Opinion
No. 12–P–337.
2012-11-26
Charles BROOKS & others v. BOARD OF APPEALS OF CHELMSFORD & another.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the plaintiffs from a Land Court decision upholding the board of appeals of Chelmsford's (board) grant of a comprehensive permit for affordable housing in the town of Chelmsford (town) pursuant G.L. c. 40B, § 21. We affirm.
Background. On October 3, 2008, pursuant to G.L. c. 40B, § 21, the board issued a comprehensive permit to Chelmsford Hillside Gardens, LLC (Hillside Gardens), for an affordable housing development. On October 20, 2008, the board decision was appealed to the Land Court by the plaintiff-abutters: Charles Brooks, owner of Brooks Precision Machining (Brooks property); and Guy Faretra and Craig D. Faretra, as trustees of C & G Realty Trust, which is the operating site of Chelmsford Crane Service, Inc. (Chelmsford Crane). A trial was held in October of 2009. In July of 2010, the judge dismissed the case for lack of standing. In a decision dated September 15, 2011, this court reversed, concluding that the plaintiffs had demonstrated sufficient facts to confer standing, and remanded the case back to the Land Court for a decision on the merits. See Brooks v. Chelmsford Hillside Gardens, LLC, 80 Mass.App.Ct. 1106 (2011). At a status conference held shortly thereafter, the parties requested that the judge decide the merits based on facts submitted at the 2009 trial and on posttrial briefs filed in 2010. At the 2009 trial, the plaintiffs argued that the board's decision granting the comprehensive permit was unreasonable, arbitrary, or capricious because: (1) the development's location abutting Chelmsford Crane posed an unacceptable health and safety risk; (2) the industrial nature of Chelmsford Crane and the Brooks property was incompatible with residential development; and (3) stormwater runoff from the development was likely to constitute trespass on the Brooks property.
The plaintiffs presented an expert engineer who testified that were a crane from Chelmsford Crane to fall, a majority of the proposed development units would be in the zone of risk of that fall. He also testified that damage from a crane to residential property is more severe than damage to commercial property. The expert engineer for Hillside Gardens did not express an opinion as to the risk of cranes falling, nor did the board conduct a safety analysis of that risk. The plaintiffs' expert further testified that Chelmsford Crane and the Brooks property, which operate early in the morning and at times for twenty-four hours a day, create noise, light, and traffic issues that would degrade the residential quality of the development. The plaintiffs argued that these issues would subject them to future lawsuits, which would dissuade potential purchasers from buying their property.
Additionally, expert reports and testimony for Hillside Gardens established that other than minor runoff from ten-year and one-hundred-year storm events, stormwater drainage would be contained in a stormwater management system and any runoff that enters the Brooks property would be similar to existing drainage conditions.
Chelmsford 110 Holdings, LLC, an entity related to Hillside Gardens, has sued Chelmsford Crane for trespass and nuisance with regard to the development site, and Guy Faretra testified that the insurance carrier for Chelmsford Crane indicated that its premiums would increase if the development is constructed.
In a detailed decision, the Land Court judge found that the plaintiffs' expert testimony was speculative because it did not disclose the risk of stored cranes as opposed to operational cranes. In light of the fact that Hillside Gardens satisfied concerns of the town's police, fire, and public safety departments, as well as the town water district, the judge found that the lack of crane risk analysis by Hillside Gardens and the board was not dispositive, nor were the abutting industrial and residential uses incompatible. Furthermore, noise and light concerns were mitigated by Hillside Gardens's acquiescence to the board's conditions, such as insulation, high fences, and landscaping changes. The judge also found that the board acted reasonably in relying upon engineering reports that concluded that any stormwater runoff from the development would simulate existing drainage conditions and therefore not constitute trespass.
Discussion. On appeal, the plaintiffs argue that the judge did not make independent findings of fact as required by de novo review because he deferred to fire and public safety department letters, which were the basis for the board's findings and which stated that Chelmsford Crane presented no health or safety risks to the development. The plaintiffs misinterpret the standard of review of the Land Court. De novo review of a zoning board's decision is a two-part inquiry that requires the court first to determine whether the decision was based on legally tenable grounds, and second, to determine whether it was unreasonable, arbitrary, or capricious. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 73–74 (2003).
The first inquiry required the judge to determine whether the board's decision was based on a consideration permitted by applicable statutes or by-laws. Ibid.General Laws c. 40B, § 23, inserted by St.1969, c. 774, § 1, provides that a zoning board may grant a comprehensive permit when “consistent with local needs.” The record clearly shows that the judge determined that the board was making its determination on the fact that the town had not met its statutory requirements for affordable housing, a permissible consideration in accordance with 760 Code Mass. Regs. § 56.03(1)(a) (2008). See Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 367 (1973).
The second inquiry is “highly deferential” to the board. Britton, 59 Mass.App.Ct. at 74. Although the judge makes his own findings of fact, the “decision of the board is competent evidence to enable the judge to ascertain what conclusion the board reached in order that he may determine whether upon the facts found by him the decision of the board should stand or should be annulled or should be modified.” Parrish v. Board of Appeal of Sharon, 351 Mass. 561, 567 (1967). Here, the judge observed that the board made its decision based on the approvals of the police department, the public safety department, and the fire department, and that the board imposed conditions to mitigate noise and light concerns. The judge also observed that while concerns from commercial abutters still existed, the board determined that those concerns were outweighed by the town's need for affordable housing. See Board of Appeals of Hanover, supra. Furthermore, the judge found that the plaintiffs' expert testimony was inconclusive as to the risk of cranes falling and that future complaints from residents about the commercial abutters was speculative. Based on what was presented to the board and what was presented at trial, the judge determined that the board acted reasonably in determining that the plaintiffs' concerns were outweighed by the need for affordable housing. We perceive no error.
The plaintiffs also argue that the judge erred in concluding that the board did not act in an arbitrary, capricious, or unreasonable manner when it determined the development will not cause a trespass of stormwater onto the Brooks property.
Contrary to the plaintiffs' contention, the judge specifically found that the discharge pipe does not enter the Brooks property. Furthermore, the plaintiffs' expert conducted no independent analysis of stormwater runoff and the judge credited expert testimony and engineering reports for Hillside Gardens which concluded that only minor overflow in large storm events would drain into the swale. See Massachusetts Elec. Co. v. Pacific Natl. Inv. Corp., 9 Mass.
The plaintiffs have not brought an action for trespass against Hillside Gardens.
App.Ct. 752, 753 (1980). There was no error by the judge.
Judgment affirmed.