions (using the towns garbage trucks) and proposed conditions (using a private hauler) trash and recycling containers are rolled out to curbside on trash day for pickup and parked temporarily on Centre Street. Tr. Vol. I, at 186, 188.

41. The duration of stops by waste vehicles temporarily obstructing Centre Street will not be substantially longer than under existing conditions. Tr. Vol. III, at 510-512. Parking and Traffic Impacts

42. Private Defendants' traffic consultant David Mills, P.E., PTOE, a principal of MDM Transportation Consultants Inc., prepared a traffic impact and parking assessment for the Project, dated October 4, 2016, which was submitted to the Board as part of the public hearing process ("MDM Study"). SOF, ¶ 61; Tr. Vol. I, at 107, Tr. Ex. 8.

43. Two parking consultants working for the Town provided peer review comments about the MDM Study (Walker Parking Consultants and Environmental Partners), to which MDM responded in a letter to the Town, dated November 21, 2016 ("MDM Peer Review Letter"). Tr. Vol. I, at 108, Tr. Ex. 9.

44. These consultants recommended twenty-seven (27) parking spaces for the Project (or .67 spaces/residential unit for the 40-unit Project), instead of the seventeen (17) initially proposed in the Application, even though eighty (80) would have been the requisite number under the Zoning Bylaw in effect at the time the Project application was filed. Tr. Vol. I, at 108-111. Tr. Ex. 9.

45. The Town amended the Zoning Bylaw after the date of Project application, reducing the parking requirements for the Coolidge Corner neighborhood to require .825 parking spaces per residential unit, such that only thirty-three (33 spaces) would be required for the Project if an application was filed today. Tr. Ex. 1.

46. MDM modified the initial Project design to add parking spaces, recommending to the Board that only twenty-five (25) parking spaces (.625 spaces/residential unit) were necessary for the Project, based on their parking demand analysis. That analysis relied on three sources: U.S. Census Data (Vehicle Ownership by Rental Unit for tract 4004), a publication of the Institute of Transportation Engineers ("ITE") and a 2012 Town Survey (of Vehicle Ownership by Rental Unit), and Town Guest Overnight Parking Program. Tr. Vol. I, at 111-112; Tr. Ex. 8.

47. The Board granted a waiver to Private Defendants to allow no fewer than twenty-five (25) parking spaces (.625 spaces/residential unit). SOF, ¶ 62; Tr. Ex. 1, p.5, Condition 1.

48. I find that twenty-five (25) parking spaces are ample for the Project because of its unique walkable location, with easy access to ample shopping, neighborhood amenities, nearby municipal parking lots, Zipcar availability, and public transportation, particularly in the context of an amended Zoning Bylaw that would require only thirty-three (33) parking spaces today reflecting the expected ratio of automobile ownership among residents.

49. The Project does not include a loading dock or loading zone; rather all deliveries will be made from Centre Street. SOF, ¶ 63-65.

50. The Town does not require residential properties to provide a loading zone. Tr. Vol. I, at 46; Tr. Vol. II, at 459.

51. Under existing conditions, there are no parking spaces or permitted parking on the southerly (eastbound) side of Centre Street directly in front of the Project Site. There are parking spaces on the opposite, northerly side of Centre Street (westbound). SOF, ¶ 66.

52. Under existing conditions, delivery vehicles do not use the rear parking lot of the Project Site because of limited maneuverability, but rather park temporarily on Centre Street. Tr. Vol. I, at 126; Tr. Vol. II, at 464; Tr. Ex's 10, 21 and 22 (also, as observed during my view).

53. I find the incrementally small increase in traffic resulting from the Project will not have a significant impact on traffic operations on Centre Street generally, on plaintiffs, or on plaintiff's condominium. The Project will generate a small number of new vehicle trips entering and exiting the parking garage. For instance, the Project will generate approximately two new vehicle trips entering and eight new vehicle trips exiting the property during each of two morning peak commuting hours (between 7:00 to 9:00 a.m.) and approximately eight trips entering and four trips exiting the property during each of two evening commuting hours (between 4:00 to 6:00 p.m.). Tr. Vol. I, at 127-129.

54. Centre Street is lightly travelled with a current traffic score of Level A. Under Project "build" conditions, there is a negligible degradation of traffic score from existing conditions, reflecting only minimal delay in traffic operations, attributable to the ready availability of neighborhood amenities and public transportation. The resulting traffic score for the proposed Project is Level of Service B for the driveway and Level of Service A for traffic along Centre Street. Tr. Vol. I, at 128-132; Tr. Ex. 8.

55. Although the posted speed limit on Centre Street is 25 miles per hour, the actual speed at which 85 percent of the vehicles travel was somewhat less, 22 mph (southbound) and 24 mph (northbound). Tr. Vol. I, at 134-135; Tr. Ex. 8.

56. The section of Centre Street in front of the Project Site is straight, open and level. Tr. Vol. III, at 501 (and noted during my view).

57. The geometrics of Centre Street in front of the Project Site and the relatively slow movement of traffic minimizes safety risk for vehicles, pedestrians, and bicyclists.

58. The Decision requires installation of three traffic safety features: (a) a stop sign at the end of the driveway; (b) a stop line at the intersection of the Project driveway with Centre Street; and (c) installation of a no parking sign directly in front of the Project, prohibiting parking on the southern side of Centre Street. Tr. Ex. 1.

59. I find that the Project will generate a de minimis increase in the number and duration of delivery and rideshare vehicles temporarily parking in front of the Project Site on Centre Street and obstructing traffic, compared with existing conditions. Some delivery vehicles will park on the opposite side of Centre Street. Tr. Vol. I at 122-123; Tr. Vol. II, at 464; Tr. Ex's 10, 21 and 22.

60. MDM prepared a Sight Line Evaluation Memorandum, dated July 30, 2019 ("MDM Sight Distance Memo), analyzing sight distances for vehicles entering and exiting the proposed Project driveway using the industry standard AASHTO (American Association of State and Highway Transportation Officials) manual. The AASHTO manual references two types of sight distance applicable to the driveway, stopping sight distance (or "SSD," measuring the distance necessary for the driver of a below average driver to stop safely for an object in the roadway) and intersection sight distance (or "ISD," measuring sufficient sight distance for a stopped driver to depart the intersection and enter a street). ISD includes two measurements, a Minimum ISD for safe stopping at an intersection and an Ideal ISD reflecting what is convenient for stopping. Tr. Ex. 17.

61. The minimum required SSD for traffic on Centre Street approaching the proposed driveway (at the posted speed limit) is 155 feet northbound (or 145 feet for the average/85th percentile calculation) [Note 2] and 155 feet southbound (or 130 feet for the average/85th percentile calculation). The SSD available for the proposed Project driveway exceeds AASHTO safety requirements because more than 330 feet would be available both northbound and southbound. Tr. Ex. 17; Tr. Vol. I, at 136-139.

62. The available ISD for the proposed Project driveway is 195 feet northbound and 335 feet southbound, compared with an AASHTO required Minimum ISD of 155 feet both northbound and southbound and an Ideal ISD of 240 feet northbound and 280 feet southbound. The available ISD exceeds the AASHTO Minimum requirements for both directions and the AASHTO Ideal requirement looking southbound, but falls slightly short of the AASHTO Ideal requirement looking northbound by 45 feet northbound. This slight shortfall is a convenience issue and not a safety issue. Tr. Ex. 17; Tr. Vol. I, at 136-140.

63. The intersection of the proposed Project driveway at Centre Street satisfies AASHTO minimum requirements for safety, both as to both types of site distance (SSD and ISD).

64. The Project will not result in significant impacts on the operations on Centre Street. There is limited risk that temporarily parked vehicles will create a safety hazard. Tr. Vol. I, at 130.

Pedestrian and Bicycle Safety

65. The Zoning Bylaw, Section 6.04, requires "[a]dequate sight distance so that exiting vehicles have a clear view of any pedestrian on the sidewalk within a minimum of five (5) feet to either side of the entrance or exit drive measured from six (6) feet behind the property line and along the centerline of the driveway." Tr. Vol. I, at 141-142; Tr. Ex. 16.

66. AASHTO does not establish sight distance requirements for pedestrian safety. Tr. Vol. II, at 416-421, 474.

67. The design of the proposed Project driveway is safe for pedestrians because there is approximately 40 feet of sight distance available on either side of the driveway, well above the Zoning Bylaw requirement. Tr. Vol. I, at 142; Tr. Ex. 17.

68. Although there was no bicycle lane on Centre Street at the time the Decision issued, a bicycle lane was marked on Centre Street in front of the Project Site and observed during my view. Tr. Vol. I, at 143-144. The Decision itself does not mention a bicycle lane or bicycle safety.

69. The Town of Brookline's regulations relating to bicycle transportation require that the operator of a bicycle in the Town of Brookline shall ride at a speed no greater than an ordinary walking speed when on a sidewalk or when entering or leaving a sidewalk. Tr. Vol. II, at 476-478.

