Opinion
No. 94-2879
December 29, 1995
MEMORANDUM OF DECISION
INTRODUCTION
Plaintiffs (the "Fletchers") brought this action, pursuant to G.L.c. 40A, § 17A, seeking to annul the decision of the defendants (the "Planning Board") denying plaintiffs a special permit and a site plan approval with respect to plaintiffs' earth removal enterprise in the Town of Hubbardston. The complaint was tried, jury-waived, and, for the reasons stated infra, judgment shall issue for defendants.
Counts I, II and III of the Complaint, trial of which was severed from Counts IV, V and VI, pray for the annulment. The latter counts seek money damages and will be addressed, if appropriate, given the outcome hereof, in subsequent proceedings.
THE DECISIONS BELOW
On December 14, 1994, the Hubbardston Planning Board filed with the Hubbardston Town Clerk a document entitled "Decision Special Permit Application" and a document entitled "Decision Site Plan Application." Both documents denied the Fletchers' efforts to acquire, respectively, a special permit and site plan approval in connection with the Fletchers' proposed earth removal on and around Ragged Hill in Hubbardston.
The Planning Board expressed, as reasons for its denial of the application for the Special Permit, its view that the use proposed by the application would constitute a number of violations of the Zoning Bylaws ("ZBL") of the Town of Hubbardston. More particularly, the Planning Board concluded that the proposed use:
1. "would have significant deleterious effects on the `scenic' and `aesthetic qualities of the environment,'" and "cannot meet the requirement . . . that it not create adverse visual effects," in violation of ZBL § 1.2.b and ZBL § 7.1.e;
2. "[through] the related truck traffic would expose residents to prolonged `excessive and unnecessary noise or odor' and dust," in violation of ZBL § 1.2.b;
3. "would have significant adverse effect to the neighborhood [by reason of the fact that] large and often heavily weighted trucks will continually undermine and damage the [Pitcherville] road to the great detriment of the residents who use it to gain access to their homes," in violation of ZBL § 7.1.a;
4. would be "dangerous to the immediate neighborhood" by reason of the "numerous . . . 20 foot sheer drops" that will constitute, during and upon completion of the project, an "unnatural and inherently unsafe condition . . . presenting permanent unacceptable dangers to residents, especially children," in violation of ZBL § 7.1.d; and
5. "will degrade the environment," in violation of ZBL § 7.1.f.
As an additional ground for its denial of the Fletchers' application for a special permit, the Planning Board cited the application's alleged "incompleteness." The Board observed that the application was "incomplete due to the failure to file an Environmental and Community Impact Analyses . . ." ("ECIA") and was, therefore, in violation of ZBL § 9.2.f.
With respect to its concurrent denial of the Fletchers' request for site plan approval, the Planning Board's decision rested upon the absence of a special permit, the issuance of which, the Board concluded, was, according to ZBL § 9.7, a condition precedent to site plan approval.
THE POSITIONS OF THE PARTIES
The Fletchers maintain that the evidence offered at trial provides insufficient support of the Planning Board's substantive reasons (paragraphs 1-5, supra) for denying the special permit. Additionally, the Fletchers contend that they were not required to submit an ECIA and their omission so to do ought not to condemn their application.
With respect to the refusal of site plan approval, the Fletchers argue that, insofar as the denial of the special permit was unlawful, that denial cannot be employed by the Planning Board as justification for its refusing site plan approval. And, note the Fletchers, the more common procedural order is to address site plan approval before the special permit determination; the Planning Board's inversion of the usual sequence is further demonstration of the illegitimacy of the Board's refusal of site plan approval.
Finally, the Fletchers suggest that the delivery by the Planning Board to the Town Clerk of the decisions denying their requests for permit and approval was tardy and thus annullable.
