CYNTHIA WELCH-PHILIPPINO and ANTHONY PHILIPPINO vs. EDWARD RAMSDELL, SEAN LEONARD, ROBERT CIAMPETTI, DUNCAN LEBAY, CHARLES CIOVACCO, NAT COUGHLIN, JAMIE PENNINGTON, as they constitute the NEWBURYPORT ZONING BOARD OF APPEALS, THE CITY OF NEWBURYPORT, PORT ASSOCIATES LIMITED PARTNERSHIP, and WHITTIER HEALTH NETWORK, INC.

Plaintiffs Cynthia Welch-Philippino (“Cynthia”) and Anthony Philippino (together, “Plaintiffs”) filed their Verified Complaint on April 7, 2011, appealing a decision of the Newburyport Zoning Board of Appeals (the “ZBA”) pursuant to G. L. c. 40A, § 17. The ZBA issued a special permit (the “Special Permit”) to Defendant Port Associates Limited Partnership (the “Limited Partnership”) to expand a nursing home facility (the “Project”) located at 4-6 Hale Street, Newburyport (“Locus”) and operated by Defendant Whittier Health Network, Inc. (“Whittier,” and together with the Limited Partnership, “Port Associates”). [Note 1] A case management conference was held on May 18, 2011. A pre-trial conference was held on December 28, 2011. A site view was held on April 18, 2012. The first day of trial was also held on April 18, 2012 at the Newburyport District Court. During the first day of the trial, Plaintiffs filed a Motion for Directed Verdict, arguing that Port Associates cannot defend this action because they did not appeal the decision of the Building Commissioner which required a special permit for the Project. This court denied Plaintiffs’ motion on the basis that Plaintiffs had to prove standing to reach the merits of the case. The second day of trial was held at the Land Court in Boston. The parties filed their post-trial briefs on June 11, 2012 and the matter was taken under advisement.

Testimony at trial for Port Associates was given by Ronald Ranere (“Ranere”), Brian Sullivan (“Sullivan”), Stephen Sawyer (“Sawyer), Emily Wentworth (“Wentworth”), and rebuttal witness Jeffrey Gangi (“Gangi”). Testimony at trial for Plaintiffs was given by John Tremblay (“Tremblay”), Cynthia, and Carl King, Esq. (“King”). Fifteen exhibits were submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. The Limited Partnership is the owner of Locus. Locus is situated at the intersection of Hale and Low Streets in Newburyport, Massachusetts within the R-1 residential zoning district (“R-1”). A large portion of the land at the westerly/southerly side of Locus is wetlands. The land across Hale Street from Locus is zoned I-1 industrial. Locus contains 240,496 square feet, a total of approximately 5.5 acres. Locus has frontage of approximately 835 feet and the existing structure on Locus is approximately 28 feet in height, covers approximately 5.6% of Locus, has a front yard setback of forty-three feet, a side yard setback of 165 feet, and a rear yard setback of sixty-eight feet. [Note 2]

2. Port Associates operates a 100 bed nursing home at Locus, which was built in 1968. The nursing home is a three-story structure and contains 40,920 square feet. The nursing home use is a lawful pre-existing nonconforming use in R-1.

3. Plaintiffs own property located at 17 Coltin Drive in Newburyport (“Plaintiff Property”). Plaintiff Property directly abuts Locus to the west/north-west and Plaintiffs’ house is located north of Locus. Plaintiffs received title to Plaintiff Property from Barbara L. Welch, Cynthia Welch-Philippino’s mother (“Mrs. Welch”) by deed dated April 29, 2004. Plaintiffs lived at Locus for two years prior to obtaining the deed.

4. The current access to Locus is from Low Street, which abuts Locus on the north/north-east; however, the Project will eliminate access from Low Street and the primary access to Locus will be from Hale Street, which abuts Locus to the south. The proposed access to Locus via Hale Street (on the southerly side of Locus) is on the opposite side of Locus from Plaintiff’s house.

5. On December 17, 2002, Plaintiffs received a dimensional variance from the ZBA for setbacks in order to construct a larger home on Plaintiff Property. Plaintiffs demolished the existing home, which was in disrepair, and constructed a new house, the main portion of which was built upon the existing foundation of the original structure. The new home contains an in-law apartment for Mrs. Welch, which was allowed by a special permit. The variance expanded the footprint of the existing house and brought the new house closer to Locus. The in-law portion of the new house is closest to the lot line between Plaintiff Property and Locus.

6. On August 11, 2004, Port Associates received approval from the Department of Public Health to expand the nursing home. On December 6, 2011, the Department of Public Health modified its approval for the Project by reducing the number of beds to 123.

7. Port Associates applied to the Newburyport Building Commissioner for a building permit, seeking to expand the nursing home facility by constructing a new two-story facility (60,131 square feet) with 123 skilled nursing beds. Port Associates would afterwards demolish the old nursing home facility and add a parking lot in its place (the Project). The new building would have a front yard setback of approximately twenty-two feet. The Building Commissioner denied the building permit on January 14, 2011, indicating that a special permit was required for the Project pursuant to Section IX-B.2 of the Zoning Ordinance of the City of Newburyport (the “Ordinance”). The Project will move the footprint of the building and cause the new footprint to be increased from approximately 12,686 square feet to 28,780 square feet. The old structure abuts Plaintiff Property to the south; however, the new structure will abut Plaintiff Property on both its southerly and westerly side. A new, “grasspave” emergency access driveway, as shown on the Layout Plan, will also abut Plaintiff Property to the west.