70. No evidence was introduced that the Condominium residents use the bicycle lane on Centre Street.

Trees

71. Plaintiffs have identified nine (9) trees on or near the property line between the Project Site and Plaintiffs' parking lot on Centre Street, which they believe to be at risk. These trees are identified as Tree Numbers 9932, 9933, 9934, 9935, 9936, 9938, 9940, 9941, and 9942 and appear on the Feldman Survey Plan. SOF, ¶ 69; Tr. Ex.'s 13, 18.

72. The trunks of Trees 9932, 9933, 9934, and 9935 are located wholly on Plaintiffs' property, with only roots and branches overhanging the boundary onto the Project Site. Tr. Ex.'s 13, 18; SOF ¶¶ 91, 104, 114, 123.

73. There are five trees located on the boundary between the Project Site and the Condominium parking lot (in other words, the tree trunks are on both sides of the boundary line): Trees 9936, 9938, 9940, 9941 and 9942 (the "Boundary Line Trees"). Tr. Ex.'s 13, 18; SOF ¶¶ 134, 143, 153, 162, 172.

74. Tree 9936 is either a Red Oak or a Pin Oak; any difference in classification is not material for the purposes of this Decision. Tree 9938 is a Norway Maple. Tree 9940 is a Tree of Heaven. Tree 9941 is a Tree of Heaven. Tree 9942 is a Sycamore Maple. The height and diameter of each of the Boundary Line Trees is as follows: Trees 9936 (diameter of ten inches and height of fifty feet), 9938 (diameter of eight inches and height thirty-four feet), 9940 (diameter of nine inches and height of thirty-eight feet), 9941 (diameter of fifteen inches and height of forty-five feet) and 9942 (diameter of eight inches and height of thirty feet). Tr. Ex. 14; SOF ¶¶ 135, 144, 154, 163, 173, 174. [Note 3]

75. Under existing conditions, a chain link fence runs along the boundary line with the fence embedded in the tree trunks between the Project Site and the Condominium parking lot. On Plaintiffs' side of the fence, a four foot wide unpaved strip of land runs along the fence, between the fence and the parking lot asphalt. On the Project Site, a foot wide unpaved strip runs along the fence, between the fence and a concrete walkway. Tr. Vol. II, at 235-238 (and as observed during my view); Tr. Ex.'s 21, 22.

76. Four of the five Boundary Line Trees are in fair condition: Trees 9936, 9940, 9941 and 9942. Abrasions and deadwood appeared at the tops of these trees, and the chain link fence was embedded in the Boundary Line Trees (the trees were growing around and through the fence). Tree 9938 is in good condition. SOF ¶ 145; Tr. Vol. II, at 251-253, 291, 310-313, 317-319, 321, 353; Tr. Ex's. 21, 22.

77. There is no industry standard for determining tree protection zones. Tr. Vol. II, at 288, 296-297, 340.

78. Without excavating and exposing the structural roots of a tree, it is not possible to determine the location of roots underground. Tr. Vol. II, at 295-297, 301-321.

79. Private Defendants do not intend to damage the five Boundary Line Trees or the four trees located on the Condominium parking lot. Tr. Vol. II, at 357-358.

80. Private Defendants committed to implement measures recommended by arborist John Coppinger to protect the Boundary Line Trees during construction. Those measures include excavating by hand and using an air-spade (a non-invasive pneumatic tool) to determine the actual location of the roots preserving the roots by placing structural soil (mostly gravel) around the roots and avoiding cutting them, lifting up the existing walkway and putting in structural soil to support a new walkway, thereby preserving the roots and limiting equipment driving around in the tree protection zone. Tr. Vol. II, at 315- 316, 329-330, 346-347, 357-358.

81. If these protective measures are implemented, the extent of damage to the Boundary Line Trees will be significantly minimized, although the specific amount of damage is uncertain. Although the trees may suffer limited damage by the proposed construction of the Project, they will not be wholly damaged. Tr. Vol. II 315-16, 330, 346-47; Tr. Vol. III at 357-58.

82. The present-day value of the nine trees at issue, including both the Boundary Line Trees and the trees located on Plaintiff's property, is $1,551.00. Tr. Vol. II, at 278, 356.

DISCUSSION

I first address Plaintiffs' challenge to the grant of the comprehensive permit in the Land Court Case and then turn to Plaintiffs' claims in the Superior Court case seeking to prevent injury or death to trees on or near the common boundary between the Project Site and the Condominium parking lot.

I. CHALLENGE TO THE COMPREHENSIVE PERMIT

Plaintiffs seek to have the Board's Decision annulled. Plaintiffs contend that the Decision was arbitrary, capricious, and an abuse of discretion because the Project's inadequate trash and recycling management arrangements, design deficiencies, inadequate on-site parking and lack of a loading zone, together overload the Project Site and create unsafe conditions for vehicles, pedestrians, and bicyclists. According to Plaintiffs, the Board's excessive grant of waivers from the Zoning Bylaw's dimensional requirements failed to strike an appropriate balance between the need for affordable housing in Brookline and legitimate public safety and environmental concerns. [Note 4] Private Defendants contend that Plaintiffs do not have standing to appeal the comprehensive permit and that the Decision was properly issued.

Chapter 40B has long been recognized as providing "relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate incoming housing." Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 354 (1973). Chapter 40B establishes a streamlined comprehensive permitting process so that developers of affordable housing can file a single application with a local zoning board of appeals and the local board is authorized to waive local zoning requirements which are "not consistent with local needs." Hanover, supra, 363 Mass. at 355; Reynolds v. Zoning Bd. of Appeals of Stow, 88 Mass. App. Ct. 339 , 345 (2015). For cities and towns like Brookline that have not met a minimum statutory threshold of affordable housing, a project need not comply with density, height, dimensional and other limitations that are "often invoked as a pretext to exclude affordable housing." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 29 (2006). The decision of a local board granting a comprehensive permit "cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 96 (2007).

A. Standard for Standing

A person aggrieved by the grant of a comprehensive permit may appeal the board's decision to the Land Court pursuant to G.L. c. 40B, § 21, in the manner prescribed in G.L. c. 40A, § 17. The threshold question before this court is whether Plaintiffs are aggrieved by the grant of the comprehensive permit and possess standing to appeal the Board's Decision. The term "person aggrieved" has generally the same meaning under both Chapter 40B and G.L. c. 40A. Standing presents a question of the subject matter jurisdiction for the court that must be resolved before proceeding to the merits. Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998); Monks v. Zoning Bd. of Appeals, 37 Mass. App. Ct. 685 , 687 (1994).

Abutters are entitled to a rebuttable presumption that they are persons aggrieved under Chapter 40B. Kirk v. Li, 27 LCR 1 , 33 (January 7, 2019) (Case No. 17 MISC 000281) (Foster, J.). Although entitled to a presumption of aggrievement, abutters nonetheless "bear the burden of proving aggrievement necessary to confer jurisdiction." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012), citing Standerwick, 447 Mass. at 34-35. A defendant may rebut that presumption by offering evidence "warranting a finding contrary to the presumed fact of aggrievement." Standerwick, supra, 447 Mass. at 34, quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). Once rebutted, jurisdiction is to be decided on the basis of all of the evidence with no benefit to the plaintiff from the presumption. Reynolds, supra, 88 Mass. App. Ct. at 345, quoting Jepson, 450 Mass. at 89.

Plaintiffs must establish "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Standerwick, 447 Mass. at 27-28, quoting Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). "Aggrievement requires a showing of more than minimal or slightly appreciable harm....The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to see a remedy....Put slightly differently, the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121-122 (2011). As the Supreme Judicial Court recently affirmed in Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209 , 215 (2020): "Speculation and conjecture are not evidence, and in any event, more than a 'minimal or slightly appreciable' harm is required." Further, "[n]either conjecture nor speculative personal opinion substitutes for proof." Id.

B. Plaintiffs' Presumption of Standing.

The Condominium's property directly abuts the Project Site (the Condominium building lies directly south of the Project Site and the parking lot directly to the west). Therefore, Plaintiffs are presumed to be persons aggrieved by the Board's Decision.

C. Rebuttal of the Presumption

Private Defendants may rebut that presumption by producing credible evidence contradicting Plaintiffs' claimed aggrievement or by showing that they lack any evidence that they would suffer harm. Two areas of alleged aggrievement proceeded to trial after the Partial Summary Judgment Order: (1) trash and recycling management and (2) traffic and parking. According to Plaintiffs, the Project Site is overcrowded as result of "extreme dimensional waivers" of the Zoning Bylaw granted by the Board, resulting in a Project that creates new public safety and environmental hazards that impact them and the community. [Note 5] I now examine these two areas of alleged aggrievement.

