Opinion
20-P-1426
02-24-2022
RAYMOND BRETON, INC. [1] v. PLANNING BOARD OF PALMER.
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
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Raymond Breton, Inc. (Breton), filed a special permit application with the planning board for the town of Palmer (board), seeking approval for vehicular access to a site on which Breton proposed to conduct earth removal operations. The board found that Breton failed to satisfy several requirements of Palmer's zoning ordinance and denied the application. On review under G. L. c. 40A, § 17, a Superior Court judge upheld the board's decision. Breton appeals, arguing principally that the judge's findings do not provide a substantial basis for denying the application. We affirm.
Background.
The following facts are undisputed. The proposed project would be in operation for twenty-two years and would remove approximately 2.8 million cubic yards of gravel from seventy-two acres of undeveloped wooded land in Palmer. The project site is in a rural residential/agricultural zoning district, and all the abutting properties are residential. The "[a]rea residents use their properties in the manner one would expect in a rural, residential area, including spending time in their yards."
In the application at issue, Breton sought a special permit for vehicular access to the site via Boston Road, which "is a main road with light to moderate traffic including some commercial vehicles." To connect the site to Boston Road, Breton proposed constructing a driveway that would run off of Boston Road between two abutting properties; these homes would be less than 200 feet from the driveway. The driveway would first run 300 feet away from Boston Road and parallel to the boundaries of both properties, then turn south and run 200 feet along the rear of one of the properties, before turning again and running 1, 200 feet uphill toward the gravel removal site. Breton estimated that the trucks accessing the driveway would make forty-eight trips each weekday, traveling at around twenty miles per hour.
Breton filed a separate application for site plan approval and a special permit authorizing the earth removal operations. The board denied that application based on insufficient information, and the judge affirmed. Breton raises no argument on appeal concerning this part of the judge's decision.
The board held a public hearing on the application, at which the abutters and other residents expressed numerous concerns about the project, including the impacts that the noise, diesel fumes, and vibrations from the trucks would have on neighboring properties. At the close of the hearing, the board denied the application on the ground that it failed to satisfy several subsections of the pertinent section of the zoning ordinance. Breton appealed, and, after a bench trial, the judge concluded that the board's decision was not based on a legally untenable ground and that the evidence supported the denial of the application.
Discussion.
On judicial review under G. L. c. 40A, § 17, a judge must first determine whether the board's decision was based on "'a legally untenable ground,' or, stated in a less conclusory form, on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 7 3 (2003). It is uncontested here that the board applied legally permissible criteria. The question then is whether, "on the basis of the facts [the judge] has found," it can be said that the board applied those criteria "in an 'unreasonable, whimsical, capricious or arbitrary' manner." Id. at 74. This is a highly deferential standard, under which the board's denial of an application will not be disturbed except in those "rarely encountered" situations "where no rational view of the facts the [judge] has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria." Id. at 74-75. In addition, on appellate review, we will not set aside the judge's factual findings absent a showing of clear error. See Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).
We conclude that, on the facts the judge found, he correctly upheld the board's denial of the application. As an initial matter, we agree with the board's contention that Breton's failure to address all of the grounds cited in the board's decision is fatal to its appeal. As Breton acknowledged at oral argument, if there is at least one "valid basis for the board's denial of the permit, its other reasons for the action become immaterial." S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass.App.Ct. 357, 359 (1976) . While Breton challenges the factual underpinnings for the board's concerns relative to noise, diesel fumes, and vibrations, these were not the only bases for the denial. The board also concluded that Breton did not satisfy several other requirements of the zoning ordinance, including that "[t]he requested use will be harmonious with the appropriate and orderly development of the zoning district," "harmonious with the visual character of the neighborhood," and not "unduly impair the integrity and character of the [zoning] district."