The Planning Board's position is, not surprisingly, to the contrary. The Board suggests that the evidence is sufficient to warrant its determinations on the substantive issues; that an ECIA was required and its absence was fatal to the special permit; that the site plan approval was properly denied for want of a special permit; and that the delivery of the decisions was not reversibly tardy. For the reasons hereinafter stated, this Court concludes that, although the Planning Board's determination suffered, in many respects, from lack of grounding in the evidence, there is enough support for the Board's end result to warrant judgment in the Board's favor.
THE STANDARD OF JUDICIAL REVIEW
This matter is controlled by G.L.c. 40A, § 17, which provides, in pertinent part, that:
. . . The court shall hear all evidence pertinent to the authority [of the Planning Board] . . . and determine the facts and, upon the facts as so determined, annul such decision if found to exceed the authority [of the Planning Board] . . .
In its finding of facts and consequent consideration of whether or not the Planning Board's decision was consonant with the Board's authority, the court is to engage a de novo assessment of the evidence. That assessment must, of course, consider the facts the court finds to have been established by the evidence and those fairly inferable from the evidence, but the court is strictly enjoined from substituting its judgment, as to the desirability or undesirability of issuing a special permit or a site plan approval, for that of the Planning Board. Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). The court is limited to determining, upon the facts it found from the evidence, whether or not the Planning Board could reasonably have made the decision it did, not whether it should have made that decision.
The reason for the restrictions on judicial review of the Planning Board's action are well documented in the case law. Appellate courts have repeatedly recognized that the statutory scheme has vested the administrative agency with preferential discretion and that to vest similar discretion in the court would erode that legislative policy favoring the primacy of the local agency. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969); Pendergast v. Board of Appeals of Barnstable, 333 Mass. 555, 559 (1959). Furthermore, precedent has acknowledged that the agency possesses a particular expertise, a familiarity with local conditions and a comprehension of the substance and history of the pertinent by-law or regulation that a court is unlikely to match. Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 479 (1986); see also Manning v. Boston Redevelopment Authority, 400 Mass. 444-452-453 (1987). Accordingly, should the facts found by the court rationally support the Planning Board's decision, the court ought not to annul that decision even if the court, were it the Planning Board, might have rendered a different decision. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 488 (1979); Board of Appeals of Southhampton v. Boyle, 4 Mass. App. Ct. 824, 825 (1976).
In sum, if the facts found are reasonably consistent with the Planning Board's decision, that decision will not be disturbed eventhough a contrary result might also reasonably be reached upon the same facts. The burden of proof is upon the Fletchers to adduce evidence of facts demonstrating that the Planning Board's decision was arbitrary — that is, not based in reason — and that the special permit and site plan approval should have been issued. Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 10 (1981). At bar, the Fletchers have not borne that burden.
FINDINGS OF MATERIAL FACT
Based upon the evidence presented (and a view taken) at the trial, and employing the "fair preponderance" standard, I find the following facts:
1. The site at issue lies to the west side of Pitcherville Road. A number of earth removal projects lie to the east side of Pitcherville Road.
2. The Fletchers own the site at issue. They also own, and have been operating since 1986, an earth removal business on a site contiguous to the site at issue; the contiguous site also lies to the east of Pitcherville Road. The contiguous site has access to Pitcherville Road and the site at issue has access to Pitcherville Road through the contiguous site.
3. Fletcher's earth removal business upon the contiguous site currently involves the passage of 25-75 loaded trucks per day from the contiguous site to Pitcherville Road and along Pitcherville Road to Route 68. The use of the contiguous site has "grandfather" protection from the requirements of a special permit and site plan approval.
4. Should the Fletchers be permitted to use the site at issue in the manner they propose, no increase in the number of trucks proceeding daily from the site at issue and from the contiguous site will result. The material hauled by the trucks from the site at issue will, however, be different in kind from the material hauled by trucks from the contiguous site.
5. Should the Fletchers be permitted to use the site at issue in the manner they propose, the use will continue for 30 years. (The Court makes no finding, due to an absence of evidence, as to how long the use of the contiguous site will continue should the use of the site at issue not be permitted.)