1. Trash and Recycling Management.

To rebut Plaintiffs' alleged aggrievement based on trash and recycling inadequacies, Private Defendants presented testimony from three witnesses: Maloney, a licensed Public Health Officer in the Commonwealth of Massachusetts who served as the Chief of Environmental Health for the Town at the time of the Board issued its Decision; Harding, a registered architect and the lead designer for the Project, who described the Project design for trash and recycling; and, Roth, the LLC's manager. These witnesses addressed Plaintiffs' concern that the building and Project Site could not effectively handle the amount of waste generated by the Project without harming Plaintiffs.

a. Testimony of Maloney

Private Defendants submitted a Trash Narrative to the Board to demonstrate that the proposed Project would comply with the State Sanitary Code and the Town's Solid Waste Regulations. The initial design contemplated a trash chute into a trash room with two 2-yard containers for trash (with a compactor to condense the rubbish) and one two-yard container for recycling that would be rolled out to the curb for pickup by a private waste hauling contractor twice a week. Maloney reviewed the Project application and the Trash Narrative on behalf of the Town. Based on Maloney's recommendation to the Board, as set forth in the First Maloney Memo, Private Defendants modified their plan to add a second two-yard recycling container, thereby expanding capacity without increasing the number of pickups each week. Maloney expressed a preference for expanding the trash room in this manner, instead of increasing the number of waste pickups per week in order to mitigate impact on the neighborhood. Maloney testified that this modified configuration with two two-yard containers for each of trash and recycling was sufficient for the Project. In the First Maloney Memo, he also recommended that his Department be able "to revisit the issue of compliance when the property was 90% occupied" to confirm the plan details and require a third two-yard trash container, if necessary. Tr. Ex. 4. Maloney's recommendations were reflected in the Decision, which required a total of four or five containers (two for trash and two for recycling, plus a third trash container, if necessary), instead of the three originally proposed in the Trash Narrative (two trash and one recycling). Sub-condition 13(a) permits a third waste pickup per week, if necessary. I credit Maloney's testimony regarding the sufficiency of storage capacity based on his long experience with the Town overseeing waste collection matters (26 years). Tr. Vol. I, at 40.

The Decision included eleven (11) detailed Sub-conditions governing trash and recycling management for the Project, specifically Sub-conditions 13 (a) through (k), and required Town review of a final trash plan for compliance with Town regulations and those Conditions before issuance of a Building Permit. No waiver was sought from the Brookline Solid Waste Regulations and none was included in the Decision. It was undisputed that the Project would comply with both the Brookline Solid Waste Regulations and the State Sanitary Code.

b. Testimony of Harding

During his testimony, Harding identified the trash room on the Project plans, as shown on Sheet A-101, as sufficiently sized to accommodate four two-yard containers. Harding acknowledged there may be a need to fit a fifth two-yard trash container in the trash room consistent with Condition 13 (a) of the Decision, but testified that Cube 3 had not yet prepared a revised plan for that circumstance because only preliminary plans had been prepared for submission with the Project application, consistent with the practice for many Chapter 40B project applications. Harding testified that he intended to prepare final plans before applying for a building permit. Reardon confirmed this process for comprehensive permit applications.

On cross-examination, Harding acknowledged that the Town might require an additional recycling container as well, for a potential of six total containers. Harding was confident that there was enough space in the trash room for six containers, but when pressed he admitted that the fit would be tight and that he hadn't thought through how the containers could be maneuvered within the trash room confines as a practical matter. Tr. Vol. I, at 75-77, 93-102; Tr. Ex. 1, Sheet A-101. Harding remained confident on cross-examination that the design of the trash room could be reconfigured to accommodate a fifth and sixth container or, if necessary, the size of the trash room could be expanded in the final design. I credit Harding's testimony that an additional container or two could be accommodated in the overall Project design, based on his detailed testimony, forthright manner under cross-examination, thoughtfulness about how the original design was conceived and how it might need to change in final plans, consistent with the design process for other Chapter 40B projects.

c. Testimony of Roth

In response to Plaintiffs' concern about waste trucks temporarily obstructing Centre Street in the absence of a loading dock, Roth testified that he would arrange with the property management company for the apartment building to bring trash and recycling to the side of the street just when waste hauling trucks were nearing the Project. That way, the containers could be emptied promptly without sitting on the sidewalk for a prolonged duration and immediately brought back inside. Tr. Vol. I, at 202-203. This approach with quick turnaround times for curbside waste pickup is consistent with the Sub-conditions in Condition 13 of the Decision, particularly Sub-condition 13(j) which prohibits containers from being stored in the public way at any time, Sub-condition 13(k) prohibiting containers from being stored in the front yard during the busiest hours of the day for Centre Street (8:00 AM to 11:00 PM on weekdays and weekends) and Sub-condition 13(i) requiring a schedule for pickup demonstrating compliance with the Town bylaw. I conclude that these Sub-conditions effectively mitigate the potential public safety risks identified by Plaintiffs. I credit Roth's testimony that that he would arrange with the property management company for the apartment building to bring trash and recycling to the side of the street just when waste hauling trucks were nearing the Project. In fact, Plaintiffs' expert witness Sean Reardon testified that this approach would address his concerns. Tr. Vol. III, at 512.

I find that Private Defendants have rebutted the Plaintiffs' claimed aggrievement with respect to trash and recycling management by producing credible evidence warranting a finding that the Project would operate without harm to Plaintiffs.

2. Traffic, Parking and Streetscape.

To rebut Plaintiffs' presumption of standing based on traffic and parking concerns, Private Defendant presented testimony by registered civil engineer Mills of MDM Transportation Consultants, Inc., as well as testimony by Roth about building management for the exterior portions of the Project Site. Mills, who holds a professional certification as a Professional Traffic Operations Engineer, prepared the MDM Traffic Assessment, which was submitted to the Board as part of the public hearing process. Two consultants working for the Town provided comments to MDM (Walker Parking Consultants and Environmental Partners), as to which MDM responded in a letter to the Board, dated November 21, 2016. Those consultants recommended twenty-seven (27) parking spaces for the Project (or .6 spaces/residential unit for the 40-unit Project). These witnesses successfully rebutted Plaintiffs' concern that the Project had too few parking spaces, lacked a loading dock, and that its design would result in public safety risks for vehicles, pedestrians, and bicyclists travelling on Centre Street.

a. Testimony of Mills

Ultimately, the Decision required twenty-five (25) parking spaces, whereas the requisite number of parking spaces under the Zoning Bylaw in place at the time the Project application was filed was eighty (80). However, as Mills pointed out during his testimony and as noted in the Decision, the Zoning Bylaw was revised while the Private Defendants' application for a comprehensive permit was pending, such that under the revised and now current Bylaw only thirty-three (33) parking spaces would be required for a project of this size in this neighborhood, not eighty (80). Tr. Ex. 1. At trial, Mills testified that twenty-five (25) parking spaces were sufficient for the Project based on the parking demand analysis in MDM's Study, with particular attention to a number of local factors, including: the walkability of the surrounding urban neighborhood, with shops, groceries, restaurants and amenities all within walking distance to the Project Site (the Project Site is a block or two from Coolidge Corner); the Project Site's close proximity to public transportation one block away (via the MBTA Green Line), as well as a number of bus routes nearby; the location of a large public parking lot immediately across Centre Street, a Zipcar location in a second Centre Street parking lot immediately adjacent to the Project Site on its northern boundary; [Note 6] and, the availability of parking programs run by the Town, such as an overnight parking program and a temporary parking program, if needed.

In terms of vehicular traffic generated by the Project, according to MDM's Assessment, approximately two vehicles would enter the proposed Project and eight vehicles would exit each morning during each of two commuting hours between 7:00 to 9:00 a.m. In the evening, during the 4:00 to 6:00 p.m. commuting hours, MDM calculated eight vehicles entering and four vehicles exiting each hour. Mills testified that in his experience this was a small incremental increase in traffic and was on the extreme low side for a new project, reflecting the proximity of public transportation and walkability of the location. The resulting traffic level of service for the proposed Project as calculated by MDM, would be Level of Service B for the driveway and Level of Service A for traffic along Centre Street, reflecting only minimal delay in traffic operations. In comparison, MDM calculated the Level of Service for the existing driveway as Level B and calculated a Level of Service A for existing traffic along Centre Street. The Level of Service stayed very consistent as between the existing condition and the projected condition.

With respect to sight distances, Mills testified with reference to the thorough and detailed MDM Sight Distance Memo. That memo analyzed sight distances for vehicles entering and exiting the proposed Project driveway using the industry standard AASHTO manual. The AASHTO manual references two types of sight distance applicable to the driveway, stopping sight distance (or "SSD", measuring the distance necessary for a below-average driver to stop safely for an object in the roadway) and intersection sight distance (or "ISD", measuring sufficient sight distance for a stopped driver to depart the intersection and enter a street). ISD includes two measurements, a minimum intersection sight distance for safe stopping at an intersection and an ideal intersection sight distance reflecting what is convenient.

