JAMES E. MORSE v. ZONING BOARD OF APPEALS OF WELLESLEY & Others. ( 2023 )

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1
JAMES E. MORSE
vs.
ZONING BOARD OF APPEALS OF WELLESLEY & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
James Morse appeals from a Land Court judgment affirming on
summary judgment the decision of the Zoning Board of Appeals of
Wellesley (board) to grant site plan approval for a major
construction project at a retail site, a use permitted as of
right. The approval allows the operator of the site to raze a
two-family home, expand a parking lot, and relocate one of the
site's driveways. The plaintiff objects only to the portion of
the plan that authorizes moving the entry to the site closer to
his home. We affirm.
1 Gravestar, Inc.; TA Wellesley, LLC; and TA Wellesley State
Street, LLC. For consistency, we continue to refer to the
property owner as "Gravestar" although TA Wellesley, LLC and TA
Wellesley State Street, LLC acquired the property at issue and,
by order of this Court, were allowed to be substituted for the
original owner, Gravestar, Inc.
Background. "We summarize the findings set forth in the
order on the [defendant's] . . . motion[] for summary judgment,
supplemented by other uncontroverted facts in the summary
judgment record, . . . and viewing the evidence in the light
most favorable to the party against whom summary judgment was
entered" -- here, Morse (quotations omitted). Williams v. Board
of Appeals of Norwell, 490 Mass. 684, 685 (2022). The site
consists of several contiguous lots and contains a Whole Foods
Market, a bank, a dry cleaner, and a mattress seller. A corner
lot, the site is bounded by Washington St. to the west and State
St. to the south. The site currently has two driveways. Access
to the site from Washington St. is by a restricted right-turn in
and right-turn out driveway with no traffic signal. Full access
to the site, i.e., ingress and egress in both directions, is via
a three-lane, T intersection on State St., approximately 250
feet east of Washington St., also with no signal. During peak
hours traffic queues extend from a traffic light at Washington
and State Sts. past the State St. entrance and some drivers
taking a left from the parking lot "have to nose through the
traffic queue to see if it is safe to make the turn."
The plaintiff lives on the eastern corner of State and
Atwood Sts. Atwood St. terminates at State St. approximately
100 feet east of the current State Street entrance to the site.
Currently, a driver seeking to get to the site from Atwood St.
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would take a left turn onto State St. and a quick jog right into
the site's driveway.
On June 11, 2019, Gravestar applied to the board for site
plan approval as a major construction project under § 16A of the
Wellesley zoning bylaw. The application sought permission to
move the State St. driveway to a location across from Atwood
St., to create a slightly offset four-way intersection and
eliminate the three-way intersection at the existing State St.
driveway. The new driveway would be located diagonally across
from Morse's property. A traffic study procured by Gravestar
recommended the move. The judge noted that two experts
(Gravestar's and one retained by the board to peer review
Gravestar's expert's traffic assessment and opinions) indicated
that standard engineering practice encourages the design of a
four-way intersection rather than two offset three-way
intersections. The parties agree that "[t]he proposed four-way
intersection improves the left-turn sight lines out of the Whole
Foods driveway during peak traffic times . . . and . . .
eliminates the quick jog maneuver required to travel between
Atwood Street [and] the parking lot."
Before the board, neighbors objected, arguing that traffic
would increase on Atwood Street and that a four-way intersection
would be less safe than the two existing three-way
intersections. In approving the proposed site plan, the board
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reasoned that, even accepting that this was a valid safety
concern, "safety of the proposed relocated four-way driveway is
impacted by more than simply a single variable. The traffic
professionals considered five different variables in conjunction
with the relocation of the driveway and concluded that the
proposed driveway relocation is an improvement over the existing
conditions." The board accepted that view. The plaintiff did
not dispute this traffic study.
The plaintiff appealed the decision to grant the permit to
the Land Court pursuant to G. L. c. 40A, § 17. Gravestar filed
motions to dismiss and for summary judgment, contending that the
plaintiff lacked standing to pursue his appeal and that in any
event, Gravestar was entitled to judgment as a matter of law.
The Land Court judge concluded that the plaintiff did not enjoy
a presumption of standing because his property is diagonally,
rather than directly, across the street from the site. In
addition, she found that the plaintiff had failed to meet his
burden of demonstrating with credible evidence an injury
sufficient to sustain standing.