8. Section VI of the Ordinance imposes dimensional requirements on different uses, including front, side, and rear yard setback requirements. The Ordinance requires a thirty foot front yard setback for one-family residential uses in the R-1 district. The Ordinance requires a twenty foot front yard setback for nursing home uses without regard to the particular district a nursing home sits in.

9. The Ordinance creates three separate districts for residential uses: R-1, Residential Two (“R-2”), and Residential Three (“R-3”). There is no provision in the Ordinance for a district specifically for nursing homes. One-family residential uses are permitted as of right in the R-1, R-2, and R-3 districts. Nursing home uses are not permitted as of right in any district. Rather, nursing home uses require either a special permit or a variance. Nursing home uses require a special permit in the R-2, R-3, Business Three (B-3), and General Acute Care Medical (M) districts. In all other districts, including R-1, nursing home uses are not allowed and would require a variance.

10. Defendants plan to build a loading structure (the “Loading Dock”) on the Hale Street side of the Project, on the opposite side of Locus from Plaintiff Property. Ranere, Port Associate’s expert architect who designed the Project, testified that the Loading Dock would sit approximately four or five feet from the property line in the front yard setback. The layout plan for the Project, entitled Plan of Land in Newburyport, Massachusetts, dated May 5, 2011 (the “Layout Plan”), shows that the Loading Dock will be approximately 3.75 feet from Hale Street. He also testified that the Loading Dock is “the same height as the floor elevation, so it’s subterranean walls with a 4-foot-high wall where the truck pulls up.” The Layout Plan indicates that the Loading Dock is attached to the new structure.

11. On January 14, 2011, Port Associates applied to the ZBA for the Special Permit for the Project. The application was executed and filed by Ranere on behalf of Port Associates’. Ranere attached a memo to the application in which he stated, inter alia, that the Project will meet the dimensional requirements of the Ordinance, reduce the impact on the city’s water, sewer, and municipal systems due to the addition of state-of-the-art energy management and plumbing fixtures, and will not be more detrimental than the current facility to traffic and pedestrian safety.

12. The ZBA held a public hearing on the Special Permit on February 8, 2011. Ranere appeared on behalf of Port Associates and submitted the proposal for the Project. Cynthia appeared and opposed the Special Permit. Two other residents opposing the Project were also heard.

13. The ZBA held a second public hearing on the Special Permit on March 8, 2011. Ranere appeared as did Cynthia, who once again was heard. The public hearing was closed and the Special Permit was approved by the ZBA (the “ZBA Decision”).

14. The ZBA Decision was filed with the Newburyport City Clerk on March 22, 2011. The ZBA made two findings (the “Findings”) relative to the Special Permit, as follows:

15. On April 7, 2011, Plaintiffs duly filed their appeal of the Special Permit pursuant to G.L. c. 40A, § 17.

16. On July 6, 2011, the Newburyport Planning Board (the “Planning Board”) unanimously granted major site plan approval (the “Site Plan Approval”) to the Project. [Note 4] [Note 5]

17. At trial, Plaintiffs called Tremblay as an expert landscape architect, King as an expert in the field of zoning and land use law, and Cynthia. Cynthia testified as to the harms she and her family have experienced as a result of the existing facility on Locus. Specifically, she testified that she was harmed by chronic noise, vibrations, bright lights, sights of patients changing and bathing, smells, parking, dust, and traffic. Cynthia testified that trash trucks, delivery trucks, traffic, and employees on Locus produce a great deal of noise. She testified that lights from the parking lot and ambient light from the building disturbs her family. Cynthia testified that the smell of cigarette smoke from employees of Port Associates also harmed her and her family, as did dust from Locus. She further testified that the Project will exacerbate harm to her and her family’s mental health, emotional health, physical health, and quality of air given the increase in density, staff, visitors, traffic, parking, and cars.

18. Tremblay testified primarily as to Exhibit 7, the Project’s landscape plan. The landscape plan depicts a proposed series of trees, bushes, and plants between Locus and Plaintiff Property intended to screen the view from parcel to parcel (the “Green Buffer”). Tremblay testified that based on this plan, the Green Buffer would not provide effective screening between Plaintiff Property and Locus. Tremblay stated that “its very hard to delineate exactly where these plants are going to end up . . . because of the small scale (of the landscape plan).” He also testified that he was uncertain which types of plants would be planted along the property line and that, based on this, he felt the Green Buffer would likely not be an effective screen. Tremblay did not testify as to whether or not the landscaping plan complied with the Ordinance, and Plaintiffs do not allege noncompliance. Tremblay admitted on cross-examination that the Green Buffer provided improved screening over what currently exists between Plaintiff Property and Locus.

19. King testified as an expert in the field of land use and zoning law. [Note 6] King testified that, based on his personal observations of Locus, the Project’s plans, and the neighborhood generally, the Project would increase the density of the neighborhood, thereby injuring Plaintiffs.