Mills testified that the proposed Project driveway satisfied AASHTO minimum requirements for vehicular safety, as to both types of site distance. Tr. Ex. 17. Mills and MDM calculated the minimum required SSD for traffic on Centre Street approaching the proposed driveway (at the posted speed limit) to be 155 feet northbound (or 145 feet for the average/85th percentile calculation) and 155 feet southbound (or 130 feet for the average/85th percentile calculation). According to MDM's calculations, the SSD available for the proposed Project driveway exceeded these safety minimums because more than 330 feet would be available both northbound and southbound. Tr. Ex. 17. I credit this testimony.

Mills also testified as to MDM's calculations for the available ISD for a vehicle exiting the garage under STOP control (because a Stop sign was required by the Decision) and compared that to both the AASHTO ISD Minimum and Ideal. The available ISD was 195 feet northbound and 335 feet southbound, compared with a Minimum ISD of 155 feet both northbound and southbound (the Ideal ISD was calculated to be 240 feet northbound and 280 feet southbound). The available ISD exceeded the AASHTO Minimum requirements for both directions and the AASHTO Ideal requirement looking southbound, but fell slightly short of the AASHTO Ideal requirement looking northbound by 45 feet northbound. Tr. Ex. 17. Based on Mill's testimony, experience and credentials, I credit Mills' explanation that this slight shortfall in Ideal ISD was a convenience issue and not a safety issue. He recommended that any vegetation or landscape features be maintained at a height of two feet or less within the driveway sight lines in order to optimize visibility. Tr. Vol. I, at 133-140. The Decision reflected these limitations in Condition 14, requiring that: "Plantings within five (5) feet of either side of the driveway and within the first six (6) feet of the front yard shall be no higher than three (3) feet for optimal driver visibility." Tr. Ex's. 1, 17. Mills also testified that safety risks in this area of Centre Street would be minimized because the actual speed under existing conditions (22-24 miles per hour), is below the posted speed limit (25 miles per hour). In addition, he noted that the section of Centre Street in front of the Project Site is straight, open and level.

Mills also testified about pedestrian safety. Mills did so by reference to the Zoning Bylaw, instead of AASHTO because AASHTO does not establish sight distance requirements for pedestrian safety standards. Tr. Vol. II, at 46; Tr. Vol. III, at 416-421. The Zoning Bylaw requires a minimum of five (5) feet of visibility on either side of an exit or entrance. Mills testified that the driveway was safe as designed because approximately forty (40) feet was available on either side, well more than the requisite five (5) feet. Mills testified that pedestrian safety was further supported by two safety features in the Decision, which required a stop sign at the end of the driveway and a stop line at the intersection of the Project driveway and Centre Street. In addition, Mills testified that because the driveway is designed to be 24 feet wide, it provides supplemental site distance of twelve (12) feet (compared with ten (10) feet at present), in the event of illegally parked vehicles in front of the Project Site. Tr. Vol. I, at 140-144.

As to loading and delivery operations, Mills testified that there would be no discernable difference between existing conditions and those with the proposed Project in place. He compared his observations of existing conditions with his analysis based on the Institute of Transportation Engineers Trip-Generation Manual ("ITE Manual") and U.S. Census data, which indicated a high use of public transit for the neighborhood. Under existing conditions, Mills testified that approximately four deliveries per day were made to the Project Site, with delivery vehicles parking on either side of Centre Street. Several photographic exhibits of existing conditions confirmed this practice, showing a Fed Ex truck and USPS vehicle parked in front of the Project Site. Mills testified that delivery trucks do not use the existing driveway and rear parking lot to make deliveries because of the driveway is narrow and the area for maneuvering and turning is limited. Tr. Vol. I, at 124-126; Tr. Ex's 10, 21, 22. (and as observed during the view).

b. Testimony of Roth

With respect to parking, Roth testified that he considered a number of factors when preparing his comprehensive permit application. These included observing public parking available within the vicinity of the Project Site and public transportation available within close proximity to the Project Site. Roth engaged a parking consultant, separate from the Board's peer review consultant, to look into the issue of sufficiency of parking. Tr. Vol. I, at 190-192.

I find and rule that Private Defendants have succeeded in rebutting Plaintiffs' presumption of standing as to parking and traffic concerns, by offering evidence "warranting a finding contrary to the presumed fact." 81 Spooner Road, LLC, supra, 461 Mass. at 700-701, quoting Marinelli, supra, 440 Mass. at 258 (2003). Specifically, Private Defendants presented credible expert testimony that twenty-five (25) parking spaces were ample for this uniquely walkable location, with easy access to shopping, neighborhood amenities and public transportation, particularly in the context of an amended Zoning Bylaw that would require at most only thirty-three (33) parking spaces in this neighborhood. Private Defendants' expert traffic expert testified, and I find, that the Project design satisfied industry standards for vehicular traffic along Centre Street and the local Zoning Bylaw requirement for pedestrian safety, both as augmented by safety features required by the Decision and relatively slow traffic on this level and straight portion of Centre Street.

D. Plaintiffs' Evidence of Harm.

Private Defendants have rebutted Plaintiffs' presumption of standing, so I turn now to Plaintiffs' evidence in support of their allegations that they will suffer injury as a result of the Project. Plaintiffs must now "establish - by direct facts and not be speculative personal opinion - that [their] injury is special and different from the concerns of the rest of the community." Standerwick, supra, 447 Mass. at 33, quoting Barvenik v. Bd. of Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). At this point, jurisdiction is decided on the basis of all of the evidence, Plaintiffs bearing the burden of proving aggrievement necessary to confer standing. 81 Spooner Road, supra, 461 Mass. at 701. Plaintiffs are not required to prove by a preponderance of the evidence that their claims of particularized harm are true, but must put forth credible evidence to substantiate their allegations. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). To meet the standard of "credible evidence," the evidence offered must provide specific factual support for each claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005).

1. Trash and Recycling Management.

To support their contention of harm arising from the proposed Project's plan for trash and recycling management, Plaintiffs sought to establish that there is simply not enough room inside the proposed building or on the overbuilt Project Site to safely accommodate trash and recycling operations, particularly when coupled with traffic and parking deficiencies. Plaintiffs offered the testimony of expert witness Sean Reardon, P.E. of Tetra Tech, Inc. ("Reardon"), as well as Plaintiffs Elissa Rosenthal and Stanley "Ted" Belastock, and cross-examined Private Defendants' witnesses. I first consider Plaintiffs' evidence regarding internal building operations and then external building operations.

a. Testimony of Reardon with respect to internal building operations.

Reardon was critical of the trash room design and questioned whether it was large enough to handle a fifth or sixth container for trash and/or recycling. Based on his review of the dimensions of the trash room and the ground floor plan, Sheet A-101, Reardon was also skeptical that the trash room could be expanded, if necessary, without adversely impacting the interior pedestrian walkways or the garage driving lanes. However, Reardon did not conclude the arrangements were unworkable, rather he stated they were "pushing the upper limit of four tote arrangement" for forty units of residential housing. Tr. Vol. II, at 382-384. When pressed, he acknowledged that six containers would probably fit in the trash room as currently designed on Sheet A-101, although it would be operationally challenging. Tr. Vol. II, at 375-376. He also acknowledged that Sub-condition 13(c) required the Project to comply with the State Sanitary Code and the Brookline Solid Waste Regulations. Tr. Vol. III, at 506.

Reardon was also critical of Private Defendants for failing to undertake a quantitative analysis to size the number and types of trash and recycling containers. That criticism, however, was not substantiated in any way. Reardon acknowledged that he was not a registered sanitarian and had limited expertise in determining the quantity of trash this or any other project would generate. Tr. Vol. III, at 502-504. Each of Harding, Roth and Maloney testified that it was industry practice for architects, developers and town officials to consult with waste hauling companies to determine requirements for sizing and pickup of trash and recycling. All three testified that Private Defendants had based their design on input from a waste company, which I find to be adequate.

While I credit Reardon's concern that the Project design lacked available internal transition space for contingencies, as borne out by review of the plans themselves, I conclude that constraint alone does not establish Plaintiffs' aggrievement for the purposes of standing. Because the constraints of the Project Site are an operational issue for the property owner and because the Decision puts careful limits and controls on the proposed Project, internal operating issues need not impact the exterior public realm, the Plaintiffs or the neighborhood. There was no evidence to the contrary.

b. Testimony of Reardon with respect to external building operations.

As to safety hazards arising from external trash and recycling operations, Reardon testified that the lack of available contingency or swing space on the Project Site created a safety risk when trash and recycling containers were brought outside for pickup. According to Reardon, unsafe conditions would occur when the containers were wheeled out of the trash room on the west side of the building to the public sidewalk awaiting pickup. He testified that if left unattended on the sidewalk, the containers would obstruct the flow of pedestrians and might roll off the sidewalk and into Centre Street. He also testified that compared to existing conditions, there would be an increased number and duration of waste trucks stopping at curbside, temporarily obstructing traffic and limiting visibility for vehicles exiting the Project garage. Reardon testified that this limited visibility created unsafe conditions for pedestrians and bicyclists traveling in front of the Project Site and also for cars leaving the Condominium parking lot. Tr. Vol. II at 396-402, 446.

