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15-P-1321                                          Appeals Court

   ROGER AIELLO, trustee,1   vs. PLANNING BOARD OF BRAINTREE &
                              others.2


                           No. 15-P-1321.

         Suffolk.     October 20, 2016. - April 14, 2017.

              Present:   Meade, Milkey, & Kinder, JJ.


Practice, Civil, Zoning appeal, Standing.   Zoning, Appeal,
     Person aggrieved, By-law.


     Civil action commenced in the Land Court Department on
October 14, 2009.

    The case was heard by Karyn F. Scheier, J.


     Brian K. Bowen for the plaintiff.
     Jason W. Morgan for McCourt Construction & another.
     Carolyn M. Murray (Judy A. Levenson also present) for
planning board of Braintree.


    MEADE, J.    In this 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


    1
        Of the Roger E. Aiello Revocable Trust.
    2
        McCourt Construction and RMT Braintree, LLC.
                                                                   2


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.

    1.   Background.    a.   Aiello's property.   The 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.
                                                                     3


     b.   The locus.    The locus, now owned by RMT Braintree, LLC,

and occupied by McCourt Construction,3 contains approximately

nine acres and is located in both the commercial and watershed

protection districts.4    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 property.5

     Access 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




     3
       We refer to RMT Braintree, LLC, and McCourt Construction
collectively as McCourt.
     4
       Issues related to the watershed protection district have
not been pursued on appeal, and we consider them waived.
     5
       The relevant zoning by-law requires a minimum of twenty
feet for side setbacks.
                                                                     4


traditionally has run between the row of cars along the building

and the northern line of the parking area.

     c.   The buffer zone.   There 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.6    The by-

law'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-




     6
       The buffer zone by-law provides in part that no building
in a commercial district shall be erected or placed within 100
feet of any residential zone. By-law § 135702(B)(1)(a) (2003).
Section 135-702(B)(11) of the by-law further substantially
restricts use of the buffer zone by providing as follows: "Only
necessary driveways or interior drives shall be located across a
required transition area. No structure, parking area, play
area, interior street or driveway may be located in this
transition area. A transition area may be used for passive
recreation; it may contain pedestrian, bike or equestrian
trails, provided they do not reduce the effectiveness of the
transition area as a year-round visual screen. No other uses
are permitted in transition areas."
                                                                   5


law, with remarkable particularity, guides in great detail the

composition of the required landscape buffer.7

     A 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."   Ibid.

     7
       A subsection of the by-law entitled "[c]omposition of
buffer zones" states that "[a] buffer zone shall consist of a
landscaped strip and may include fences, walls or berms which
shall serve to provide an effective year-round visual screen at
the time of installation." By-law § 135-702(B)(2). The by-law
goes on to lay out how the vegetated "visual screen" is to be
constructed; for example, it specifies the type, width, height,
and spacing of the plant materials that must be used. By-law
§ 135-702(B)(3), (5)-(7). It also makes clear that while walls
and fences can be used "to supplement the required planting to
provide an effective visual screen," they "may not be
substituted for plant materials to reduce the required width of
a transition and screening area." By-law § 135-702(B)(9).
                                                                    6


     d.   1994 special permit.   The 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.8   Condition 18 restricted the use of the addition to

storage only and condition 31 prohibited permanent outdoor

storage of materials or equipment.9   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




     8
       Prior to the board's consideration of the special permit
application, in January, 1994, the zoning board of appeals of
Braintree granted Ainslie a variance from the 100-foot buffer
zone requirement to alter the existing nonconforming structure
(due to reduced side-yard setback) by adding a 3,750 square foot
addition for the purpose of storing material and equipment. The
addition was to encroach northerly twenty-eight feet into the
buffer zone, the same distance as the rest of the building. The
1994 variance decision noted that the addition was to be used
for storage of materials and equipment, would be enclosed, and
should have no adverse effect on the resident to the north.
     9
       Prior to the 1994 addition, Ainslie had maintained two
twenty-foot storage containers for aluminum and steel raw
materials outside. In addition, some assembly occurred outside
in the area of the addition.
                                                                     7


no appeal from the 1994 variance (see note 8, supra) or special

permit.

     e.   Ainslie's post-1994 use.   Ainslie, 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.10

     f.   McCourt's use.   McCourt, 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



     10
       Aiello testified that Ainslie never bothered him and he
never bothered Ainslie. Eric Sandquist, the president of
Ainslie, did not recall Aiello or anyone else making any
complaints.
                                                                      8


vehicles,11 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.12

     g.   2009 modification.   In 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

     11
       McCourt represented to the board that it operates four
"track dozers," eight "track excavators," three "vibrator
rollers," and one "off-road water tanker." In addition, McCourt
owns twenty-seven pieces of "medium-sized equipment," including
two "small track excavators," six "wheel excavators," ten "wheel
loader backhoes," one "wheeled crane," seven "wheeled loaders,"
and one "wheeled motor grader."
     12
       The judge neither credited nor discredited Aiello's
testimony, but we infer from her ultimate findings that she did
not perceive conditions to be as "brutal" as Aiello described.
                                                                   9


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.13   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

     13
       Evidence of enforcement actions and settlements related
to these alleged violations was precluded. The judge found,
however, that McCourt was cited and fined by the building
inspector for violating the 1994 special permit and that related
enforcement actions resulted in a settlement agreement entered
into by McCourt and the mayor of Braintree in February of 2009,
while McCourt's 2008 application to modify the 1994 special
permit was pending. McCourt did not admit liability but agreed
to pay a $15,000 fine and agreed to change the principal place
of garaging its vehicles to Braintree so that the town would
benefit from the excise taxes. The town's direct financial
stake in allowing McCourt to operate its business on the locus,
particularly where the enforcement proceedings involved the very
same uses allowed by the special permit, is the basis for
Aiello's bias claim discussed below.
                                                                  10


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.