On the merits, the judge reasoned that "no material change
in operations [was] anticipated at the reconfigured Site
entrance," and, even accepting that the plaintiff "will be
affected by increased conflict points, increased delays, and a
decreased LOS [level of service], [the] unrebutted evidence is
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that those impacts are negligible" because "delays at the
reconfigured Site entrance will increase by no more than six
seconds" and the approach to the site "will continue to operate
below capacity" (quotations omitted). Reasoning that the
unrebutted summary judgment materials submitted by Gravestar's
and the board's experts adequately supported the board's
decision, the judge concluded that Gravestar was entitled to
summary judgment.
Discussion. Before we turn to the merits, we note that our
review has been hampered by the plaintiff's brief, which is
utterly devoid of citation to applicable case law. Our rules
require that the argument section of an appellate brief contain
the appellant's contentions, the reasons therefor, citations to
the authorities and parts of the record on which the appellant
relies, and a concise statement of the applicable standard of
review for each issue. See Mass. R. A. P. 16 (a) (9) (A) & (B),
as appearing in 481 Mass. 1628 (2019). "Although some leniency
is appropriate in determining whether pro se litigants have
complied with rules of procedure, the rules nevertheless bind
pro se litigants as all other litigants." Brown v. Chicopee
Fire Fighters Ass'n, Local 1710, IAFF, 408 Mass. 1003, 1004 n.4
(1990). Despite these flaws, in an exercise of our discretion,
and with an eye toward the efficient resolution of this dispute,
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we address the merits of the plaintiff's arguments as best we
can understand them.2
1. Standard of review. "The allowance of a motion for
summary judgment is appropriate where there are no genuine
issues of material fact in dispute and the moving party is
entitled to judgment as a matter of law" (quotation omitted).
Williams, 490 Mass. at 689. "We review a decision on a motion
for summary judgment de novo" (quotation omitted). Id. As the
moving party, Gravestar had "the burden of demonstrating
affirmatively the absence of a genuine issue of material fact on
every relevant issue, regardless of who would have the burden on
that issue at trial." Khalsa v. Sovereign Bank, N.A., 88 Mass.
App. Ct. 824, 829 (2016), quoting Arcidi v. National Ass'n of
Gov't Employees, Inc., 447 Mass. 616, 619 (2006). But, faced
with a well-supported motion for summary judgment, it became
Morse's "burden, pursuant to Mass. R. Civ. P. 56 (e), 365 Mass.
825 (1974), to designate specific facts showing that there is a
genuine issue for trial" (quotations omitted). Benson v.
Massachusetts Gen. Hosp., 49 Mass. App. Ct. 530, 531 (2000).
2 We do not dwell on the plaintiff's standing because even
assuming the plaintiff has standing, we agree that summary
judgment was correctly granted on the merits. See Green v.
Zoning Bd. of Appeals of Southborough, 96 Mass. App. Ct. 126,
129 (2019). Cf. Mostyn v. Department of Envtl. Protection, 83
Mass. App. Ct. 788, 792 (2013).
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2. Merits. "Review of a board's decision . . . pursuant
to G. L. c. 40A, § 17, involves a 'peculiar' combination of de
novo and deferential analyses. Although fact finding . . . is
de novo, a judge must review with deference legal conclusions
within the authority of the board" (citation and quotation
omitted). Wendy's Old Fashioned Hamburgers of N.Y., Inc. v.
Board of Appeal of Billerica, 454 Mass. 374, 381 (2009)
(Wendy's). "If the board's decision is supported by the facts
found by the judge, it 'may be disturbed only if it is based on
a legally untenable ground, or is unreasonable, whimsical,
capricious or arbitrary.'" Fish v. Accidental Auto Body, Inc.,
95 Mass. App. Ct. 355, 362 (2019), quoting Bateman v. Board of
Appeals of Georgetown, 56 Mass. App. Ct. 236, 242 (2002).
The parties agreed that the "proposed parking lot expansion
is an allowed use" permitted as of right "and meets the [t]own's
dimensional zoning requirements." The fact that the use was
permitted as of right was significant in establishing the scope
of the board's review. "Site plan review of uses that are
permitted as of right involves 'the regulation of a use and not
its outright prohibition' and the 'scope of review is . . .
limited to imposing reasonable terms and conditions on the
proposed use.'" Valley Green Grow, Inc. v. Charlton, 99 Mass.
