Opinion
16-P-852
04-24-2017
Carol D'ACCI & others v. BOARD OF APPEALS OF ROCHESTER & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Carol and Michael D'Acci (D'Accis) and Paul Murphy as trustee of the Willard Realty Trust (WRT), appeal from the Land Court's judgment upholding the Rochester planning board's (planning board) approval of Edgewood Development Company, LLC's site plan for a bituminous concrete facility (Edgewood facility). All three plaintiffs own residential properties abutting the Edgewood facility; the D'Accis have resided there since 1971. The planning board approved the site plan for the Edgewood facility in May, 2011. The plaintiffs appealed that decision to the Rochester board of appeals, but were unsuccessful.
The plaintiffs next appealed to the Land Court. The parties cross-moved for summary judgment on the issue of the noise impact of the Edgewood facility. The Land Court judge denied the plaintiffs' motion and allowed Edgewood's motion. After a trial on the remaining issues, the consideration of which included a view of the Edgewood facility site, the Land Court judge upheld the site plan approval.
On appeal, the plaintiffs claim that the Land Court judge erred in upholding the site plan approval because the site plan violates the town of Rochester's zoning by-laws. Specifically, the plaintiffs contend that the Edgewood facility (1) would violate § XVI(1.4)(14) because it would fail to "[c]onform with State and local sound regulations" which dictate that sound sources may not "[i]ncrease[ ] the broadband sound level by more than 10 dB(A) above ambient," Massachusetts Department of Environmental Protection (DEP)—Fact Sheet: Noise (reaffirmed by DEP's division of air quality control in 1990); and (2) would violate § IV(D)(1) because it would be "detrimental or offensive" and would tend to reduce the value of the plaintiffs' property. For the reasons stated in the carefully considered decisions of the Land Court judge on both the summary judgment motions and posttrial, we affirm.
Background. The proposed site of the Edgewood facility is located within Rochester's industrial district. It is adjacent to an asphalt plant that was approved under the same by-laws now in existence. In addition to the asphalt plant, there is also a concrete block manufacturing plant, a building material deconstruction facility, and several waste facilities in the area. Operations and equipment at the proposed facility would be located fifty to sixty feet from the backyard of the WRT property, and sixty to seventy-five feet from the D'Accis' backyard. At the time the D'Accis purchased their home in 1971, the area had already been zoned for industrial use, and by the time WRT purchased its residential property, the proposed facility was already under site plan review. Additional facts will be set forth in connection with our discussion of the issues.
Relevant by-laws. Section IV of the Rochester zoning by-laws sets forth the provisions that apply to the industrial district. Under by-law § IV(D)(1), permitted uses within the district include "[m]anufacturing, industrial or commercial uses including processing fabrication, assembly and storage of materials"; however, uses "which would be detrimental or offensive or tend to reduce property values in the same or adjoining district" are not permitted. Section XVI contains the rules for site plan approval. Under § XVI(1.3), the planning board must reject a site plan application if it fails to comply with the by-law. The plaintiffs claim that, as proposed, the Edgewood facility would violate § XVI(1.4)(14), which states that site plans must "[c]onform with State and local sound regulations as amended from time to time." Finally, § XVI(1.9)(3)(a) states that the planning board "shall approve an application if said Board finds that the proposed development is in conformance with this bylaw," and that "[i]n granting approval ... the Planning Board may impose conditions, limitations, and safeguards ... which shall be a part of such approval."
Noise impact. "We review the Land Court judge's summary judgment decision de novo.... Because the judge does not engage in fact finding in ruling on cross motions for summary judgment, we owe no deference to his assessment of the record." Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 517 (2011). Section XVI(1.4)(14) of the by-laws states that site plans must "[c]onform with State and local sound regulations as amended from time to time." The parties agree that the applicable sound regulation is 310 Code Mass. Regs. § 7.10, which states, "No person owning, leasing, or controlling a source of sound shall ... permit unnecessary emissions from said source of sound that may cause noise." Ibid. According to the DEP's noise policy, a sound source is in violation of 310 Code Mass. Regs. § 7.10 if it "[i]ncreases the broadband sound level by more than 10 dB(A) above ambient." See DEP Fact Sheet: Noise.
"Although we stand in the shoes of the judge and make an independent review of the same record, ... and the judge's decision does not relieve us of our need to review the record independently, we are often assisted, as here, by the motion judge's thoughtful memorandum of decision." Marhefka, 79 Mass. App. Ct. at 517 n.6.