We do not agree that, in citing these concerns, the board was merely parroting general regulatory language, as Breton argues. The board explained that it "had to consider the effects of this access road and its primary use upon the other current major land users in this area of town." The board conducted that analysis and found that the area "is rural and residential in nature," "[t]here are no commercial uses within the vicinity," and the driveway would be "in extreme proximity to the two residences on either side." In view of these undisputed findings, and similar undisputed findings by the judge, it was rational for the board to conclude that the large-scale gravel removal operations proposed by Breton would not be harmonious with the orderly development, character, and aesthetic qualities of the neighborhood. Breton does not argue otherwise on appeal.
While this alone would be a sufficient basis to uphold the board's decision, see S. Volpe & Co., 4 Mass.App.Ct. at 359-360, we need not rely on it because the arguments that Breton does raise do not demonstrate an entitlement to relief. After carefully detailing the evidence presented at trial, the judge determined that that evidence supported the board's concerns about the noise that would be generated by the trucks. In arguing that this was error, Breton points to an expert report prepared by Cross Spectrum Acoustics Inc. (Cross Spectrum), which Breton submitted with its application. As described in the report, Cross Spectrum conducted an assessment to determine whether the noise from the trucks accessing the driveway would violate a Department of Environmental Protection (DEP) policy requiring that a noise source not increase background noise levels by 10 dB or more. After measuring the background noise at a location fifty feet from Boston Road and between the two abutting homes, Cross Spectrum found that the maximum noise from the trucks would exceed the background noise level by 25 dB. But Cross Spectrum also found that, if the noise from the trucks were averaged out over an hour, it would increase the background noise level by only 5 dB, within the DEP limits. Based on this, Cross Spectrum opined that "the additional truck traffic is not likely to be noticed among the current level of traffic currently experienced by those homes."
The president of Cross Spectrum also testified at trial.
The judge discredited the methodology and conclusions of the report for two reasons, neither clearly erroneous. First, the judge found that Cross Spectrum measured the background noise level at the front of the abutting properties, adjacent to Boston Road, while neglecting to consider that the proposed driveway would run along "the side and behind [one of those properties], where no traffic noise is generated." Because the baseline noise levels in those locations were "likely significantly lower" than the measurement taken near Boston Road, the judge determined that the noise from the trucks would likely exceed the DEP limits with each passage. Breton does not argue that this finding was clearly erroneous or otherwise address this aspect of the judge's decision on appeal.
Second, the judge concluded that the "averaging out" methodology used by Cross Spectrum "does not reflect how people experience noise." While Cross Spectrum treated the noise from the trucks as "intermittent or impact sounds," the judge found that the trucks would produce "loud continuous sounds" as defined by Cross Spectrum's own report. As the judge observed, the trucks "would be traveling at least 1700 feet along the driveway"; at a speed of twenty miles per hour, each trip "would take a full minute." The judge also observed that, "[w]hen returning under load, the trucks would have to brake coming down the hill from the site," and "[a]nyone who has heard a large, commercial vehicle slowing is aware of the sound caused by use of the hydraulic friction brakes and drag from the drive train." These findings, which are not contested, support the judge's conclusion that, notwithstanding Cross Spectrum's report, the board's concerns about noise were not "unreasonable, whimsical, capricious, or arbitrary." Britton, 59 Mass.App.Ct. at 74. Contrary to Breton's contention, that the board did not offer contrary expert evidence, and that a peer reviewer seemed to accept at least some aspects of Cross Spectrum's methodology, did not require the judge to accept Cross Spectrum's opinion. See Police Pep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012) (factfinder was "entitled to discredit" expert opinion even though opposing party "offered no expert testimony of her own"); Paniels v. Board of Registration in Med., 418 Mass. 38 0, 392 (1994), quoting Commonwealth v. PeMinico, 408 Mass. 230, 235 (1990) ("[t]he law should not, and does not, give the opinions of experts on either side of . . . [a]n issue the benefit of conclusiveness, even if there are no contrary opinions introduced at the trial").
The author of the peer review report did not testify at trial.
In light of the conclusions we have reached, we need not address Breton's arguments that the evidence did not support the board's concerns regarding diesel fumes and vibrations. See S. Volpe & Co., 4 Mass.App.Ct. at 359-360.
Judgment affirmed.
The panelists are listed in order of seniority.