20. Port Associates called Ranere as an expert architect. Ranere testified that the Project would provide benefits to the neighborhood because it will pull the nursing home away from the residential area and towards the industrial zone, relocate the Loading Dock and loading area to the Hale Street side of Locus so that it is as far as possible from the neighborhood, provide an effective Green Buffer to shield the neighborhood, replace existing exterior light poles whose light shines towards the neighborhood with shorter light fixtures that are designed to direct light downward rather than horizontally, and implement a parapet barrier on the roof to both shield the HVAC equipment from view and direct sound upward rather than towards the neighborhood. Port Associates provided exhibits to support Ranere’s testimony.

21. Port Associates called Sawyer as an expert civil engineer. Sawyer corroborated Ranere’s testimony regarding the Project’s light fixtures and their consequent reduction of luminous glare. Sawyer admitted that the distance between the existing nursing home and the lot line closest to Plaintiff Property is sixty-seven or sixty-eight feet. He also testified that the closest lot line of the Project to Plaintiff Property will be fifty-one feet. Thus, at their closest point, the nursing home and Plaintiff Property will be closer as a result of the Project. [Note 7] Sawyer also testified, however, that the Project is actually further away from that point on the boundary line which is closest to Plaintiffs’ home itself. In other words, while the Project moves the nursing home closer to one spot of the boundary line, Sawyer stated that it moves it further–seventy-three feet from sixty-eight feet–from that portion of the boundary line closest to Plaintiffs’ house. Wentworth, a planning and zoning administrator in the city of Newburyport, also testified that the Project eliminated the Low Street entrance, a site of considerable noise and on-site traffic.

22. Port Associates also called Gangi, chief nursing home administrator, as a rebuttal witness. He testified, among other things, that smoking is no longer allowed on Locus and that employees will be required to park on the Hale Street side of Locus away from Plaintiff Property.

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As a threshold matter, Port Associates argues that Plaintiffs lack standing to challenge the issuance of the Special Permit. Plaintiffs contend that they are persons aggrieved by the Special Permit and therefore have standing to challenge it. As to the merits, Plaintiffs challenge the ZBA’s approval of the Special Permit on the grounds that the ZBA failed to make the proper findings as required by the Ordinance. Port Associates argues that the Special Permit was validly issued pursuant to G.L. c. 40A, § 6 and the Ordinance. I shall address each issue in turn.

I. Standing

G.L. c. 40A, § 17 provides for judicial review of decisions of zoning boards of appeal and special permit granting authorities to the extent the appellant is a “person aggrieved” by said decision. Abutting landowners are “parties in interest” to zoning matters pursuant to G.L. c. 40A, § 11. As “parties in interest,” abutters are presumed to be aggrieved by a decision of a zoning board for purposes of G.L. c. 40A, § 17. See Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1956); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 127 (1999). Therefore, abutters are entitled to a presumption of standing. Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 257 (2003).

A presumption of standing is rebuttable. Valcourt, 48 Mass. App. Ct. at 127; Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 212 (2003). A defendant may effectively rebut an abutter’s presumptive standing by presenting evidence to the contrary. Marinelli, 440 Mass. at 258; Denneny, 59 Mass. App. Ct. at 212. If a challenge to standing is supported by evidence, the abutter’s presumption of standing disappears. Valcourt, 48 Mass. App. Ct. at 127-28; Denneny, 59 Mass. App. Ct. at 212. The issue of standing will then “be determined on all the evidence with no benefit to the [abutter] from the presumption.” Marashlian v. Zoning Bd. of Newburyport, 421 Mass. 719 , 721 (1996), quoting Marotta, 336 Mass. at 204. Once an abutter’s presumptive standing is properly rebutted, the burden of proof is on the abutter with respect to the issue of standing. Barvenik v. Bd. of Alderman of Newton, 33 Mass. App. Ct. 129 , 131-32 (1992). To meet the burden of proof, the abutter must “put forth credible evidence [Note 8] to substantiate his allegations.” Marashlian, 421 Mass. at 721.

Additionally, standing requires that an abutter’s evidence entail more than “unsubstantiated claims or speculative personal opinions.” Denneny, 59 Mass. App. Ct. at 212. Injuries which properly confer standing must be “personal to the plaintiff, not merely reflective of the concerns of the community.” Id. “[A] general civic interest in the enforcement of zoning laws . . . is not enough to confer standing.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 495-96 (1989).

