Opinion
18-P-598
04-17-2019
MICHAEL COHEN & others v. PLANNING BOARD OF NANTUCKET & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After trial, a Land Court judge entered judgment for the defendants, affirming the Nantucket planning board's (board) grant of a major commercial development special permit to the Nantucket Hunting Association (NHA), allowing the NHA to construct a shooting range in central Nantucket. On appeal, the plaintiffs contend the judge erred by: (1) crediting the defense expert witness against the weight of the evidence; (2) presuming the board made a specific finding on the legality of the range when it merely made a general finding; and (3) relying only on evidence of the impact of gunfire noise on the plaintiffs to conclude that the range would not create a nuisance. We affirm.
Discussion. 1. Expert witnesses. The plaintiffs contend that the judge erred in crediting the defense expert, Erich Thalheimer, over their experts, Brion Koning and Larry Pater. We disagree.
"Questions of credibility are . . . for the trial judge to resolve." G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996), quoting Commonwealth v. Willis, 415 Mass. 814, 821-822 (1993) (Liacos, C.J., dissenting). A judge must give "serious, reasoned consideration" to expert testimony, but need not credit it. L.L. v. Commonwealth, 470 Mass. 169, 181 (2014).
Here, the judge extensively analyzed the experts' testimony before discrediting Koning's and Pater's testimony. The judge found that Koning based his opinion on live fire tests, which, according to the experts (including Koning), were too flawed to provide accurate measurements. Pater, on the other hand, relied on computer models to predict noise from the range but completely disregarded the muffling effect from the berms around the pistol and rifle portions of the range. In contrast, Thalheimer conducted live fire tests that did not suffer from the flaws associated with Koning's tests, and factored in the effects the berms would have. We see no clear error in the judge's election to credit Thalheimer's testimony over that of the other two experts.
2. The board's finding of compliance. The plaintiffs next contend that the trial judge erred in deferring to the board's finding that the range complied with zoning bylaws, both because the board made no specific findings and because the judge cannot defer to such statements. We are not convinced.
Before issuing a special permit, the board is required to find the specific conditions under the zoning bylaws that warrant a special permit. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 n.5 (2003). Here, the board made several specific findings and imposed numerous "detailed conditions of approval [which] 'do double duty as findings.'" GPH Cohasset, LLC v. Trustees of Reservations, 85 Mass. App. Ct. 555, 558-559 (2014), quoting Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 621 (1986). The board's conditions also incorporated the conditions spelled out in the lease between the NHA and the town of Nantucket. In totality, these conditions limited considerably the shooting range's hours of operation, and set up an advisory board to monitor the range's impact on the community, mandate noise attenuation, and create a process for handling noise complaints. The setting of these conditions makes clear, contrary to the plaintiffs' assertions, that the board considered the potential for noise nuisance and expressly addressed that concern.
Further, upon review of the board's decision to issue the special permit, the judge was required, and did, undertake his own de novo fact finding. Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009). After acknowledging that the board "determined that the gunfire noise would not violate the Zoning Bylaw," the judge heard from the witnesses, reviewed the plans and conditions, and independently reached the same conclusion. We discern no undue deference.
3. Nuisance. Finally, the plaintiffs contend that the judge improperly focused exclusively on their neighborhood in deciding that the proposed range would not create a noise nuisance. They assert that the result would be different had the judge considered whether that proposed shooting range would create a noise nuisance for lands neighboring the proposed site. However, because the judge did consider the effect the proposed shooting range would have on the adjacent lands, found that the plaintiffs had not proved that the range would create a nuisance there or anywhere, and those findings are not clearly erroneous, we are not persuaded.
Nantucket zoning bylaw § 139(7)(B)(4) (2013) prohibits "[a]ny building or structure or any use of any building, structure or premises which is injurious, obnoxious, offensive, dangerous or a nuisance to the community or to the neighborhood through noise vibration, [or] concussion . . . ." A nuisance is "a substantial and unreasonable interference with the use and enjoyment of the property" of another. Rattigan v. Wile, 445 Mass. 850, 856 (2006), quoting Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994). "Whether a nuisance exists is usually a question of fact." Stevens v. Rockport Granite Co., 216 Mass. 486, 490 (1914). We will not disturb the judge's findings of fact "unless they are 'clearly erroneous' or there is 'no evidence to support them.'" Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 383, quoting DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985).
Here, the judge found that the range's noise would not create a nuisance in either the plaintiffs' neighborhood or land adjacent to the range. In finding no nuisance in the plaintiffs' neighborhood, the judge credited Thalheimer's testimony over that from Koning and Pater, which, as noted above, was not clear error.
We likewise discern no clear error in the judge's finding that the plaintiffs failed to prove that the range would create a noise nuisance on lands adjacent to the site proposed for the shooting range. The land to the west of the range contains an industrial park and airport while the land to the north, east, and south is conservation land. The only testimony as to the noise levels on these lands came during Thalheimer's cross-examination, in response to a hypothetical extrapolation from his findings and predictions pertaining to other points on Nantucket. There is no testimony from these land owners or otherwise any evidence that the owners of these lands would suffer "a substantial and unreasonable interference with the use and enjoyment of the property." Rattigan, 445 Mass. at 856, quoting Doe, 417 Mass. at 288.
Judgment affirmed.
By the Court (Maldonado, McDonough & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 17, 2019.