For the reasons discussed below, I conclude that Reardon's safety concerns about waste hauling trucks were theoretical and speculative in nature. He provided no quantitative analysis to support of his conclusion that there would be a material increase in the duration of curbside waste pickups and corresponding obstruction of Centre Street (for instance, in terms of minutes per week). Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Butler, 63 Mass. App. Ct. at 441; Sweenie, 451 Mass. at 546. At most, based on the permitted Conditions, the number of waste pickups would increase from one to two or possibly three per week. The duration of those pickups would be brief because Private Defendants committed to have the property manager bring the containers outside just as the trucks approached and bring them inside immediately afterwards. On cross-examination, Reardon conceded that this approach would address his concerns. Tr. Vol. III, at 512. In addition, his stated concern for the safety of pedestrians and bicycle riders on the sidewalk when containers were awaiting pickup was undercut by the quick turnaround time for pick ups as discussed above and by his acknowledgement of the Town of Brookline's requirements for operation of bicycles on the sidewalk. More specifically, the Town requires that "the operator of a bicycle shall ride at a speed no greater than an ordinary walking speed when on a sidewalk or when entering or leaving a sidewalk." Reardon also acknowledged there were no AASHTO or other applicable industry standards governing temporary obstructions. Tr. Vol. II at 473-475. As such, I conclude that Reardon's generalized concerns are insufficient to serve as the basis for Plaintiffs' aggrievement, particularly where neither Rosenthal nor Belastock testified that existing trash pickups affected their lives in any concrete way. Lastly, the risk of a container tipping into the street is speculative and quantitatively insufficient and would be minimized by the supervision of the property manager bringing the containers curbside. I conclude that the evidence of injury to the Plaintiffs from external trash and recycling management was speculative and did not credibly demonstrate even a de minimis injury to Plaintiffs.

2. Traffic and Parking.

To support their contention of harm arising from the proposed Project's plan for traffic and parking, Plaintiffs sought to establish that the Project presents unmitigated safety threats from Project related vehicular traffic. Plaintiffs again offered the testimony of expert witness Reardon, as well as Plaintiffs Rosenthal and Belastock.

a. Testimony of Reardon.

With respect to traffic safety, Reardon's concerns centered on the lack of a loading dock or other contingency or swing space on the Project Site. He testified that in addition to waste haulers, there would be an increase in the number of illegally parked vehicles on Centre Street in front of the Project Site, such as delivery vehicles, movers, and ride share vehicles. According to Reardon, illegally parked vehicles posed a safety risk by obstructing the travel lane in front of the Project, limiting visibility for vehicles exiting from the Project garage looking west and vehicles exiting from Plaintiffs' Centre Street parking lot looking east. Tr. Vol. II, at 396-402.

Here again, I find that Reardon did not have data to support his conclusion that there would be a substantial increase in the number of deliveries if the proposed Project proceeded, compared with existing numbers. He projected, in general, an almost tenfold increase in the duration of delivery vehicles, movers and other temporary loading and drop offs compared to existing conditions. When pressed, however, he acknowledged that his conclusion was based on the sheer logic of increased density of use alone and that he had not quantified what the net change would be in terms of the number or duration of new vehicles illegally parking. Tr. Vol. II, at 445-446; Tr. Vol. III at 499-500. Nor did he address Mills' observation that some of delivery vehicles now park and will park on the opposite, northbound side of Centre Street. Tr. Vol. I at 122 [Note 7] Reardon's conclusion was speculative and quantitatively insufficient to counterbalance the contrary conclusions of Mills, which logically and credibly flowed from his sound quantitative analysis. See McDonagh v. Johnson, 27 LCR 688 (2019) (Piper, J.). Also missing was any data or traffic analysis about how many vehicles exit the Condominium parking lot onto Centre Street each hour (or each day, or each week), any data about how many of those vehicles turn right toward the Project Site (instead of left) or any analysis about how any such exiting vehicles would be affected by a temporarily illegally parked vehicle. Neither Belastock nor Rosenthal testified that they parked their vehicles in that parking lot, but instead parked in the Condominium's underground parking garage and exited onto Winchester Street. Tr. Vol. III, at 560. I conclude Reardon's concerns were theoretical, speculative, and unsubstantiated.

In addition, Reardon's concern about vehicular visibility was countered by the Project's compliance with AASHTO safety standards. Mills analyzed SSD and ISD and found that the Project satisfied AASHTO industry standards for each. Reardon did not disagree with those calculations or with Mills' determination that the Project design complied with AASHTO standards. Tr. Vol. II, at 400-402; 465-471. Tellingly, Reardon did not identify any AASHTO or other industry standard authority to support his theory that temporarily stopped vehicles created a public safety hazard. To the contrary, as Mills testified, AASHTO does not require traffic engineers to consider temporary obstructions as part of a traffic study, nor are temporary obstructions prohibited by AASHTO. Tr. Vol. II, at 425-426, 454-456, 465-467.

As to Reardon's concern about pedestrian safety, the Zoning Bylaw, Section 6.04(4)(f)(1), requires that vehicles exiting a driveway have a clear view of any pedestrians on the sidewalk with a minimum of five feet to either side of the entrance or exit driveway, measured from six feet behind the property line and along the centerline of the driveway. In comparison, the Project design provides forty (40) feet of sight distance for exiting vehicles on either side of the driveway. Both Reardon and Mills agreed the driveway satisfies and exceeds this standard. Indeed, Reardon conceded that he was not concerned about the safety of pedestrians or joggers because their speeds were too slow. Tr. Vol. I, at 141; Tr. Ex. 16; Tr. Vol. II, at 417-419, 494- 495; Tr. Ex. 16.

The Decision also required a number of safety features to manage the risks posited by Reardon. These included installation of a no parking sign in front of the Project Site (prohibiting parking on the southwest side of Centre Street), a stop sign at the end of the driveway, and a stop line at the intersection of the Project driveway with Centre Street. Mills testified that the no parking sign would reduce the likelihood of vehicles parking illegally in front on the building, which Reardon did not dispute. Tr. Vol. I, at 157.

Reardon's last concern was bicycle safety. Although there was no bicycle lane on Centre Street at the time the Decision issued, a bicycle lane was marked on Centre Street in front of the Project Site and observed during my view. The Decision itself does not mention a bicycle lane or bicycle safety. [Note 8] Despite Reardon's concerns, I need not discuss bicycle safety at length because no evidence was introduced that the Condominium residents used the bicycle lane on Centre Street and neither Belastock nor Rosenthal testified as to riding a bicycle on the sidewalk or bicycle lane on Centre Street. As such, this concern alone cannot serve as the basis for Plaintiffs' claim of aggrievement.

E. Particularized Injury.

I now turn to the question of whether Plaintiffs have provided credible evidence to show that the injury they would suffer as a result of the Project is "special and different" from that suffered by the community at large. Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682. (2002); See Standerwick, supra, 447 Mass. at 33; Barvenik, supra, 33 Mass. App. Ct. at 129. Rosenthal said her concerns about the proposed were increased traffic, increased safety risk, increased density and it is just too big of a structure for that parcel. Her testimony was generally vague, conclusory, and unsubstantiated. See Sweenie, 451 Mass. at 545-546; Barvenik, supra, 33 Mass. App. Ct. at 129. At times, particularly when expressing concern about density or describing her concern that the proposed Project was just being too big for the Project Site, Rosenthal strayed into criticism of interests that are protected by Chapter 40B. See Hanover, supra, 363 Mass. at 345-355. In his testimony, Belastock expressed generalized concern about safety, both as a pedestrian and a driver. He testified that when he drives on Centre Street, he is always concerned about the parking of commercial vehicles that obstruct occasionally and restrict safe driving.

The concerns voiced by Rosenthal and Belastock were not concerns unique to them or other members of the Condominium, but affected the community at large. See Ricker v. 3253 Washington LLC, 93 Mass. App. Ct. 1121 (2018) (Rule 1:28 Decision) (affirming lower court's finding of no standing because plaintiffs did not distinguish their claimed injuries from those that would be suffered by others in the neighborhood); Butler v. Waltham, 63 Mass. App. Ct. 435 , 440, (2005) (stating that plaintiff's injury flowing from the board's decision must be "special and different from the injury the action will cause to the community at large"); Barvenik, supra, 33 Mass. App. Ct. at 132 (affirming lower court's finding of no standing because plaintiffs had shown "no effect of the grant [of the special permit] on them different from that of the general populace of Newton."); Cross v. Volo, 16 LCR 725 , 729 (2008) (Grossman, J.) (finding no aggrievement with respect to parking/traffic since plaintiffs failed to show that traffic or parking related injuries were distinguishable from those encountered by the neighborhood or community at large).