Plaintiffs are abutters to Locus. Therefore, they are entitled to a presumption of standing to challenge the Special Permit. Plaintiffs’ presumptive standing faded when Port Associates presented evidence at trial in rebuttal. Having done so, the burden of proof shifted to Plaintiffs to present credible evidence to substantiate their allegations of aggrievement. I must now determine whether Plaintiffs have standing to challenge the Special Permit “on all the evidence” with no benefit to Plaintiffs from the presumption. Marashlian, 421 Mass. at 721; Marotta, 336 Mass. at 204. I shall do so by addressing each alleged harm in turn.

a. Noise

Chief among Plaintiffs’ complaints is the noise that emanates from Locus. Plaintiffs relied upon Cynthia’s testimony heavily in this regard. She testified that she and her family have been and will continue to be aggrieved by exposure to chronic and loud noise from trash trucks, delivery trucks, linen trucks, and plow trucks. She testified that linen trucks have arrived as early as 5:00 a.m., trash trucks have arrived as early as 4:30 a.m., and plows have arrived as early as 2:30 a.m., waking and disturbing her and her family. Cynthia testified that shift changes create noise problems, as employees have loud conversations and play their car stereos after work. She also testified that the noise from visitors has caused harm. Because the Project increases the number of beds in the facility by approximately 20%, Cynthia claims her family will be harmed by increased noise caused by additional staff, visitors, and deliveries. A by-product of the noise, Cynthia stated, is the vibration she and her family feel as a result of trucks being left running. Finally, Cynthia expressed concerns about noise from the HVAC system.

Port Associates offered evidence with regards to the noise issue. Ranere testified at trial that Port Associates, in response to concerns from Newburyport authorities, will move the nursing home away from the residential zone and, consequently, away from Plaintiff Property. Ranere testified that the Project will implement a parapet barrier on the roof to both shield the HVAC equipment from view and direct sound upward rather than towards the neighborhood. Port Associates presented testimony from Wentworth that the Project eliminated the Low Street entrance, a site of considerable noise. Gangi testified that once the Project is completed, employees will be required to park on the Hale Street side of Locus. Further, Port Associates presented evidence to show that the Loading Dock will be located on the Hale Street side of Locus, moving deliveries to the furthest possible point from Plaintiff Property. Port Associates provided exhibits to support its testimony, although it did not address the vibration issue.

Sawyer admitted that the closest lot line between the Project and Plaintiff Property will reduce from sixty-seven feet to fifty-one feet. Thus, at their closest point, the new structure will be closer to Plaintiff Property, which increases the likelihood that Plaintiffs will be harmed in the future by noise from the building and corresponding use. I find that Cynthia was a credible witness with respect to harms caused by the current nursing home, and in consideration of the increase in the size of the facility and its use, the fact that Plaintiffs will be surrounded on two sides by the Project rather than one, and the fact that the driveways will still abut Plaintiff Property, I find that Plaintiffs have demonstrated credible evidence of harm from noise caused by the Project.

b. Light

Cynthia testified that her family suffers from the ambient light of the existing nursing home structure. She alleged that the light from the facility itself and the outside light posts have caused her to close the shutters of her home. Additionally, she alleged that there have been occasions where she can see into the rooms of the nursing home where patients are bathing and changing. This has also caused her to shutter her windows. Cynthia is rightfully concerned that the harm of exposure to light emanating from Locus and the existing nursing home structure will be exacerbated by the increased use of Locus and increased size of the new structure caused by the Project.

Tremblay testified that the Green Buffer would be ineffective to screen Plaintiff Property from Locus. However, Tremblay admitted on cross-examination that the Green Buffer would be more effective than what currently exists. Port Associates relied again on testimony from Ranere and Sawyer. Ranere testified that the Green Buffer would adequately screen Plaintiff Property from Locus and that the Project’s landscaping would help deal with the light problems. Ranere also testified that the Project replaces existing outdoor light poles with improved ones. Specifically, the Project’s light poles are significantly shorter and are designed to shine light downward rather than horizontally and towards Plaintiff Property. Port Associates provided exhibits to support this testimony.

Similar to noise, however, the increase in both the structural size and use of the nursing home will result in exacerbated light sensitivity issues on Plaintiff Property. Port Associates did not address all of Plaintiffs’ concerns relative to lighting. Indeed, Plaintiff Property is going to be surrounded on two sides by the new structure and all of its lighting fixtures, rather than just one side as is the case now. Based on all of the evidence, it would appear that even with the mitigation efforts of Port Associates, the Project will exacerbate the harm of lighting as it affects Plaintiff Property. As such, I find that Plaintiffs have established credible evidence of harm from light caused by the Project.

c. Odor

Plaintiffs alleged that they could smell cigarette smoke coming from Locus. When changing shifts or taking breaks, Port Associates’ employees would occasionally smoke. Cynthia testified that the scent was noticeable from Plaintiff Property, thereby harming Plaintiffs. Port Associates called Gangi, chief nursing home administrator, in rebuttal. He testified, among other things, that smoking is no longer allowed on Locus pursuant to a change in an internal policy of Whittier. Plaintiffs did not rebut this contention and therefore Plaintiffs’ concern relating to odor is moot. As a result, I find that Plaintiffs have not demonstrated credible evidence with respect to the harm from cigarette smells caused by the Project.

d. Parking and Traffic

Plaintiffs argue that, because the Project increases the number of beds in the facility by approximately 20%, they will be harmed due to an increased level of patients and staffing, a corresponding increase in the number of cars and traffic going in and out of Locus, and an increase in parking capacity on Locus. Port Associates’ witness Sullivan, a nursing home administrator, acknowledged that there would be an increase in patients and corresponding increase in staffing. Port Associates also acknowledged that there will be an increase in parking spaces on Locus.

