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Aiello v. Planning Board of Braintree

Appeals Court of Massachusetts, Suffolk

April 14, 2017

ROGER AIELLO, trustee, [1]
v.
PLANNING BOARD OF BRAINTREE & others.[2]

          Heard: October 20, 2016.

         Practice, Civil, Zoning appeal, Standing. Zoning, Appeal, Person aggrieved, By-law.

         Civil action commenced in the Land Court Department on October 14, 2009. The case was heard by Karyn F. Scheier, J.

          Brian K. Bowen for the plaintiff.

          Jason W. Morgan for McCourt Construction & another.

          Carolyn M. Murray (Judy A. Levenson also present) for planning board of Braintree.

          Present: Meade, Milkey, & Kinder, JJ.

          MEADE, J.

         In this matter we examine the issue of standing to appeal from a zoning decision in the context of an abutter's appeal of decision of a local planning board (board) to allow modification of a 1994 special permit to remove conditions that benefited the residential abutter in terms of visual and auditory impacts. We conclude that it was error for the judge to find that the plaintiff lacked standing to appeal from the board's decision. We address only the merits argued in the plaintiff's brief and conclude that the board's decision granting a modified special permit removing the conditions must be reconsidered by the board.

         1. Background.

         a. Aiello's property.

         The plaintiff, Roger Aiello, owns fifteen acres of residentially zoned property in Braintree, located directly north of the commercially zoned locus. Aiello's property consists of a number of parcels; in addition to single and multifamily residential units, it contains a prior nonconforming catering business and a "semi-agricultural use, " a goat pasture. One of Aiello's single-family residences is located within eleven feet of the locus's northern boundary. Aiello's property is at a higher elevation than the locus. The judge found that the Aiello property has a clear view of the structure on the locus and portions of the parking area. The farther away one stands from the boundary line, the more visible the locus becomes.

         b. The locus.

         The locus, now owned by RMT Braintree, LLC, and occupied by McCourt Construction, [3] contains approximately nine acres and is located in both the commercial and watershed protection districts.[4] The locus is long (approximately 2, 000 feet), running from east to west, and narrow (approximately 200 feet). It currently is improved with a 675-foot-long commercial structure (sometimes referred to as building). Development of the rear, or western end, of the locus, is limited by the presence of wetlands. With only thirteen feet between the building and the locus's southern boundary, there is no parking or access along the southern side of the building where the locus abuts other commercial property.[5]

         Access from the public way is on the eastern end, or "front, " of the locus, and pavement covers most of the eastern and northern portions of the locus. West of the structure, approximately forty-five feet are paved before the wetlands begin. For many years, parking has been directly along the eastern and northern sides of the building. Vehicular traffic traditionally has run between the row of cars along the building and the northern line of the parking area.

         c. The buffer zone.

         There are seventy-two feet between the building and McCourt's northern boundary with Aiello. Thus, the entirety of the exterior to the north and twenty-eight feet of the interior of the building are within the 100-foot buffer between commercial and residential zones required by Braintree's zoning by-law (by-law), as set forth in the footnote.[6] The bylaw's buffer zone provisions protect residential abutters in several important ways. They provide a generous distance buffer of 100 feet and severely restricts use of the buffer for anything other than access and passive recreation. Parking lots, for example, are prohibited, along with even passive recreational uses that reduce "the effectiveness of the transition area as a year-round screen." In addition, the by-law, with remarkable particularity, guides in great detail the composition of the required landscape buffer.[7]

         A special permit may be granted modifying the buffer and landscape requirements where, "due to the size, shape or topography of a lot, the strict provisions of [the by-law] would reduce the usable area of a lot so as to preclude a reasonable use of the lot . . . where the side of a building, a barrier, and/or the land between the building and the lot line has been specifically designed, through a combination of architectural and landscaping techniques, to minimize potential adverse impacts on abutting lots." By-law § 135-702(B)(12) (2003). The special permit granting authority must consider, as pertinent here, "(a) [p]roximity to a residential development, (b) [t]opography of the site and the adjacent property, (c) [n]ature of the use and/or activity on the site, (d) [l]and use of adjacent property, . . . [and] (f) [p]otential for impact of any nuisance activities such as noise, light, or glare." Ibid.

         d. 1994 special permit.