6. The total area in the vicinity of Pitcherville Road devoted to earth removal businesses is approximately 500 acres.
7. The contiguous site consists of approximately 48 acres.
8. The site at issue consists of approximately 60 acres and, together with the contiguous site, is the only source of "hard rock" in the area.
9. The earth removal businesses in the vicinity of Pitcherville Road other than those conducted or sought to be conducted by the Fletchers involve the removal of "soft" substances, generally sand.
10. The current use of Pitcherville Road by trucks employed by the Fletchers in connection with their earth removal business at the contiguous site amounts to one third of the daily total loaded truck traffic on said road. Two-thirds of the loaded truck traffic on Pitcherville Road is generated by earth removal businesses at non-Fletcher sites to the east of Pitcherville Road.
11. Although some of the residents of Pitcherville Road have complained to Town authorities with respect to the truck traffic on Pitcherville Road, there have been no congestion or accidents on said Road occasioned by trucks from earth removal businesses.
12. Should the proposed use by the Fletchers of the site at issue be permitted, 8,000,000 cubic yards of material will be removed from said site during the duration of the project.
13. Approximately 300,000 cubic yards of material have to date been removed from the contiguous site.
14. The site at issue is a prominent high ground which would be substantially altered in appearance during and at the conclusion of the proposed project.
15. Should the proposed use be permitted, the site at issue will be treated with phased revegetation, a process that will seek to cloak the effects of the proposed project by planting trees, et cetera, as each segment of the "dig" is completed.
16. Should the proposed use be permitted, the particular operation at that "dig" will not be visible from either Route 68 (the most travelled road passing through Hubbardston) or Pitcherville Road after the project is completed. (The Court makes no finding, due to the absence of evidence, with respect to such visibility during the proposed project.) The current operation at the contiguous site is visible from a few locations on Route 68 and Pitcherville Road. Said views reveal a dramatic, scarred insult to Ragged Hill.
17. The excavation activity in the contiguous site will be far more visible to the general public than would the activity in the site at issue should the proposed use be permitted.
18. An access road from Pitchertown Road now services the contiguous site and, should the proposed use be permitted, will be extended by the Fletchers to service the site at issue. The proposal will include a road encircling the area to be excavated and providing access to each bench or level of the "dig." Each bench of the proposed excavation will be no more than 20 feet above or below each other bench. The Hubbardston Fire Department has equipment capable of traversing the proposed access road extension and the proposed encircling road. Said equipment includes 24 and 35 foot ladders capable of spanning the distances between benches.
19. The circumstances extant at the earth removal operations in the sand pits to the east of Pitcherville Road are at least as dangerous to human safety as would be the circumstances in the site at issue should the proposed use be permitted.
20. Should the proposed use be permitted, the dust, and noise generated by the use would not be violative of applicable governmental regulations.
21. The application for special permit and site plan approval were heard by the Board simultaneously.
22. On November 22, 1994, the Board on motion to approve the application for special permit as submitted, voted against the motion.
23. On November 22, 1994, the Board, on motion to approve the application for special permit with conditions, voted against the motion.
24. The practices and procedures of the Board permitted the filing of a motion to reconsider a failed motion to approve. No such motion was offered in the case at bar.
25. The practices and procedures of the Board contemplate that an application will be finally denied only upon a motion to deny. A failed motion to approve is not a final denial.
26. On December 6, 1994, the Board, on motion to deny the application for site plan approval, voted in favor of the motion.
27. On December 13, 1994, the Board, on motion to deny the application for special permit, voted in favor of the motion.
28. On December 14, 1994, the Board filed the results of its December 6, 1994 and December 13, 1994 actions (denying, respectively, the site plan approval and the special permit) with the Town Clerk.
29. Pitchertown Road is physically deteriorating and a principal cause of its deterioration is the volume of traffic along the way. Since 1991, there has been a significant increase in the truck traffic on Pitcherville Road occasioned by the earth removal operations on the east side of Pitcherville Road. The threat to public safety caused by the Road's deterioration could be ameliorated by widening and repairing Pitcherville Road.