Ordinarily, plaintiffs who raise the issue of parking in the context of standing argue that they are harmed by an inability to find street parking. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. at 493-95; Bavernik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. at 136 (overruled on other grounds). This is not an issue in this case, as Plaintiffs park in their own driveway. Also, with respect to traffic, the issue ordinarily raised is increased difficulty getting to and from home and consequent loss of use and enjoyment of property. See Harvard Square Defense Fund, Inc., 27 Mass. App. Ct. at 494-95; Stephens v. Zoning Bd. of Appeals of Groton, 57 Mass. App. Ct. 1104 (2003). This is also not an issue in this case as Plaintiffs’ concern with respect to traffic was the corresponding increase in noise. Noise and traffic are separate harms and noise has already been considered, supra. Moreover, the access to Locus is being moved from Low Street to Hale Street, which Plaintiffs would not use to access Plaintiff Property. Therefore, Plaintiffs’ traffic issues concerning Locus will likely be decreased as a result of the Project. As a result of the foregoing, I find that Plaintiffs have failed to present credible evidence with respect to the harm of parking and traffic caused by the Project.

e. Density

Plaintiffs rely heavily on the expert testimony of King with regards to the issue of density. King testified that in his opinion the Project increased the density of the neighborhood. However, Locus is a very large lot of land. Locus contains 240,496 square feet; the Project will result in a nursing home that is 60,131 square feet with a footprint of only 28,780 square feet. The Project will therefore take up a very small amount of the lot. The fact that the facility will be expanded does not mean that the neighborhood at large will increase in density. This is particularly so because Locus is situated on the edge of the R-I district. Therefore, I find that density is not an issue.

f. Dust

Cynthia briefly testified on redirect that she has been harmed by dust from Locus. She testified that, even after closing down Low Street, Plaintiff Property will still be subject to dust. Port Associates did not address the dust issue specifically. However, Cynthia’s mere statement that her family will be harmed by dust is entirely speculative and lacking in credibility. “[C]redible evidence has . . . a quantitative component . . . 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. Plaintiffs failed to meet that quantitative threshold and, accordingly, I find that Plaintiffs have failed to present credible evidence of harm of dust caused by the Project.

g. Plaintiffs Have Standing

Plaintiffs base their standing argument to a large extent on the harms they experienced from the facility as it currently exists. They argue that, based on these prior experiences and the proposed expansion of the nursing home, the harms will continue and be exacerbated in the future. Cynthia’s testimony regarding the injuries she will likely suffer was based almost entirely on her experience with the existing facility. Port Associates acknowledges that Plaintiffs have been aggrieved in the past, but deny Plaintiffs’ contention that the Project will exacerbate the harm. However, the trial record is clear that the Project will increase the size of the nursing home from 100 beds to 121 beds [Note 9] and the number of patients by over 20%. This will in turn increase the number of visitors and staff as well as the amount of supplies being delivered. The record is also clear that the number of parking spaces will be increased. The nursing home, which currently is located south of Plaintiff Property, will, as a result of the Project, be located both south and west of Plaintiff Property, i.e. it will abut and surround Plaintiff Property on two sides rather than one. In addition, the square footage of the nursing home will increase from 40,920 square feet to 60,131 square feet. Finally, Plaintiffs’ property line and the nursing home will be closer at their closest point as a result of the Project.

These factors will contribute to a more concentrated use of the nursing home facility. Port Associates offered persuasive testimony that many, but not all, of the current harms will be mitigated or eliminated by the Project. Port Associates did not indicate that the redirection of traffic and deliveries by the elimination of the Low Street entrance would, for instance, eliminate the harm of snow plow noise. The parking lot and the emergency access way are still right next to Plaintiff Property. This, coupled with the objective facts regarding the increase in the size of the building, number of beds, and the fact that Plaintiff Property will be surrounded on an extra side is sufficient to show Plaintiffs’ harm will be increased over the current harms which Port Associates recognizes, particularly with respect to noise and light, as discussed, supra. I find that Plaintiffs’ evidence was sufficient to demonstrate aggrievement and, therefore, I find that Plaintiffs have standing to bring this lawsuit.

II. Non-Conforming Use of Locus As A Nursing Home

The Ordinance provides that a nursing home use requires a special permit in all zoning districts. Both parties acknowledge that Port Associates operates a pre-existing nonconforming nursing home on Locus and any changes to such use are governed by G.L. c. 40A, § 6. Both parties also acknowledge that Section IX-B.2.B of the Ordinance governs the extension or alteration of nonconforming structures and uses. Plaintiffs argue that the ZBA improperly issued the Special Permit because it failed to make a finding relative to section IX-B.2.B of the Ordinance, which states: Preexisting nonconforming structures or uses may be extended or altered, upon the issuance of a special permit for nonconformities by the board of appeals, based on the following findings...

(1) That there will be no intensification or extension of an existing nonconformity or the addition of a new nonconformity; and

(2)That the proposed change will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

In this regard, Plaintiffs argue that the increase in the use of the nursing home from 100 to 121 beds coupled with the increase in the size of the structure from 40,920 square feet to 60,131 square feet constitutes an “intensification or extension” of the pre-existing nonconforming use. Port Associates argues that the Project does not constitute an intensification or extension of the pre-existing nonconforming use. Before analyzing the Ordinance, this court must first analyze the validity of the Project pursuant to G.L. c. 40A, § 6.