App. Ct. 670, 686 (2021), quoting Dufault v. Millennium Power
Partners, L.P., 49 Mass. App. Ct. 137, 139 (2000). A site plan
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application may be denied outright only where, after careful
factual analysis, a "problem is so intractable as to admit of no
reasonable solution." Muldoon v. Planning Bd. of Marblehead, 72
Mass. App. Ct. 372, 376 (2008). See Prudential Ins. Co. of Am.
v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 282-283
(1986) (Prudential).
Here, the judge thoroughly reviewed the materials submitted
on summary judgment and independently concluded that (1) the
plaintiff's summary judgment materials did not raise any genuine
issues of material fact and (2) that the undisputed facts
supported the board's decision to approve the proposed site
plan.
The fact that the proposed plan increases the number of
contact points at the Atwood St. intersection and creates
marginally longer delays does not raise a genuine issue of
material fact requiring a trial on the factual basis for the
board's decision. The unrefuted traffic studies showed that the
Atwood St./State St. intersection would continue to function at
an acceptable level, with slight delays. Importantly, the
plaintiff's expert's submissions do not support the plaintiff's
assertion that traffic would block his driveway, and thus failed
to raise a factual dispute on that point, the main one advanced
by the plaintiff on appeal. See Butler v. Waltham, 63 Mass.
App. Ct. 435, 442 (2005). To the extent the reconfigured site
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entrances would "increase delays" on the street in front of the
plaintiff's house, as the plaintiff's expert stated in his
affidavit, this assertion does not create an intractable problem
rendering the board's approval of the site plan unreasonable,
arbitrary, or capricious. See Wendy's, 454 Mass. at 382;
Muldoon, 72 Mass. App. Ct. at 376.
None of the plaintiff's other arguments disturb our settled
conviction that the judge properly assessed the applicable legal
framework. The plaintiff's contention that the board should
have applied certain special permit criteria contained in § 25D
of the bylaw is belied by the framework of Gravestar's petition.
Gravestar sought a site plan review under § 16A of the zoning
bylaws, and, absent an explanation from the plaintiff about why
the § 25D special use permit standards should apply, we see no
error of law in the board's failure to apply them. "It has been
settled since the decision in SCIT, Inc. v. Planning Bd. of
Braintree, 19 Mass. App. Ct. 101 (1984), that a use allowed as
of right cannot be made subject to the grant of a special permit
inasmuch as the concepts of a use as of right and a use
dependent on discretion are mutually exclusive." Prudential, 23
Mass. App. Ct. at 281.
We are equally unconvinced by the plaintiff's claim that
§ 21 of the bylaw, which requires that driveways "be located so
as to minimize conflict with traffic on public streets and where
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good visibility and sight distances are available to observe
approaching pedestrian and vehicular traffic[,]" requires
reversal of the board's decision. Even if § 21 applied to site
plan review, the plaintiff's expert's affidavit does not assert
visibility or sight distance concerns.3 The plaintiff's expert
generally opined that "[t]he proposed driveway relocation is a
matter of preference, or opinion, rather than being an
engineering requirement." That equivocal statement did not
create a genuine issue of material fact, where there is no
3 While the plaintiff now expresses dissatisfaction with his
lawyer's performance at the motion hearing, the record does not
reflect, and the plaintiff does not contend, that the judge was
made aware of any limitations in the attorney's representation
at the summary judgment hearing, nor that the plaintiff
requested to be heard. Since the plaintiff was represented by
counsel, it would have been quite unusual for him to participate
actively in the hearing, and there is no suggestion here that
the plaintiff made his attorney aware that he wanted to
participate. In any event, the general rule is that there is no
right to the effective assistance of counsel in civil cases.
See Commonwealth v. Patton, 458 Mass. 119, 124 (2010).
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requirement that the defendant identify an engineering
requirement to relocate the driveway.
The plaintiff has not shown the board's conclusion to be
legally untenable, unreasonable, arbitrary, or capricious. See
Wendy's, 454 Mass. at 381-382. We discern no error in the
decision granting summary judgment to the defendants.
Judgment affirmed.
By the Court (Sullivan,
Massing, & Hershfang, JJ.4),
Clerk
Entered: March 7, 2023.
4 The panelists are listed in order of seniority.
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