Opinion
19-P-1316
10-14-2020
RALPH GORDON, JR., & others v. GREENFIELD INVESTORS PROPERTY DEVELOPMENT LLC, & another.
NOTICE: 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 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Ralph Gordon, Jr., Susan Gordon, Shirley Lowe, Joanna J. Mann, Joanna W. Mann, Michael Skawski, and Melani Skawski, brought the present action pursuant to G. L. c. 40A, § 17, challenging the decision of defendant planning board of Greenfield (board) to grant a special permit to the defendant Greenfield Investors Property Development LLC (Greenfield Investors) to build a 135,000 square foot "big box" store on Route 2A in Greenfield (project). Following a bench trial, a judge of the Superior Court rejected the plaintiffs' challenge. On appeal, the plaintiffs contend that the judge (1) misconstrued the Greenfield Zoning Ordinance (Ordinance), which they assert mandates certain level of service (LOS) parameters for traffic intersections impacted by the project, (2) erred in finding that Greenfield Investors had complied with traffic standards under the board's "Major Development Review Rules & Regulations for Impact Statements" (MDR), and (3) erred as a matter of law in affirming the board's decision despite concluding that the plaintiffs had standing because they presented "credible evidence . . . that they would actually suffer an adverse impact" as a result of the project. We affirm.
Background. After nine months of review, including ten public hearings and five deliberation sessions, the board granted the special permit. In relevant part, the board found that neighboring properties would not be adversely affected by the project, and that the overall traffic LOS at affected intersections satisfied the standards set forth in the Ordinance and MDR.
Due to the size of the project, Greenfield Investors presented an "Impact Statement" in accordance with the Ordinance and MDR. The impact statement provided a detailed analysis of the predicted effects of the project, including the project's impact on traffic (including LOS at affected intersections), public works, the environment, and the community. The board engaged an engineering and planning consultant, BETA Group, Inc. (BETA), to provide an independent peer review of the "Traffic Impact and Access Study" portion of the impact statement. Greenfield Investors' traffic engineer and expert collaborated with BETA to create an action plan to improve pedestrian and traffic safety, and set aside funds should the project necessitate additional mitigation. At one intersection affected by the project, no mitigation measures were proposed even though the projected LOS fell below the design goal of level "C" or better, missing the design parameter by one second.
The plaintiffs own property abutting the project site. As discussed supra, the plaintiffs filed the present action pursuant to G. L. c. 40A, § 17, claiming that the project's impact on certain intersections would reduce the LOS below MDR standards, and the resulting increase in traffic and noise would reduce their property values. Following a bench trial, the judge affirmed the board's decision. The plaintiffs timely appealed.
Discussion. 1. Construction of the Ordinance and MDR. The plaintiffs urge that Ordinance § 200-7.12(E) ("Criteria for approval of major development") and MDR § 842-4(A)(2) (development impact standards for traffic) together mandate strict compliance with the traffic standards set forth therein before a special permit may be granted. Because the construction of the Ordinance and MDR is a matter of law, our review is de novo with deference to the board's sound interpretation of its own laws. Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 729 (2013).
Because our review is de novo, we need not reach the plaintiffs' argument that the judge mistakenly applied the town of Westford's zoning regulations. See Grady, 465 Mass. at 729. Additionally, we are not persuaded by the plaintiffs' contention that the board believed the MDR traffic standards were mandatory; indeed, its issuance of the special permit, despite the predicted reduction in LOS at a specific intersection falling short of the LOS "C" value by one second, suggests the contrary.
Section 200-7.12(E) provides:
"The [board] may issue a special permit for a major development only after finding that the proposed project will not adversely impact adjacent properties, the neighborhood, the Town, or the environment. The following criteria shall be considered:
Greenfield, Mass., Town of Greenfield Zoning Ordinance § 200-7.12(E) (adopted Oct. 18, 1989, as amended through Oct. 20, 2010). The MDR, in turn, sets forth standards including (as relevant here) § 842-4(A)(2), which provides:. . .
"(3) The standards for evaluating the impacts of a project set forth in the [MDR]." (Emphasis added.)
"The [board] may consider the following standards when reviewing development impacts . . . .
. . .
"The design goal is for all legs of signalized and unsignalized intersections to be at LOS C or better. For intersections currently functioning at LOS C or better, mitigation measures shall be provided to maintain or improve the existing LOS. Where the existing LOS is D,
mitigation measures shall at a minimum, maintain the existing conditions or upgrade the LOS to C or better." (Emphasis added.)Greenfield, Mass., Major Development Review Rules & Regulations for Impact Statements § 842-4(A)(2) (adopted June 17, 1991, as revised June 1, 2006).