A. G.L. c. 40A, § 6

As a prior nonconforming use, the nursing home use is governed by G.L. c. 40A, § 6. G.L. c. 40A, § 6 states: Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence of lawfully begun . . . but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of [a] public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent[.]...Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

If a proposed change to a non-conforming use does “not cross the substantiality thresholds of G.L. c. 40A, § 6, par., 1, first sentence, a special permit or ‘finding’ under the second sentence [is] not required.” Barron Chevrolet, Inc.v. Town of Danvers, 419 Mass. 404 , 410 (1995) (hereinafter Barron). The test to determine whether an alteration to a pre-existing nonconforming use (the “Powers Test”) consists of a three pronged inquiry: “(1) Whether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect. (2) Whether there is a difference in the quality or character, as well as the degree, of use. (3) Whether the current use is different in kind in its effect on the neighborhood.” Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966); see also Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). [Note 10] If a modified use complies with the Powers Test, then that use is a protected, lawful use under G.L. c. 40A, § 6, and such use may continue as a matter of right. Powers, supra, at 661 (“the present [modified] use is lawful as a continuation of a nonconforming use”).

The first prong of the Powers Test inquires whether the use “reflects the nature and use prevailing when the zoning by-law took effect.” Powers, 363 Mass. at 663. As Port Associates correctly points out, the nature and purpose of the use upon Locus will not change as a result of the Project. Port Associates will continue to use Locus as a nursing home, which is the current prevailing use of Locus. The fact that there is an increase in the number of patients does not constitute a different use. See Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 (1980) (holding nature of use not changed by increase in business).

Under the second prong of the Powers Test, the court must determine whether there is a difference in the quality or character as well as the degree of the use. Under this prong, the Supreme Judicial Court (“SJC”) stated that “the increased use must be attributable to growth of the original nonconforming use...” Cape Resorts Hotel, Inc. v. Alcohol Licensing Bd. of Falmouth, 385 Mass. 205 , 214 (1982). In this regard, and similar to the first prong of the Powers Test, a use is not different in quality or character merely because the use is bigger. See Building Comm’r of Medford v. McGrath, 312 Mass. 461 , 462 (1942). Indeed, in Powers, the SJC held that a substantial increase in the volume of retail sales as well as an increase in the number of products manufactured upon the locus did not constitute a change in quality or character. See Powers, supra, at 659-660. Based on the line of cases that have came down before and after Powers, it is clear that even a 20% increase in the number of patients may not alter the quality, character, or degree of the use of Locus as a nursing home. Such an increase does not automatically mean that the “degree” of use has been changed. Cf. Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass. App. Ct. 80 (2002) (thirty-fold increase in sand and gravel operations constitutes change in degree of use).

Moreover, as stated, supra, the increased use of Locus is attributable to the growth of the nursing home business. Port Associates does not intend to add an ancillary business in addition to the nursing home nor does it intend to operate a business that is different from a nursing home. Cf. Jasper v. Michael A. Dolan, Inc., 355 Mass. 17 , 24 (1968) (change from a food store that sold beer and wine to an all-alcoholic package store constitute a change in character and quality); Hinves v. Comm’r of Pub. Works of Fall River, 342 Mass. 54 , 57 (1961) (change from grocery store to catering service constitutes a change in character and quality). The case at bar can therefore be distinguished from Jasper and Hinves, as Port Associates shall continue to operate only a nursing home on Locus, albeit on a larger scale. As such, I find that the changes in use on Locus are not different in quality, character or degree from the existing use.

Finally, the third test considers whether a proposed project “is different in kind in its effect on the neighborhood.” Powers, 363 Mass. at 663. The Project will continue to operate as a nursing home. Furthermore, Port Associates presented persuasive testimony and exhibits to bolster its claim that the Project will have a mitigating impact on the neighborhood as compared to the existing layout of the nursing home on Locus. For instance, Ranere testified that the Project pulls the nursing home away from the residential neighborhood and towards the industrial zone. Also, there was testimony that smoking is no longer allowed on Locus, that the Green Buffer will improve the screening of light, that the new lighting fixtures are built to concentrate on the parking lot and not give off glare into the neighborhood, and that the loading zone was relocated to the Hale Street side of Locus so as to address noise concerns of Plaintiffs. Thus, Port Associates has satisfied the third prong of the Powers Test.

Based on the foregoing, I find that the Project does not constitute a “change or substantial extension” within the Powers Test and is a protected, lawful use pursuant to G.L. c. 40A, § 6.

B. The Ordinance

The next issue is whether the Ordinance applies to the Project and the modified use of Locus as a nursing home (not a change or substantial extension, however). “A town, in its zoning by-law, may regulate or forbid changes in nonconforming uses.” Barron, supra, at 412, citing Blasco v. Bd. of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 39 (1991). In Barron, the SJC determined that a replacement of panels on the nonconforming use of signs on a property, did not constitute a “change or substantial extension” of the non-conforming use within the purview of the Powers Test and the first sentence of the first paragraph of G.L. c. 40A, § 6. The SJC then stated:

The right of municipalities to regulate or prohibit changes to prior nonconforming uses arises under the second sentence of G. L. c. 40A, § 6, par. 1. Blasco, supra at 3839...In order to read the provision consistently with the first sentence of the statute, we think that the right to regulate changes is limited to the changes, extensions, reconstructions and alterations to prior nonconforming uses and structures to which, under the first sentence of G. L. c. 40A, § 6, zoning ordinances and bylaws apply. Barron, supra, at 412.