30. There are approximately 25 single family residences along the portion of Pitcherville Road on which the trucks from the operation on both sides of Pitcherville Road travel.
31. The removal operation to the east of Pitcherville Road are not visible from Pitcherville Road or from Route 68.
32. The contiguous site is visible from Pitcherville Road and from Route 68. While the site at issue is not visible from Pitcherville Road or Route 68, the combined effects of the current operations at the contiguous site and the proposed use of the site at issue will flatten Ragged Hill, upon which both sites are located, and the alteration of Ragged Hill will be visible from Pitcherville Road, Route 68 and other areas accessible to the general public.
33. The nature of the proposed earth removal operation in the site at issue is generally the same as the current earth removal operation in the contiguous site.
CONCLUSIONS
We shall treat in turn each of plaintiff's challenge to the correctness of the Planning Board's denial of special permit and site plan approval.
A. Noise, Odor and Dust
The Planning Board has determined that "the project, particularly the related truck traffic, would expose residents to prolonged `excessive noise or odor' and dust" and "a degradation of air quality" in violation of ZBL § 1.2.b. This Court heard no evidence to support the proposition that the proposed use would visit excessive noise, odor, dust or a degradation of air quality upon residents by reason of truck traffic or otherwise. While there is evidence that the excavation activities might generate some noise, odor and dust at the site at issue, there is nothing in the evidence that suggests that residents would be exposed thereto. Any effects upon the residents occasioned by truck traffic would, according to the evidence, be limited to driving difficulties resulting from the pitting, rutting and break-up of Pitcherville Road, discussed infra, and not from noise, odor, dust or air quality degeneration. The Planning Board's denial of the applications is not sustainable on grounds of noise, odor, dust or air quality degradation. Z.B.A. § 1.2b. guarantees the right of "residents" to "clean air" and "freedom from excessive . . . noise or odor." There is no evidence that the proposed use would derogate from that right and those freedoms.
B. Damage to Pitcherville Road
The Planning Board determined that the proposed use would constitute a "significant adverse effect to the neighborhood" in violation of ZBL § 7.1.a. That determination was based upon the Board's finding that "large and often heavily weighted trucks will continually undermine and damage the [Pitcherville] road," thereby compromising the residents' access to their property.
The evidence, however, suggests that at least two-thirds of the truck traffic originates from the enterprises on the east side of Pitcherville Road, an area of earth removal projects wholly unconnected with the Fletcher's existing and proposed uses on the west side of Pitcherville Road. Furthermore, the evidence is unchallenged that, should the proposed use be permitted, there will be no increase in the Fletchers' truck traffic. Trucks that serviced the Fletchers' existing use on the contiguous site will service their proposed use on the site at issue. Both sites will use the same access road to Pitcherville Road and the same southerly portion of Pitcherville Road to Route 68.
In sum, the proposed use will not be responsible for intensified truck traffic on Pitcherville Road and, in any event, the great majority of truck traffic will be attributable to earth removal activities other than the Fletchers. Accordingly, the Planning Board's denial of the applications is not supported by the evidence pertaining to truck traffic and its adverse effects upon the Pitcherville Road neighborhood. Whatever the deleterious impact of truck traffic, it will not be "caused," as that term is used in ZBL § 7.1.a, by the proposed use.
C. Danger to the Immediate Neighborhood
Citing ZBL § 7.1.d, the Planning Board ruled that the proposed use would be "dangerous to the immediate neighborhood" because the project's resulting "20-foot sheer drop" would present "an inherently unsafe condition [with] unacceptable dangers to residents, especially children."
The evidence of dangers posed by the 20 foot benches was, at best equivocal. While declaiming the dangers, the witnesses acknowledged, inter alia, that conclusions were based on an assumption of 40 foot benches, that fire department rescue equipment was adequate to service 20 foot benches and that fire department vehicles would be able to negotiate the encircling roads at the site in question.
