Posted by: Patricia Salkin | April 14, 2017

MA Appeals Court Finds Board’s Decision Granting a Modified Special Permit Removing the Conditions Must Be Reconsidered

Roger Aiello owned fifteen acres of residentially zoned property in Braintree, located directly north of the commercially zoned locus. Aiello’s property consisted of a number of parcels, including a prior nonconforming catering business and a “semi-agricultural use,” a goat pasture. In 1994, when the property was owned and occupied by the former owner, Ainslie Corporation, the board granted a special permit and site plan review approving a proposed 3,750 square foot addition subject to thirty-four conditions. In 2008, the next owner 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. The board characterized the uses proposed by McCourt as “contractor’s yard, light manufacturing, non-residential garage, and automotive repair,” and noted that they were “by-right” uses in the commercial district. The board justified the removal of these conditions because the “owner/operator does not have the interior storage needs of the previous tenant.” On appeal to the Land Court, the judge concluded that Aiello lacked standing to appeal, and reasoned that the noise and odors coming from the locus were the result of the uses allowed for decades either by right or specifically allowed pursuant to the decisions of the board, including the 1994 special permit.

The court first noted that “crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal.” Here, McCourt admitted in its application that it had been using the property in a manner that violated the two conditions it sought to have removed. Those uses prompted complaints of noise, odors, and visual impacts from Aiello and caused him to install a fence in an effort to reduce the impact. Moreover, the noise impact from use of the parking area as a contractor’s yard with all of the attendant noise associated with the movement of vehicles and materials was found to be more than de minimis. As such, the court found the trial judge’s finding that Aiello lacked standing was erroneous.

The court next analyzed the trial court’s finding that the proposed fencing was inadequate to meet the requirements of the landscape and buffer zone regulations or to satisfy the criteria relevant to exceptions from the buffer zone requirements. Since McCourt did not argue on appeal that the judge’s decision on the merits with regard to visual impact was wrong, the court determined that the board must reconsider the allowance of the special permit modification.

Aiello v. Planning Board of Braintree, No. 15-P-1321 (4/14/2017)

The opinion can be accessed here:

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