Both Rosenthal and Belastock spoke of regular walks to Coolidge Corner and past the Project Site. In this way, they are like the large numbers of people they described who drive on Centre Street and use the sidewalks in the area. When driving, they do not use the Condominium lot on Centre Street, but rather use the Condominium's underground garage with its entrance on Winchester Street. When walking, their paths of travel begin from the rear entry of the Condominium building, through the Condominium's parking lot to access Centre Street, along the sidewalk on Centre Street. Whereas Rosenthal crosses Centre Street after the Project Site, Belastock crosses Centre Street mid-block, through the large public parking lot on the northern side of Centre Street to reach a building called the arcade, which houses commercial establishments on Harvard Street. While Belastock testified that crossing the Centre Street was dangerous, this reflects his acknowledgement that he does not cross at a crosswalk, but rather chooses to cross mid-block. In fact, when asked if the dangers he faced when he was walking down Centre Street were different that those experienced by other elderly pedestrians who don't reside at the Condominium, he replied "No," they are exactly the same. Likewise, when asked if the dangers he faced when operating his vehicle on Centre Street were any different from those experienced by other motorists, Belastock again replied "No." Tr. Vol. III, at 560-561.

With respect to Plaintiffs' claim of insufficient parking, again there was no evidence of particularized harm to Plaintiffs. Even if I were to accept Plaintiffs' contention that the project had inadequate parking, Plaintiffs provided no evidence connecting insufficient parking with any particularized harm to them or the Condominium. "The bare existence of inadequate parking is insufficient, in and of itself, to confer standing; plaintiff must provide evidence of an injury, particular to her, that plausibly flows from that inadequacy." McDonagh, supra, 27 LCR at 688 (citing Cohen v. Zoning Bd. of Appeals, 35 Mass. App. Ct. 619 , 623 (1993).

Nor did Reardon, testifying as Plaintiffs' expert, provide support for why residents of Plaintiffs' Condominium would be impacted more than other members of the community. Even crediting Reardon's concern that temporary vehicles would obstruct sight lines for vehicles exiting the Project driveway or travelling along Centre Street, he did not provide quantitative evidence to indicate that Plaintiffs would be impacted in a manner different from any other drivers or pedestrians on Centre Street. I conclude that Plaintiffs have not provided credible evidence that a de minimis increase in vehicular traffic and illegal parking on the southern side of Centre Street in front of the Project, would create a safety hazard for the individual Plaintiffs or the residents of the Condominium in a way or degree that differs from the impact on the community as a whole. See Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 451 (2008) (court finding that a "slight incremental increase in the number of vehicles" was not enough to confer standing). While it is reasonable to conclude that all members of the neighborhood may be somewhat impacted by the greater density of use on the Project Site, there was no evidence offered that would credibly support a finding that the Chapter 40B redevelopment would negatively impact the Plaintiffs any more than other passers-by. I find that Plaintiffs have not offered evidence of direct injury so as to negate the rebuttal of the presumption of standing. See Nickerson, Mass. App. Ct. at 683-684 (plaintiff lacked standing where "plaintiff's interest is not substantially different from that of all of the other members of the community who are frustrated and inconvenienced by heavy traffic").

Based on all the evidence, I find and rule that Plaintiffs did not substantiate their allegations with credible evidence sufficient to overcome Private Defendants' rebuttal of Plaintiffs' presumption of standing. Because Plaintiffs lack standing, their complaint in the Land Court case must be dismissed. See Marshfield, supra, 427 Mass. at 703. With Plaintiffs lacking standing established, this court has no jurisdiction to consider anything further. Phone Recovery Services, LLC v. Verizon of New England, Inc., 480 Mass. 224 , 230 (2018).

II. INJURY TO TREES

In the Superior Court case, Plaintiffs seek declaratory and injunctive relief to prevent injury or death to any one or more of nine (9) trees located either on or near the common boundary between the Project Site and the Condominium parking lot. Plaintiffs contend that construction of the Project will likely cause irreparable damage to those trees, particularly excavation for the building's foundation, trimming of branches and roots that extend onto the Project Site and compaction of soils on the Project Site. Plaintiffs rely on Massachusetts common law, and two Massachusetts tree statutes, G.L. c. 87, § 11 [Note 9] and G.L. c. 242, § 7 [Note 10].

Similar claims were recently advanced by plaintiffs in another Land Court case challenging a comprehensive permit. Kirk, 27 LCR at 1. In Kirk, Judge Foster undertook "to briefly distill the somewhat convoluted rules" regarding trespass to trees claims, as discussed in the key cases of Shiel v. Rowell, 480 Mass. 106 (2018); Levine v. Black, 312 Mass. 242 (1942); and Michalson v. Nutting, 275 Mass. 232 (1931). I adopt the analysis in Kirk, but do not repeat it here, and rather restate the distillation: "There is no bright line delineating what unilateral actions regarding a shared tree are or are not permitted. Read together the cases on this subject suggest that a property owner cannot act to intentionally destroy a shared tree without the consent of the others who share an ownership interest therein." Kirk, 27 LCR at 55, citing Shiel, 480 Mass. at 110-112; Levine, 312 Mass. at 243-244; Michalson, 275 Mass. at 233-234. After considering the evidence in the Kirk case, Judge Foster denied the abutters' claims, finding that the developer did not intend to cut down the boundary line trees, but rather planned to cut back roots and branches that had grown into the developer's property, under the guidance of a certified arborist.

The Appeals Court affirmed the Land Court's decision in Kirk, with reference to the so called Massachusetts Rule as set out in Michalson and affirmed in Shiel. Kirk v. Zoning Bd. of Appeals of Weston, 97 Mass. App. Ct. 1107 (2020) (Rule 1:28 Decision). The Massachusetts rule allows property owners to cut back overhanging or intruding branches and roots of a tree whose trunk is located on a neighboring property ("Where the trunk of a tree stands wholly on the land of one proprietor, he has been deemed the owner of the entire tree... though there is no doubt of the right of the adjoining proprietor to cut off limbs and roots which invade his premises"). Levine, supra, 312 Mass. at 243; Michalson, supra, 275 Mass. at 233-234. The Appeals Court went on to reject an argument that was raised by Plaintiffs in this case - specifically, that the Massachusetts Rule should be constrained by a reasonableness standard. The Appeals Court stated:

Nothing in the case law suggests that the Massachusetts rule should be constrained by a reasonableness standard along the lines urged by the plaintiffs in the present case, nor by factors such as whether the cutting is 'defensive' (i.e., to abate nuisance) or 'offensive' (i.e., to develop land), or whether the trees are needed to enhance privacy when neighbors live in close proximity to one another.

Kirk, 97 Mass. App. Ct. 1107 .

The Appeals Court also rejected another argument raised by Plaintiffs in this case - that, "because a tree straddling a boundary line is coowned by the property owners on either side of the boundary line, each coowner owes a duty to the other to refrain from harming that tree." Kirk, supra, 97 Mass. App. Ct. 1107 . As was pointed out in Levine, it is difficult to see why either of two coowners of a boundary line tree "should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other's land." Levine, supra, 312 Mass. at 244. Under the facts of the Kirk case, the developer's construction activities did not violate any property rights of the abutters.

Turning to the proposed Project on Centre Street, I first consider the four trees whose trunks are located wholly on Plaintiffs' property. The parties agree that the trunks of Trees 9932, 9933, 9934, and 9935 are located wholly on Plaintiffs' property, with only roots and branches overhanging the boundary onto the Project Site and I so find. Because Private Defendants have an unfettered right to trim roots and branches that intrude from the adjacent Condominium property, they are well within their rights to construct a new building without need to consider whether there might be an impact on the neighboring trees. Shiel, supra, 480 Mass. at 107; Levine, supra, 312 Mass. at 243; Michalson, supra, 275 Mass. at 233.

I focus my discussion below on the five commonly owned trees whose trunks are located on the common boundary line. There are five trees located on the boundary between the Project Site and the Condominium parking lot: Trees 9936, 9938, 9940, 9941 and 9942 (the "Boundary Line Trees"). [Note 11] Notably, under existing conditions a chain link fence also runs along the boundary between the Project Site and the Condominium parking lot. On Plaintiffs' side of the fence, a four foot wide unpaved strip of land runs along the fence, between the fence and the parking lot asphalt. On the Project Site, a foot wide unpaved strip runs along the fence, between the fence and a concrete walkway. Tr. Vol. II, at 235-238 (and as observed during my view). As discussed below, I conclude, based on the evidence presented at trial, that the Private Defendants do not intend to remove or damage the Boundary Line Trees, but rather have committed to implement measures recommended by their arborist to protect those trees during construction. Tr. Vol. II, at 357-358; Tr. Vol. III, at 541.