While the planning board was still reviewing the site plan for the Edgewood facility, the plaintiffs engaged a consultant to conduct a study of the Edgewood facility's projected noise impact on the plaintiffs' properties. The consultant projected that the operation of the Edgewood facility would raise noise levels at the D'Accis' property line by about thirty dB(A) above ambient. Edgewood hired its own noise consultant, who concluded that the Edgewood facility would be able to comply with DEP noise regulations. The planning board also exercised its authority under §§ XVI 1.4 and 1.9 to impose noise conditions on its approval of the site plan.
The conditions are as follows:
"1. The [Edgewood] facility must comply with any applicable DEP Noise Regulations including, but not limited to, (310 CMR 7.10 ), as well as all other special conditions of the DEP Air Permit to be obtained by the applicant prior to the issuance of a Certificate of Occupancy. The applicant shall provide the Zoning Enforcement Officer and the Planning Board weekly audio reports documenting the ambient sound levels at normal and peak hours of operation along the perimeter of the subject parcel for 60 days following the commencement of operations and during the initial seven (7) days of night operations to ensure compliance with the DEP regulations.
"2. Once the facility is operational, the applicant shall be responsible for paying for the Planning Board to retain a noise monitoring consultant to submit seasonal reports to ensure continued compliance with the MassDEP noise standards pursuant to M.G.L. Chapter 44, § 53G. A report shall be submitted by May 1, August 1, and November 1 of each calendar year.
"3. All trucks and equipment under control of the owner that conduct activity on the site shall be equipped with an alternate back-up alarm system that allows for more localized noise and adjustment to the level of background noise."
We agree with the Land Court judge that these conditions were reasonable. As the Land Court judge explained in her summary judgement decision, the planning board could not make a final or accurate determination whether the Edgewood facility would comply with State noise regulations until the operations actually began. In order to begin operations, Edgewood would have to apply for an air permit from DEP, which would only approve the permit if it found the Edgewood facility to be in conformance with State noise regulations. The Land Court judge observed that "it is DEP which has the authority, in the first instance, to determine whether the facility is designed to operate in conformance with State noise regulations." Therefore, the judge reasoned, "it was not unreasonable for the Planning Board to have considered the issue of conformance with state sound regulations to have been 'reasonably addressed' [per Section XVI(1.4)(6) ] at the site plan review stage, despite the applicant's failure to demonstrate actual conformance through its site plan submission." The Land Court judge did not err in allowing Edgewood's motion for summary judgment on the issue of noise impact.
Section IV(D)(1) violation. The Land Court judge's "findings of fact will not be set aside unless they are clearly erroneous or there is no evidence to support them." Wendy's Old Fashioned Hamburgers of N.Y. v. Board of Appeals of Billerica, 454 Mass. 374, 383 (2009) (quotations omitted). The plaintiffs claim that the Edgewood facility would violate § IV(D)(1) because its operation would be "detrimental or offensive." Specifically, the D'Accis claim that the facility's operation would severely impair their enjoyment of their property by causing a sharp increase in daytime and nighttime noise levels, as well as increased truck traffic in front of their home. We agree with the Land Court judge that there is no evidence these anticipated harms are inherent to the Edgewood facility in particular, "as opposed to any other industrial use," and that the by-laws do not contemplate prohibiting an industrial use in an industrial district solely because a nearby residential property owner would find it offensive or detrimental. We therefore discern no error on this point.
This is especially pertinent in the plaintiffs' case, as the plaintiffs purchased their properties after the district had already been zoned industrial. Moreover, as adopted in 1969 and continuing to present day, the zoning by-laws generally do not permit any new residential uses in the industrial district.
The plaintiffs also claim that the Edgewood site would violate § IV(D)(1) by causing a decrease in the value of their respective properties. This claim rests on the assumption that § IV(D)(1) requires the planning board to reject a proposed industrial use solely because its operation would decrease the value of nearby individual residential properties, despite their location in an industrial district. However, as the Land Court judge explained, the plaintiffs' interpretation of the by-law is incorrect. Section IV(D)(1) "plainly looks to whether the subject use would tend to reduce property values in the Industrial District, as a whole." Under the correct interpretation of the by-law, the plaintiffs' claim fails. There is no evidence to support the conclusion that the addition of the Edgewood facility would cause property values across the industrial district to decrease; indeed, there was evidence at trial that suggested "[property] values in the Industrial District, including the value of the D'Acci property, have continued to rise even as new industrial uses have been added in the District." Moreover, "[e]ven accepting that the D'Acci Property, being uniquely situated adjacent to the proposed Asphalt Plant site, may suffer some reduction in its value for residential use, it may be that the highest and best use of the D'Acci property, from a valuation perspective, is as an industrial use." The Land Court judge did not err in ruling that the board of appeals did not exceed its authority in declining to reverse the planning board's site plan approval.
The Land Court judge also rejected the plaintiffs' valuation expert's conclusions, finding them "based on unreliable methodology."
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Judgment affirmed.