As a result, the SJC held, “[b]ecause the changes of the sign panels do not constitute a change, extension, reconstruction or alteration of a prior nonconforming use or structure...under the first sentence of G.L. c. 40A, § 6...the town could not regulate or prohibit them.” Id. In the case at bar, the increase in the size of the nursing home does not result in a “change or substantial extension” of such use.

In two subsequent cases interpreting Barron, the Land Court has held, “If the proposed use [passes the three prong Powers Test], the use is protected under [G.L. c. 40A,] § 6 and the project may proceed, regardless of any town bylaw to the contrary.” Quincy v. Miller, 16 LCR 338 , 345 (2008); Skydell v. Tobin, 18 LCR 174 , 180 (2010), aff’d by Skydell v. Tobin, 81 Mass. App. Ct. 1113 (2012). This court is bound by the holding in Barron and it agrees with the Land Court decisions cited herein. If a modified pre-existing nonconforming use passes the Powers Test, then such use is protected under to G.L. c. 40A, § 6. A local bylaw or ordinance cannot take away specific rights in land that are provided by statute. See Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 605 (2011) (“it is axiomatic that [a] by-law cannot conflict with the statute”).

As stated, supra, the Project does not cause a change or substantial extension of a nonconforming use and is therefore a lawful continuation of a non-conforming use. See Powers, supra, at 663. Therefore, under the reasoning in Barron, the Ordinance cannot further regulate or prohibit the Project. In this regard, Plaintiffs’ argument that the ZBA failed to make a finding as to the “intensification or extension” of a non-conforming use pursuant to Section IX-B.2. of the Ordinance is moot.

Notwithstanding the foregoing and because both parties briefed this issue extensively, this court shall discuss whether the Project would nonetheless be entitled to the Special Permit pursuant to Section IX-B.2 of the Ordinance.

i. Substantially More Detrimental to the Neighborhood:

Section IX-B.2.B(2) of the Ordinance requires a finding that “the [Project] will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.” The ZBA found as such, and there is ample evidence in the record to support this finding. For instance, Ranere testified at length about how the Project will reduce the impact of sights and sounds by pulling the nursing home away from the residential zone and towards the industrial zone. Ranere testified that the service areas and common space of the building will be in the front of the facility, facing towards the industrial zone and away from Plaintiff Property. Ranere testified at length about the Project’s new light fixtures and how they will improve ambient glare from Locus into the residential area, thereby reducing the impact of lights from Locus. Ranere testified that the Project will reduce the impact of sights and sound from HVAC equipment by incorporating a parapet barrier on the roof to direct sound upward and away from the residential area and that said barrier will also shield the equipment from view. Finally, Ranere testified that the Project will reduce the impact of sight and sound by the planting of the Green Barrier. Plaintiffs’ expert admitted on cross-examination that the Green Buffer was an improvement over what currently exists. Port Associates submitted exhibits to bolster and verify Ranere’s testimony.

Port Associates also called Gangi, who testified that smoking is no longer permitted anywhere on Locus. He also testified that employees are required to park on the Hale Street side of Locus, moving the noise and traffic problems away from Plaintiff Property. Further, Wentworth testified that the Low Street entrance will be eliminated, further mitigating the impact of noise and traffic. Port Associates submitted exhibits in support of this testimony. Cynthia simply denied that these mitigating measures would be less detrimental to the neighborhood based on her prior experiences. I find the testimony and accompanying exhibits of Port Associates to be more persuasive and credible than Cynthia’s testimony. Moreover, the ZBA has discretionary power in making special permit findings and such discretion will not be disturbed unless based on legally untenable grounds. Zaltham v. Bd. of Appeals of Stoneham, 357 Mass. 482 , 484-85 (1970); Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277 (1969). It is clear that the ZBA was not unreasonable in finding that the Project will not be substantially more detrimental to the neighborhood than the current facility.

ii. Intensification or Extension of Use:

Plaintiffs argue that the ZBA Decision cannot stand because the ZBA made no finding that “there will be no intensification or extension of an existing nonconformity or the addition of a new nonconformity,” as stated in section IX-B.2.B(1) of the Ordinance. Even if the ZBA made no such finding, this court is convinced that Port Associates is entitled to such a finding. “The reviewing court need not remand for particularized reasons ‘if a rational basis for the denial exists which is supported by the record.’” Skydell v. Tobin, 81 Mass. App. Ct. 1113 (2012), citing Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001). “So long as ‘any reason on which the board can fairly be said to have relied has a basis in the trial judge’s findings and is within the standards of the zoning bylaw and The Zoning Enabling Act, the board’s action must be sustained regardless of other reasons which the board may have advanced.” Id, citing S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976).