Plaintiffs' expert, Marc Duntemann ("Duntemann"), was a Board Certified Master Arborist with thirty years of experience, qualified in tree risk assessment from the International Society of Arboriculture ("ISA"), an ISA Instructor for the Tree Risk Assessment Qualification and a Registered Consultant for the American Society of Consulting Arborists. Tr. Vol. II, at 229-230. Duntemann testified that he performed a number of diagnostic tests to evaluate the current condition of each of the Boundary Line Trees. He concluded that all of the Boundary Line Trees were structurally sound, five were in good condition and Tree 9338 was in fair condition. Tr. Vol. II, at 242-243. He categorized a tree to be in fair condition, rather than good condition, if it displayed a bit more asymmetry, slight decline and visually apparent defects, but had no structural issues. Tr. Vol. II, at 243.

Private Defendants' expert arborist, John Coppinger ("Coppinger") also evaluated the condition of the Boundary Line Trees and concluded that four of five were in fair condition: Trees 9936, 9940, 9941 and 9942. Coppinger was a Registered Consulting Arborist with the American Society of Consulting Arborists, a Certified ISA Arborist, and a Massachusetts Certified Arborist. Coppinger so categorized those trees because of abrasions and deadwood at their tops and because the chain link fence was embedded in them (the trees were growing around and through the fence). I credit Coppinger's testimony that the embedded fence created internal stresses and negative effects on the trees over time, particularly during a strong wind (because the rigid fence does not move during a wind storm, but the trees do move). Tr. Vol. II, at 251-253, 291, 310-313, 317-319, 321, 353. His testimony was credible, consistent with my observations of the condition of the trees both in photographs and during the view and in accord with Duntemann's standard for a classifying a tree to be in fair condition. Tr. Ex's. 21, 22, 31. Duntemann testified that the health of the trees was not affected by the embedded fencing, but I find that testimony not credible. Both arborists' testified that the abrasions and scarring were likely related to the trees close proximity to the Condominium parking lot. Tr. Vol. II, at 253. I find Trees 9936, 9940, 9941 and 9942 were in fair condition.

Duntemann and Coppinger both concurred with the importance of a calculating a tree protection zone ("TPZ") for each tree, but disagreed as to methodology. The TPZ is the critical area surrounding a tree within which disturbances to roots, trunk and crown were more likely to cause serious damage to a tree and where elevated protection measures were warranted during construction activities to minimize damage to tree roots and the aboveground portion of a tree ("TPZ"). [Note 12] Tr. Vol. II, at 259. Such elevated protection measures include hand-digging instead of mechanical excavation, minimizing compaction of the surrounding soil, and preservation of the trunk to minimize damage. Tr. Vol. II, at 260-261, 315-316. [Note 13]

At trial, both arborists referred to a Tree Assessment Plan, which located all nine trees on a plan prepared by Feldman Land Surveyors, dated January 10, 2018. Tr. Ex. 14. The Tree Assessment Plan demarcated each tree with a black and red circle, representing the TPZ for that tree as set respectively by Duntemann and Coppinger. Although both arborists testified that the likelihood of harm to a tree is greater where roots are disturbed closer the tree trunk, Duntemann's TPZ circles (black) were in all cases larger than Coppinger's smaller TPZ circles (red), indicating Duntemann's opinion that a larger circumference of care around each tree was required. Both arborists agreed that there is no industry standard for calculating a TPZ. Tr. Vol. II, at 263, 296-297. Duntemann testified that he used the trunk diameter method to determine TPZ, using a multiplier of one and a half feet of distance from a tree for every inch of trunk diameter. Tr. Vol. II, at 263. Coppinger testified that he used guidelines reflecting the species of tree, its condition age and tolerance to construction, with a multiplier of .75, as set forth in a book entitled Trees and Development, a Technical Guide to Preservation of Trees During Landscape Development, by Nelda Metheny and James R. Clark, Tr. Vol. II, at 267, 297-300. [Note 14]

Duntemann testified that he was familiar with Metheney and Clark's work, but had never seen a multiplier of .75 used on a project, and opined that using Coppinger's smaller TPZ instead of his larger protective zone, would guaranty the loss of the Boundary Line Trees. Tr. Vol. II, at 267-268. To explain this conclusion, Duntemann testified that he estimated root loss for these trees at almost 50 percent and crown loss in excess of 25 percent, the latter based on a visual estimation of the location of the proposed building relative to the trees along the boundary line. Tr. Vol. II, at 268-269; Tr. Ex. 14. In terms of root damage, he testified that soil compaction was the biggest construction risk for the trees. Tr. Vol. II, at 258. This is because tree roots need oxygen to breath and soil is composed of 50% particulate matter and 50% air; if the soil becomes compacted (by vehicles, equipment, and materials, for instance), the oxygen is diminished, creating an environment where tree roots struggle. Tr. Vol. II, at 262-263. As to pruning of limbs, Duntemann testified that the ISA standard recommends pruning not more than 25 percent of the crown of a tree at any one time. Tr. Vol. II, at 258.

Coppinger disagreed with Duntemann's conclusion that the Boundary Line Trees would necessarily be destroyed by construction, but conceded that they would not be fully protected from any damage even with protective measures. Tr. Vol. II, at 347. Both arborists agreed that excavation and other construction activities related to the Project would occur within the TPZ for each of the Boundary Line Trees, even using Coppinger's smaller TPZ's. [Note 15] Tr. Vol. II, at 342; SOF, ¶¶ 136, 146, 155, 165, and 176. Coppinger countered Duntemann's conclusion of a guaranteed loss of in several ways. His primary point was that insufficient information was available to conclude the trees would be a guaranteed loss. Tr. Vol. II, at 354-355. According to Coppinger, specific information about the Project design and limits of construction were needed to make such a determination and were not yet available. Coppinger testified that it was not unusual for tree protective measures to be developed with the aid of an arborist at a later stage of Project design. [Note 16] Tr. Vol. II, at 345. Coppinger also testified that specific information was lacking as to the location of all of the structural roots of the Boundary Line Trees.

Duntemann concurred that locating structural roots was a central concern for tree preservation and had undertaken to do so. Duntemann used a survey pin to probe down into the soil every four to five inches along the fence line to see if he could identify roots projecting into the Project Site. Tr. Vol. II, at 249-250. Coppinger testified that this methodology was inconclusive because it located only superficial roots and did not identify the location of the majority of the root system which was hidden underground. Tr. Vol. II, at 345. I credit Coppinger's skepticism as persuasive and well-reasoned, particularly in light of Duntemann's testimony about the results of his probe test. Duntemann reported that he found at least one structural root growing into the Project Site for each of the nine trees he examined, and two structural roots for two of the trees. He also testified that the typical growth pattern was for trees to have anywhere between four to five structural roots, depending on the site and species of tree. [Note 17] Tr. Vol. II, at 249-251. Based on the typical growth pattern, either Coppinger was correct that Duntemann's probe methodology was inconclusive (because he was unable to locate the majority of the structural roots); or, alternatively, if the probe test was reliable, only one of four (or five) structural roots of each tree was actually located within a TPZ, thereby indicating a substantially diminished risk of root damage. In either case, these probe results undermine and do not support for Duntemann's conclusion of predetermined tree loss.

Lastly, Duntemann's conclusion of a guaranteed loss was predicated on an assumption of uncontrolled excavation of the Project Site. Duntemann's testimony did not consider preventive measures that might be taken to mitigate damage to the Boundary Line Trees. This omission was salient since both arborists testified that TPZ's were established for that very purpose. Coppinger, on the other hand, recommended that the Private Defendants first establish the actual location of the roots and then implement protective measures. Tr. Vol. II, at 341-342. Those measures included excavating by hand and using an air-spade (a non-invasive pneumatic tool) to determine the actual location of the roots, preserving the roots by placing structural soil (mostly gravel) around the roots, and preemptively cutting some roots to avoid a machine tearing them. Tr. Vol. II, at 315-316, 330, 346-347. He also recommended carefully lifting up the existing walkway and putting in structural soil to support a new walkway, thereby preserving the roots and limiting equipment driving around in the TPZ. Tr. Vol. II, at 346.

For the reasons discussed above, I conclude that Plaintiffs failed to establish that the Boundary Line Trees would necessarily be destroyed by construction of the Project, although they may be damaged. Even though Private Defendants had not developed a tree protection plan during the permitting phase of the proposed Project, Roth testified at trial that he hoped to be able to keep all nine trees, both the Boundary Line Trees and the four trees on Plaintiff's parking lot. He committed to implementing the protective measures recommended by Coppinger. Tr. Vol III, at 357-358. I credit both Coppinger's recommendations, which were well thought out, detailed and consistent with the concept of a TPZ, as well as Roth's commitment. I find that Private Defendants do not intend to damage the Boundary Line Trees, but rather had not completed their design or the construction plans and have committed to implement protective measures during construction. With these protective measures in place, the potential loss of the Boundary Line Trees is uncertain and need not occur. [Note 18]

In the Superior Court case, the relief sought by Plaintiffs is declaratory and injunctive relief to prevent injury or death to any one or more of the nine trees located either on or near the common boundary between the Project Site and the Condominium parking lot. Consistent with the above discussion, Private Defendants have an unfettered right to cut roots and branches that extend onto the Project Site, whether those trees are located wholly on Plaintiffs' property or on the boundary line. There is no evidence to support a finding that the Project will violate any rights of Plaintiffs and, therefore, Plaintiffs are not entitled to declaratory or injunctive relief.