We construe the Ordinance and MDR in accordance with the "ordinary and approved usage of the language . . . in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of [the board] may be effectuated." Grady, 465 Mass. at 729, quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006). A statute should be viewed "as a whole," giving effect "to all its provisions, so that no part will be inoperative or superfluous." Wolfe v. Gormally, 440 Mass. 699, 704 (2004), quoting Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998). Where a statute uses apparently conflicting language, we do not "accept the literal meaning of the words . . . without regard for th[e] statute's purpose and history." Wolfe, supra, quoting Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986). Instead, we employ "common sense and sound reason" to present a consistent reading of the law that effectuates its objective. Wolfe, supra, quoting Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976). "Seemingly contradictory provisions of a statute must be harmonized so that the enactment as a whole can effectuate the presumed intent of the [drafters]." Wilson v. Commissioner of Transitional Assistance, 441 Mass. 846, 853 (2004).
In this case, the board interpreted the term "shall" as employed in the MDR traffic subsection as presenting a permissive standard. This construction is supported by examining the regulation as a whole, which enumerates the traffic standard as a "design goal" the board "may" (or even "shall") "consider" when determining the predicted impact of a development project, and whether and what kind of mitigation measures may be appropriate. This interpretation of "shall" as permissive also finds support in case law. See id. at 852-853 ("shall" construed as permissive to effectuate overarching purpose of emergency aid program); Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 276 (1932) ("The word 'shall' as used in statutes, although in its common meaning mandatory, is not of inflexible signification and not infrequently is construed as permissive or directory in order to effectuate a legislative purpose"). See also Zuckerman v. Zoning Bd. of Appeals of Greenfield, 394 Mass. 663, 665-666 (1985) (requirement that board decision "shall be filed within fourteen days" deemed "directory only").
See also Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995) ("Though 'shall' generally means 'must,' legal writers sometimes use, or misuse, 'shall' to mean 'should,' 'will,' or even 'may'"); id., quoting B. Garner, Dictionary of Modern Legal Usage 939 (2d ed. 1995) ("Courts in virtually every English-speaking jurisdiction have held -- by necessity -- that shall means may in some contexts, and vice versa").
Moreover, the board's construction is supported by the stated purpose of the major development review: "to identify and attempt to mitigate potential negative impacts" of large-scale development. Ordinance § 200-7.12(A). In particular, the board is to consider the traffic impact of a proposed development, along with other delineated factors and mitigation measures, in determining whether there will be an adverse effect on neighboring properties, the town, or the environment. See Ordinance § 200-7.12(E). See also MDR § 842-1 ("The purpose of a Major Development impact statement is to provide the [board] with sufficient information to conduct a detailed review of uses that have the potential for impact to the environment, abutting properties, Town services, traffic patterns, or the public health and safety for the purpose of mitigation"). Whatever ambiguity may arise from the use of the term "shall" in the context of an enumerated list of standards that the board may/shall "consider," the board's resolution -- such that no one factor (here traffic standards) is dispositive -- is supported. See Grady, 465 Mass. at 729.
2. Judge's decision. The plaintiffs next challenge the judge's decision to affirm the board's decision despite his finding that, at one intersection, the standard under MDR § 842-4(A)(2) had not been met. With regard to the application of the Ordinance to the facts, we are "highly deferential" to the board's decision even if the facts as found by the judge would support a contrary conclusion. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374, 383 (2009), quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 74 (2003).
The plaintiffs do not appear to challenge the judge's factual findings as clearly erroneous. Grady, 465 Mass. at 728-729.
Based on the evidence, the judge concluded that the expected LOS reduction as a result of the project was "de minimus" -- resulting in a delay exceeding the goal set forth in the MDR by only one second. The plaintiffs' argument that this required rejection of the special permit depends on the position (rejected, supra) that the traffic standards are mandatory. The plaintiffs also contend that the judge erred in not crediting their expert's testimony that the mitigation measures proposed by the defendants were inadequate to restore (predicted) degraded levels of service at other affected intersections to LOS C or better. This contention, too, depends on the rejected proposition that the traffic standards are mandatory.
Moreover, the plaintiffs' argument that the judge failed to properly weigh or credit their expert's testimony does not rise to clear error. See Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 310 (1981) ("The credibility of witnesses . . . is a preserve of the trial judge upon which an appellate court treads with great reluctance"). See also Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). The judge specifically credited the testimony of the defendants' experts, who opined that the traffic standards were either met, mitigated, or nominal.
3. Adverse impact. The plaintiffs finally suggest that the judge's finding of "credible evidence . . . that [the plaintiffs] would actually suffer an adverse impact" as a result of the project requires denial of the special permit. This interpretation miscasts the import of the judge's finding, which relates to the question whether the plaintiffs have standing to challenge the board's decision. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721-723 (1996) (standing requires that plaintiffs "put forth credible evidence to substantiate . . . allegations" of harm). This is distinct from a decision on the merits of the plaintiffs' claim. See id. (standing "does not require that the factfinder ultimately find a plaintiff's allegations meritorious").
To the extent the plaintiffs' other arguments have not been explicitly addressed, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Green, C.J., Milkey & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 14, 2020.