In this case, the record substantially supports a rational basis for approving the Special Permit. The language “change or substantial extension” in G.L. c. 40A, § 6 is substantially similar to the language “extension or intensification” language in the Ordinance. This court believes that there is no material difference between the Powers Test and any analysis required under this section of the Ordinance. Pursuant to the foregoing Power Test analysis, it is clear that Port Associates would be entitled to a finding that the Project will not cause an intensification or extension of a non-conforming use. [Note 11], [Note 12]

III. Structural Issues:

A. Pre-Existing Nonconforming Structure

Plaintiffs allege that the existing structure is a pre-existing nonconforming structure and that the Project results in additional nonconformities. As a result, according to Plaintiffs, Port Associates needs a variance rather than a special permit. Port Associates argues that the old structure complies with the dimensional and density requirements in the Ordinance and is therefore not a pre-existing nonconforming structure. A pre-existing nonconforming structure is defined in the Ordinance as, “a building, lawfully existing at the time of adoption of this ordinance or any subsequent amendment thereto, which does not conform to one (1) or more [of] the applicable dimensional and density regulations for the district in which the building is located.” The Ordinance therefore makes no reference to a building or structure being nonconforming merely because the use therein is nonconforming. Instead, the definition in the Ordinance focuses exclusively on dimensional and density compliance.

Plaintiffs provide no evidence to support their claim that the existing structure does not comply with the dimensional and density requirements in the Ordinance. The Layout Plan, however, indicates that the old structure is in full compliance with all dimensional requirements for both a nursing home and for even the most rigorous dimensional requirements pertaining to a single family residence within R-1. See Fact 1 and FN 2. As such, I find that the old structure on Locus is not a nonconforming structure. Therefore, G.L. c. 40A, § 6 does not apply to the issue of the reconstruction of the old structure on Locus. As such, Port Associates will be entitled to a building permit (as this court has determined that the Special Permit was not necessary) if the new structure complies with the dimensional and density requirements set forth in the Ordinance. [Note 13]

B. Front Yard Setback

The parties are in disagreement over the appropriate front yard setback requirements for the Project. The new structure is setback twenty-two feet from Hale Road, its primary access road. Plaintiffs argue that because the Project lies in an R-1 zone, and because the setback requirements of a district rather than a use apply, the Project must utilize a thirty foot front yard setback, as is required in an R-1 zone. Port Associates argues that because the Project is a nursing home, the setback requirements of a nursing home use apply, and the Project only requires a twenty foot front yard setback.

Plaintiffs set forth no authority to support their claim that the appropriate setback to apply is that of the zoning district rather than that of the use. It is clear from the structure of the Ordinance, however, that the City of Newburyport did not intend to adopt Plaintiffs’ position. The Ordinance does not establish a particular zoning district for nursing home uses, nor does it lump nursing home uses into any particular district. This is also the case with many other uses, such as public works, hospital, veterinary, hospital, private education, and agricultural uses. None of these uses belong in, or are grouped with, any particular zoning district, yet each has its own front yard setback requirement. If each nursing home built in Newburyport had to comply with the front yard setback of the zone in which it was located, there would be no rationale for the Ordinance to require a twenty foot front yard setback for the specific use. Therefore, I find that the applicable front yard setback is twenty feet.

C. The Loading Dock

Despite the finding in the ZBA Decision that “there will be no addition of a new non-conformity,” Plaintiffs argue that the Loading Dock, which is either an accessory structure or is attached to the main nursing home building, is sited within the twenty foot front yard setback. Ranere admitted on cross-examination that the Loading Dock intrudes into the front setback area, and he testified that the Loading Dock is “the same height as the floor elevation, so it’s subterranean walls with a 4-foot-high wall where the truck pulls up.” [Note 14]

The Planning Board granted the Site Plan Approval to the Project on July 6, 2011. As part of its decision, the Planning Board granted two waivers pursuant to Section XV-H of the Ordinance. [Note 15] The Planning Board waived the prohibition against loading within the front yard setback: “the Board waives this standard to permit . . . loading within the front setback from Hale Street and this minimizes the impacts of both to residential abutters to the north of the site” (emphasis supplied). It appears the Planning Board waived the parking or loading in the front yard setback requirement to accommodate Plaintiffs and minimize the impact of the Project on Plaintiff Property.

It is within the Planning Board’s discretion, pursuant to Section XV-H(10) of the Ordinance, to waive front yard setbacks for purposes of safety and site configuration. This discretion extends to the activities of parking and loading but does not extend to structures that facilitate such activities, such as the Loading Dock. Section XV-5(10) clearly states that, unless the Planning Board in its discretion determines strict compliance is impractical, “no parking or loading shall be permitted within the required front yard setback.” The language of the Planning Board’s waiver confirms that it understood the limits of its power, as it stated “the Board waives this standard to permit . . . loading within the front setback.” The Planning Board did not waive the front yard setback requirement in the Ordinance for a [loading] structure, nor does it have the authority to do so. Accordingly, I find that the proposed Loading Dock intrudes into the front yard setback and Port Associates must either obtain a variance for the proposed layout or move the Loading Dock so that it does not create any dimensional nonconformity.

Based on the foregoing, the parties shall attend a status conference on June 21, 2013, at 10:00 A.M. to discuss how they intend to proceed in this matter. Judgment shall enter after all issues have been resolved.