CONCLUSION

With respect to the Land Court case, the Decision of the Planning Board is upheld and Judgment will enter accordingly. With respect to the Superior Court case, Plaintiffs claims are dismissed. Judgment will enter accordingly.

[Note 2] The 85th percentile speed is used as an alternative by AASHTO for sight distance calculations, as reflecting the speed which around 85 percent of vehicles travel.

[Note 3] With respect to Trees 9938 and 9942, there is a discrepancy in their diameters between the parties SOF (eight inches) and Tr. Ex's. 13 and 18 (seven inches). I rely on the information as described in the parties Stipulated Exhibits.

[Note 4] Plaintiffs also contend that the Board improperly delegated to municipal officials the determination of issues of substance that were central to the Board's decision-making function. I do not reach this argument, finding that Plaintiffs lacked standing to pursue this appeal.

[Note 5] The waivers complained of by Plaintiffs pertain to density, building height, floor area ratio, setbacks, and open space. More specifically, the Board approved 40 units of housing on the Project Site, resulting in a floor area ratio ("FAR") of 3.62 (compared to the Bylaw maximum of 1.0), a building height of 67'-4" and six stories (compared with a Bylaw maximum of 40' and four stories), a front yard setback of 5 feet (compared with a Bylaw minimum of 15 feet), a side yard setback of 5.1 feet (compared with a Bylaw minimum of 24 feet), a rear yard setback of 5.2 feet (compared with a Bylaw minimum of 30 feet), no useable open space (compared with a Bylaw minimum of 20% of the lot be reserved for useable open space) and 5.5% landscaped open space (compared with a Bylaw minimum of 10% of the lot be for landscaped open space). The Board also allowed the Project to proceed with 25 parking spaces, compared with 80 as required by the Bylaw on the day the Project application was filed.

[Note 6] Mills testified that he was not sure whether the Zipcar facility was still in operation at the time of trial, but it was observed during the view on December 12, 2019.

[Note 7] In contrast, Mills observed existing conditions and testified that there would be no discernable increase in temporary delivery trucks parking in front of the proposed Project, in part because delivery trucks do not currently use the existing driveway and rear parking lot. He compared his observations of existing conditions with his analysis based on the ITE Manual and U.S. Census data, which indicated a high use of public transit for the neighborhood. Under existing conditions, Mills testified that approximately four deliveries per day were made to the Project Site, with delivery vehicles parking on either side of Centre Street. Several photographic exhibits of existing conditions confirmed this practice, showing a Fed Ex truck and USPS vehicle parked in front of the Project Site. Mills concluded that given the low volume nature of Centre Street, traffic would alternate in both directions to pass a parked vehicle with nominal delay if width for two-way traffic was temporarily unavailable, with no change in safety from existing conditions. Tr. Vol. I, at 123; Tr. Ex. 10. In addition, Mills calculated two moving trucks per month, for which a moving permit would be sought. Tr. Ex. 10.

[Note 8] In contrast, both parties discussed the Board's decision in another Chapter 40B project located at 134 Babcock Street, which specifically made a Finding that the Town Transportation Board to accept a Complete Streets design for southbound Babcock Street to include a five-foot bicycle lane and a nine-foot vehicular travel lane. I do not find the Babcock Street decision to be analogous or persuasive because the Board's decision for Babcock Street was issued on April 5, 2018, more than a year after the Decision issued on February 8, 2017, and at a point in time when the Transportation Board vote had already voted to adopt the new streetscape on March 12, 2018, and only after the revised streetscape and bicycle lane had been considered by all independent peer reviewers reviewing the Babcock Street project. Tr. Vol. I, at 148-149; Exhibit 24.

[Note 9] Chapter 87, § 11 is a criminal statute and provides that "[w]hoever willfully, maliciously or wantonly cuts, destroys or injures a tree, shrub or growth which is not his own, standing for any useful purpose, shall be punished by imprisonment for not more than six months or by a fine or not more than five hundred dollars."

[Note 10] Chapter 242, § 7 is a civil statute and provides that "[a] person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of damages assessed therefor; if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only."

[Note 11] Duntemann classified Tree 9936 was a Red Oak (whereas Coppinger classified it as a Pin Oak), Tree 9938 was agreed to be a Norway Maple, Tree 9940 was agreed to be a Tree of Heaven, Tree 9941 was agreed to be a Tree of Heaven, and Tree 9942 was agreed to be a Sycamore Maple. The Invasive Plant Atlas of New England ("IPANE") classifies Norway Maples and Sycamore Maples as invasive species, however, Duntemann testified he did not consider these as an invasive species for this urban setting. Tr. Vol. II, at 241-242. I do not find these different classifications to be material for the purposes of this Decision. The height and diameter of each of the Boundary Line Trees was agreed as follows: Trees 9936 (diameter of ten inches and height of fifteen feet), 9940 (diameter of nine inches and height of fourteen feet), 9941 (diameter of fifteen inches and height of forty-five feet) and 9942 (diameter of eight inches and height of thirty feet). Tr. Ex. 14.

[Note 12] A tree's root network serves a number of functions: providing support for the tree, storing starches and carbohydrates, absorbing water and nutrients from the soils and transporting water and nutrients into the tree. Tr. Vol. II, at 261-262. The crown (or canopy) of a tree creates the necessary sugars and carbohydrates for tree growth and development by photosynthesis. Tr. Vol. II, at 258.

[Note 13] Private Defendants argued that the Condominium had repaved the parking lot in 2014, causing damage to the trees. In support of this argument, Coppinger noted that the asphalt pavement in the Condominium's parking lot looked to be newly installed, without any noticeable cracks, whereas the existing concrete walkway on the Project Site had noticeable cracks, and theorized that the repaving work included excavation and compaction of soils. Rosenthal agreed that the Condominium had repaved the parking lot, but disputed the extent and depth of work. Vol. III, at 541-545. Coppinger and Roth unearthed a building permit for this work, which was not introduced into evidence, but was discussed to include removal of the existing asphalt, compaction the area, adding new material, and recompacting again. Tr. Vol. II, at 324, 349, 358-360. A proposal by U.S. Pavement was also discussed, but not introduced into evidence (calling for excavation up to 3 inches deep, disposal of excavated materials and repaving with 3 incuse of bituminous concrete). Tr. Vol. II, at 448-452. I conclude that there was insufficient evidence to establish that the Condominium's repaving project had damaged the boundary trees. Notably, Coppinger conceded when pressed that he did not really know whether compaction generally associated with repaving had occurred or whether the roots were damaged because he could not see the underground roots. Tr. Vol. II, at 353.

[Note 14] Duntemann's calculated TPZ's for the Boundary Line Trees as follows: Tree 9936 (fifteen feet), Tree 9938 (twelve feet), Tree 9940 (fourteen feet), Tree 9941 (twenty-three feet) and Tree 9942 (twelve feet). In contrast, Coppinger calculated TPZ's as follows: Tree 9936 (eight feet), Tree 9938 (5.25 feet), Tree 9940 (6.75 feet), Tree 9941 (11.25 feet) and Tree 9942 (5.6 feet). Tr. Vol. II, at 266-267; Tr. Ex. 14.

[Note 15] Careful review of the Tree Assessment Plan indicates that even using Coppinger's smaller TPZ's, three of the five Boundary Line Trees were located close enough to the proposed building envelope to be his TPZ and impacted by construction (Trees 9938 and 9942 were just outside the limit of Coppinger's TPZ's). Tr. Ex. 14. As to the four trees located wholly on Plaintiffs' parking lot, only a portion of Tree 9934 lies within Coppinger's TPZ.

[Note 16] As noted above, Chapter 40B projects are typically permitted based on preliminary plans. Roth testified that the foundation had not yet been designed and would use either subsurface footings or pilings, more likely footings which he guessed would be four feet deep. Tr.Vol. I, at 207-208. While Harding, the Project architect, was unsure about whether Roth had ever mentioned the boundary line trees during his site design work, he also testified that the foundation for the building had not yet been designed so that he could not at the time of trial provide clarity about how wide or deep an excavation would be needed. Tr. Vol. I, at 85-90.

[Note 17] Duntemann's testimony regarding his probe test did not distinguish between the Plaintiffs' trees and the Boundary Line Trees.

[Note 18] For the sake of a complete record, I note that both arborists concluded that the present value of the nine trees at issue, including both the Boundary Line Trees and the trees located on Plaintiff's property was $1,551.00, and I so find. Tr. Vol. II, at 356.

MISC 17-000097

OCTOBER 6, 2020

NORFOLK, ss.

DECISION