Nevertheless, even conceding the doubtful proposition that the configuration of the site in question posed "unacceptable dangers," there was no evidence that those dangers constituted threats to "residents," as the Board found, or to the "immediate neighborhood," as ZBL § 7.1.d requires. Evidence of danger to "residents" was wholly speculative, consisting of theoretical concerns for the well being of trespassers, hunters and others who might wander, uninvited, onto the site in question. The surmise in which the witnesses engaged was far from sufficient to warrant the Board's conclusion that "residents" were endangered by the benches.
Furthermore, and in any event, there was no showing in the evidence that the "immediate neighborhood" was endangered by the construct of the benches, a showing mandated by ZBL § 7.1.d. Indeed, the relative remoteness of the site at issue from "neighborhoods," immediate or not, immunizes the proposed use from any "benches" challenge grounded on ZBL § 7.1.d.
For those reasons, the Board was in error insofar as it based its denial of the applications upon the dangers presented by the proposed use to the "immediate neighborhood."
D. The Absence of the ECIA
The Board, on grounds of "incompleteness" denied the applications for want of an Environmental and Community Impact Analysis ("ECIA") "as required by [ZBL] § 9.2.f." That ground does not support the Board's denial.
The Hubbardston Zoning Bylaw demands that: "An applicant for site plan approval shall submit . . . A community and environmental assessment report as required by Article 8." ZBL § 9.2.f (emphasis added). Article 8 requires that: "Any application for a special permit to be allowed to conduct a use listed in Section 4.5 (b-e) or Section 4.7 (a-f) . . . shall be required to submit . . . an [ECIA]." ZBL § 8.01.
It is abundantly clear that, if the application for special permit does not seek authorization for a use listed in the referenced sections of Article 4, then there is no requirement that, as a precondition to issuance of a special permit, an ECIA be presented. And, if Article 8 does not "require" an ECIA in connection with a special permit, then Article 9, by its very terms, exempts an applicant from the necessity of presentation of an ECIA in connection with site plan approval. ZBA § 9.2.f.
At bar, the application for special permit does not seek approval of a use listed in the ECIA-triggering provisions of ZBL § 8.01 and thus need not be accompanied by an ECIA. Similarly, the application for site plan approval is exempted from the need to be escorted by an ECIA because ZBL § 9.2.f demands an ECIA for site plan approval only when Article 8 demands one for special permit allowance. For the reason that Article 8 does not require an ECIA for special permit under the circumstances at bar, ZBL § 8.01, it follows that ZBL § 9.2.f does not require an ECIA for site plan approval. The Board's decision to the contrary is erroneous as a matter of law and provides no adequate grounding for its denials.
E. Aesthetics and Visual Effects
In its invocation of the Bylaws' protection of "the right . . . to scenic . . . and aesthetic qualities of the environment," ZBL § 1.2.b, and in its reliance upon the Bylaws' injunction that a use "not create . . . adverse visual effects . . . so as to adversely effect (sic) the immediate neighborhood," the Board is on far sounder ground. The scenic/aesthetics/visual effects evidence received at trial, while hardly overwhelming in its support of the Board's conclusion to deny the applications, does provide warrant for an affirmation of the Board's determination, especially in view of the limited scope of judicial review under which this Court labors.
The credible evidence suggests that Ragged Hill, the locus of both the site at issue and of the contiguous site, will be levelled, substantially if not in toto, during the proposed use. While the locus is only marginally visible from Route 68, the principal way of transit through Hubbardston, the evidence permits the conclusion that, from other vantages throughout Hubbardston (such as the Pitcherville Road and Dogwood areas), the evisceration of Ragged Hill will be visible. It may be that the end product of the proposed use would be visually inoffensive, but the Board was not unreasonable in drawing from the evidence the conclusion that the final result would be aesthetically inferior to the existing landscape (even conceding its current defacement by the use of the contiguous site) or that, in any event, the thirty year process of getting to that end result would be aesthetically unacceptable.
