Heard: October 20, 2016.
Civil, Zoning appeal, Standing. Zoning, Appeal, Person
action commenced in the Land Court Department on October 14,
2009. The case was heard by Karyn F. Scheier, J.
K. Bowen for the plaintiff.
W. Morgan for McCourt Construction & another.
Carolyn M. Murray (Judy A. Levenson also present) for
planning board of Braintree.
Present: Meade, Milkey, & Kinder, JJ.
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.
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.
locus, now owned by RMT Braintree, LLC, and occupied by
McCourt Construction,  contains approximately nine acres and is
located in both the commercial and watershed protection
districts. 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
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.
The buffer zone.
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. 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.
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."
1994 special permit.
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. Condition 18 restricted the use of the
addition to storage only and condition 31 prohibited
permanent outdoor storage of materials or
equipment. 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.
Ainslie's post-1994 use.
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.
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,  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.
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. 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.
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 ...