         The locus has the benefit of several variances and special permits allowing additions to the commercial building over the years, but we are principally concerned with the 1994 special permit, which is what McCourt seeks to modify. In March of 1994, when the locus was owned and occupied by the former owner, Ainslie Corporation (Ainslie), the board granted a special permit and site plan review approving a proposed 3, 750 square foot addition subject to thirty-four conditions.[8] Condition 18 restricted the use of the addition to storage only and condition 31 prohibited permanent outdoor storage of materials or equipment.[9] In addition, condition 34 required the "applicant/owner" to "take appropriate actions to minimize noise generated from the facility that may result in disruption to the abutting residential neighborhood." There was no appeal from the 1994 variance (see note 8, supra) or special permit.

         e. Ainslie's post-1994 use.

         Ainslie, or a related entity, had owned and occupied the locus since 1959 and, following the 1994 special permit, continued to occupy the locus and engineer and manufacture products through 2003. The northern parking lot accommodated 80 to 126 employee vehicles. The judge found that "[i]n connection with its business, Ainslie received at [the l]ocus deliveries of aluminum, steel and other raw materials. Platform trucks also entered and exited [the l]ocus to reclaim waste and materials used as part of the manufacturing process. Trucks often drove the length of the northerly paved area of [the l]ocus to gain access to a rear loading area." There was no evidence that noise from the uses inside the commercial structure could be heard outside the structure. So far as the record reflects, Aiello never complained to Ainslie or to the town about Ainslie's uses of the locus.[10]

         f. McCourt's use.

         McCourt, a large contractor, became a tenant of the locus in 2003. McCourt immediately began using the northern parking lot as a contractor's yard for storage of vehicles, [11] materials, and equipment, and used the structure, including the 1994 addition, as a nonresidential garage for repair of its vehicles and equipment. Also, according to Aiello, a bus company rented space and conducted all kinds of repairs in the building and outside, along his boundary. Aiello testified he could see and hear the various industrial vehicles and materials -- including backhoes, buckets, bulldozers, excavators, construction equipment and their back-up alarms --and the dropping of metal plates from his property. He further testified that the visual impact, noise, and fumes caused him to complain to authorities on multiple occasions. Aiello described the conditions as "brutal, " prompting him to erect a stockade fence in an effort to abate the conditions.[12]

         g. 2009 modification.

         In 2008, McCourt filed an application for a special permit to modify the 1994 special permit by removing conditions 18, which restricted the use of the addition to storage only, and 31, which prohibited permanent outdoor storage. In its application, McCourt admitted that it had used the locus for outdoor storage of equipment and supplies and the parking of wheeled or tracked equipment until directed to cease these activities by the building inspector. The application further concedes that over the course of 2007, the building inspector's office informed him that the parking of construction vehicles and equipment in the parking lot violated the 1994 special permit condition prohibiting permanent outdoor storage of materials or equipment, and the use of the 1994 addition to repair construction vehicles and equipment violated the 1994 special permit.[13] McCourt characterized its modification request as seeking to allow "(i) minor adjustments to the striping of the existing on site paved parking area so as to provide designated parking of over-sized wheel and tracked vehicles and small equipment trailers [along the northern boundary]; (ii) exterior permanent storage of construction equipment and supplies within a clearly designated 2, 040 square foot area located more than 100 feet from the northern property line; and (iii) the use of an existing 3, 750 square foot portion of the building [the portion allowed pursuant to the 1994 variance and special permit] for the maintenance and repair of construction vehicles." In addition to parking oversized vehicles and storing small equipment and trailers on the northern line of the parking area, the proposed plan also shows an area for storage of snow removed from the parking areas along the northern property line.

         Although McCourt's stated practice and preference is to repair and maintain equipment on worksites, it represented that, on average, it would have a maximum of two large vehicles "inside the building and [two parked] in the over-sized spaces [along the northern boundary line] awaiting service/repair." McCourt also expected to have a maximum of five pieces of smaller equipment on ...


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