Opinion
21-P-975
11-15-2022
COTTON TREE SERVICE, INC., & another [1] v. PLANNING BOARD OF WESTHAMPTON & others [2] (and a companion case [3]) .
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
These consolidated cases have a long and complicated history dating back to an application by Cotton Tree Service, Inc. (Cotton Tree) for a special permit to operate a sawmill in the town of Westhampton (town). In 2015, the town's planning board (board) denied the application and the parties have been involved in litigation ever since. Cotton Tree appealed the denial and the board settled that case, entering into an agreement for judgment that would grant the special permit under certain conditions.
Cotton Tree returned to the Superior Court seeking to enforce the agreement for judgment. The court entered a final judgment according to the agreement and issued the special permit. Timothy Fondakowski, a party in interest, intervened, opposing the special permit and seeking to appeal the judgment. Fondakowski also filed a separate action against the board, Cotton Tree, Dodge Maple Grove Farm, LLC, and the Hampshire Superior Court.
Fondakowski was originally denied the opportunity to intervene, a decision which this court reversed in Cotton Tree Servs., Inc. v. Planning Bd. of Westhampton, 95 Mass.App.Ct. 1108 (2019).
After a trial of the consolidated matters, the judge concluded that Fondakowski failed to demonstrate that he was "aggrieved" pursuant to G. L. c. 40A, § 17, and thus lacked standing to challenge the special permit. The judge also concluded that there was no constructive approval of the special permit by the board. Both parties now appeal.
Discussion.
1. Standing.
General Laws c. 40A, § 17, allows "[a]ny person aggrieved by a decision of . . . any special permit granting authority" to appeal to the Superior Court. "[A] 'person aggrieved' as that term is used in [G. L. c. 40A] must assert 'a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.'" Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27 (2006), quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493 (1989). "[T]he right or interest asserted must be one that the statute under which a plaintiff claims aggrievement intends to protect." Standerwick, supra at 27-28.
"Abutters entitled to notice of zoning board hearings enjoy a rebuttable presumption they are 'persons aggrieved.'" Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). "However, an adverse party can challenge an abutter's presumption of standing by offering evidence 'warranting a finding contrary to the presumed fact.'" 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012), quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003). "The plaintiff always bears the burden of proving aggrievement necessary to confer standing; an abutter's presumption of standing simply places on the adverse party the initial burden of going forward with evidence." 81 Spooner Rd., LLC, supra at 701.
"If a defendant offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Rd., LLC, 461 Mass. at 701. This requires that the plaintiff "establish -- by direct facts and not by speculative personal opinion -- that his injury is special and different from the concerns of the rest of the community." Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 132 (1992). A judge's finding on aggrievement, and therefore standing, "will not be overturned unless shown to be clearly erroneous." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011).
Fondakowski argues that the judge's conclusion that he had failed to demonstrate that he was a person aggrieved and, as a result, that he lacked standing to challenge the special permit constituted reversible error.
Fondakowski advances several other arguments relating to the special permit. However, because we agree with the judge's conclusion that Fondakowski lacked standing, we do not address those arguments.
The judge found that, although Fondakowski was an abutter entitled to presumptive standing, Cotton Tree effectively rebutted that presumption. Cotton Tree presented credible evidence from David Blakesley, the highway superintendent, and
John Gill, an industrial hygienist, regarding the limited effect on sound and traffic that the sawmill would have on the surrounding property.
The burden then shifted to Fondakowski to "prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Rd., LLC, 461 Mass. at 701. The judge found that Fondakowski did not meet this burden, as he failed to "articulate[] direct facts establishing that he would suffer a particularized injury." The judge noted that Fondakowski did not testify during the trial, and that the only abutter to testify as a witness, Michael Burke, had only "speculative concerns" about the "disruption to the quality of his life due to sounds and traffic."
The judge placed appropriate weight on the testimony presented by Cotton Tree, ultimately finding that it rebutted any of the concerns raised by Fondakowski. Fondakowski then failed to present any evidence other than speculative concerns. Thus, the judge's finding that Fondakowski lacked standing is not clearly erroneous.
2. Constructive approval.
Cotton Tree cross-appeals, arguing that the judge erred in concluding that there was no constructive approval by the board pursuant to G. L. c. 40A, § 9. We disagree. Pursuant to G. L. c. 40A, § 9, a special permit granting authority must "take final action" within ninety days following the last date of a public hearing. See Kenrick v. Board of Appeals of Wakefield, 27 Mass.App.Ct. 774, 775-776 (1989) (concluding that ninety days did not commence until after last date of hearing). The last date of public hearing occurs "when the right of interested parties to present information and argue is cut off." Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 115 (1982).
Although the judge enforced the agreement for judgment and ordered Cotton Tree's special permit to "remain in effect," a constructive grant of the special permit would not contain the same conditions that Cotton Tree had agreed to in the agreement for judgment and is therefore substantively different.
In Kenrick, we warned that "[t]he date [of constructive grant] may be even earlier if a board of appeals has not conducted the public hearing expeditiously, scheduling adjourned sessions at reasonable intervals in the circumstances." Kenrick, 27 Mass.App.Ct. at 777, quoting Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 783 (1987). Cotton Tree believes this warning applies to the circumstances of this case. We are not persuaded.
The board held at least fourteen meetings regarding Cotton Tree's special permit application between the dates of February 4, 2014, and March 10, 2015. At a meeting on January 20, 2015, Cotton Tree proposed additional conditions to the special permit for the board to consider in an attempt to gain the support of the board and the public. The board then held its final meeting on March 10, where it discussed the conditions proposed by Cotton Tree. On April 24, 2015, Cotton Tree filed a constructive approval notice, arguing that the public hearing had actually concluded on January 20, 2015, and that the board had failed to take action within ninety days of that date, i.e., by April 20, 2015. The board issued its decision denying the special permit on May 28, 2015, seventy-nine days after the March 10 meeting. The judge expressed his displeasure with the generally dilatory actions of the board, noting: "Whether the Board was seeking to exhaust the plaintiffs or displaying remarkable incompetence, the process was intentionally flawed and unfair."
However, the judge ultimately concluded that although "many of the hearings for this permit were superfluous and [were] simply used to either find a reason to deny the permit or delay the process," Cotton Tree's proposal of additional conditions to consider at the January 20 meeting made it reasonable for the board to continue the hearing to March to allow consideration of the proposal and to close the hearing at that time.
Cotton Tree argues that the judge's finding that it was not entitled to a constructive permit was clearly erroneous, and that a contrary finding was compelled. We disagree.
The judge's findings were based on meeting minutes and the testimony at trial and were not clearly erroneous. See Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011). At the January 20, 2015 meeting, Cotton Tree submitted a four-page letter to the board, with conditions and a summary of other issues attached. The judge reasonably found that, in light of the length and significance of these proposed conditions, "the Board was entitled to additional time to consider the offer."
Given these findings, this case does not provide the appropriate circumstances for the application of our warning in Kenrick. Cotton Tree's constructive approval notice was filed after the board's final continuance, one which we have already concluded was reasonable under the circumstances. Although the process was lengthy and flawed, the judge did not err in concluding that the continuance at issue was reasonable and appropriate, the board's decision was timely filed, and thus, no constructive approval occurred.
Judgments affirmed.
The panelists are listed in order of seniority.