Given the deference that courts customarily pay to the determination by local agencies as to the desirability of preserving scenic assets, see, eg, Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 479 (1986), this Court is not inclined to substitute its judgment for that of the Board with respect to the negative impact, upon the ambiance of Hubbardston, which would be occasioned by the proposed use. Reasonable viewers might differ as to whether the physical transformation of Ragged Hill would be, on balance, so prejudicial to the interests of the citizens in the integrity of the existing environment as to outweigh the interests of the owners in the proposed use of their property. Such a difference is, however, no justification for uprooting the reckoning of the Board empowered by the local citizenry to make such measurements. Deference to the local institution is demanded by our law and that deference requires judicial forbearance unless no assessment of the evidence will rationally permit the institution's conclusion.
At bar, the evidence does describe an alteration to the landscape of Ragged Hill, albeit an alteration which is minimally visible from the population and traffic centers and an alteration which is likely to be rendered substantially less offensive by the revegetation, et al, proposed by the Fletchers. That evidence does, therefore, support the Board's conclusion that the proposed use will have "significant deleterious effects on the `scenic' and `aesthetic' qualities of the environment" and an "adverse visual effect," in violation of respectively, ZBL § 1.2.b and ZBL § 7.1.e. While this Court may differ from the Board with respect to the quantum of injury to the visible environment limned by the evidence, the Court must concede that the evidence does provide reasonable grounding for the Board's inferences and, for that reason, the Board's decision will not be annulled.
F. The Tardiness Issue
The Fletchers have suggested that the Board's action on November 22, 1994 (rejecting both the motion to approve the special permit as submitted and the motion to approve the special permit with conditions) was a final determination of the Fletchers' applications and the trigger date for the Board's obligation to record its determination within 14 days at the Town Clerk's office as demanded by G.L.c. 40A, § 9. Plaintiffs claim that, because the Board did not file a record of its doings until December 14, 1994, the Board's determination ought to be annulled by reason of the filing's violation of § 9. Plaintiffs argument is without merit for a number of reasons.
First, the November 22, 1994 votes upon motion to approve applications were not final determinations of the issues they addressed because the custom and practice of the Board was to make final determinations only by means of votes upon motions to deny applications. In the case at bar, on December 6, 1994, motions to deny both the Fletchers' special permit application and their site plan approval application were offered and prevailed. The December 13, 1994, session of the Board addressed certain business, left unfinished on November 22, 1994, with respect to the applications. Thus, the December 13, 1994 vote was, as forecast on November 22, 1994, a crafting of the articulation or rationale for the December 6, 1994 final determinations "to deny" the applications, as to which only preliminary sentiments had been reached on November 22, 1994. Because the determinations of the Board were not finally and formally effectuated until December 6, 1994 and December 13, 1994, the filing of the record of those determinations with the Town Clerk on December 14, 1994, was well within the period allowed by G.L.c. 40A, § 9 and provides no reason for annulment.
("Planning Board to compile a set of reasons/rational [sic] to be reviewed by the Board as part of making a formal determination [to be] voted on at a future date to reject the . . . special permit.")
Second, assuming arguendo that the December 14, 1994, filing was tardy, there has been no showing that the tardiness has occasioned any prejudice to the Fletchers. Absent harm to the Fletchers, or a statutory mandate that tardiness requires annulment, this Court is unwilling to impose a nuclear remedy for a de minimus violation. See Zuckerman v. Zoning Board of Appeals of Greenfield, 394 Mass. 663, 666-667.
The Fletchers conceded at trial that they received appropriate notice of the Planning Board's actions.
G. The Question of Costs
This Court heard no evidence that the Board acted with gross negligence, bad faith or malice. Had there been such a showing, G.L.c. 40A, § 17 would authorize the recovery of costs by the Fletchers. In the circumstances at bar, however, there is no occasion for an award of costs.
JUDGMENT
Judgment shall issue for defendants upon Counts I, II and III of the Complaint.
Daniel F. Toomey Justice of the Superior Court
DATED: 1995