    Although 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 site at any given time with two in the

building being serviced and three pieces stored outside.

    The board, considering the modification request pursuant to

the special permit provisions in the watershed protection

district section of the by-law, § 135-609(F)(2), and the buffer

zone provision, § 135-702(B)(12), allowed the request for

modification on September 16, 2009.   With regard to the buffer

zone requirements, the board found that "the residentially zoned

abutting land to the north is used for single/multi family
                                                                  11


residential, catering, equipment storage and semi-agricultural

uses, unlike the rest of the Residential A and B Zoned

neighborhood that is predominantly single family dwellings."

The board characterized the uses proposed by McCourt as

"contractor's yard, light manufacturing, non-residential garage,

and automotive repair," and noted that they are "by-right" uses

in the commercial district.   Removal of the restriction is

justified, the board reasoned, because the "owner/operator does

not have the interior storage needs of the previous tenant."

The board found that the exterior storage needs were "minimal"

within the buffer zone and would "be restricted to the

designated areas within the existing pavement/parking areas."

In addition, "due to the location of the previously approved

parking layout," the board found that "a majority of the site

will be screened with . . . fencing [and some areas] will be

further landscaped with infill plantings."   The board further

found that the predominate use of the buffer zone remained

"parking, circulation and interior commercial space," which have

"exist[ed] on site in some form since the 1980's."   The board

found that "the usage of the building as modified is a

continuation of the by-right uses that exist on site today,

pursuant to the Zoning Board of Appeals April 2004 Decision,"14


     14
       In 2004, the board of appeals granted approval pursuant
to G. L. c. 40A, § 6, to allow the installation of interior
                                                                   12


and "[t]he operation of vehicles, equipment, devices and tools

will be conducted in accordance with Article XI [of the by-law

-- environmental performance standards including emissions and

noise controls --] and shall not exceed [the noise level] as

noted within the Zoning Bylaw."   The board found that McCourt's

"participation in an emission reduction program resulted in the

installation of diesel oxidation catalysts or diesel particulate

filters in 61 pieces of their equipment to ensure cleaner

vehicle emissions," and "[t]he measures taken meet and/or exceed

the contract requirements for several state agencies."    Finally,

the board concluded that the potential for any nuisance is

minimal.

    The board deleted condition 18 and replaced it with

conditions 18a-c, which allowed McCourt to use the entire

building, including the 1994 addition, for all "uses allowed by

right within the commercial zoning district," but imposed a

condition that the overhead doors must be closed if a use

generates noise that can be heard outside of the building walls.

In addition, conditions 18b and c prohibit exterior repair,



partitions inside the structure to divide it into five tenant
spaces with overhead doors on the north side of the building,
facing the Aiello property. The board of appeals "found that
the proposal [would] not be substantially more detrimental to
the neighborhood because the alterations will not alter the
footprint of the building." Aiello did not appeal from this
decision. Nothing in the 2004 approval impacted the conditions
contained in the 1994 special permit.
                                                                  13


maintenance, and washing of vehicles or equipment.   The board

also deleted condition 31 and replaced it with language that

allowed exterior storage of material and equipment in a 2,080

square foot area, "five dedicated spaces for oversized wheel and

track mounted equipment," and a 989 square foot area for small

equipment and trailer parking.

    On appeal to the Land Court for de novo review, the judge

took a view, conducted a seven-day trial, and concluded that

Aiello lacked standing to appeal.   She reasoned that the noise

and odors coming from the locus are 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.   She concluded that Aiello was unable to

credibly distinguish between harm that flows from the changes

allowed by the 2009 modification and harm that flows from uses

allowed prior to its issuance.   The judge also concluded that

the condition of closing the garage doors and prohibition of

washing vehicles, not previously in effect, should decrease

noise from the premodification uses.   With regard to visual

impact, the judge concluded that Aiello lacked standing to

appeal the board's decision because "the difference in visual

impact before and after the 2009 Modification is negligible, and

therefore, the harm, if any, is de minimis."
                                                                   14


     Despite her conclusion that Aiello lacked standing, the

judge nonetheless reached the merits and concluded that the

screening proposed by McCourt, an eight-foot-tall opaque fence

and plantings in some places,15 did not satisfy the by-law

requirements.    She found that the higher elevation of Aiello's

property provides visibility of the parking areas and commercial

structure on the locus from several vantage points and that the

fence provides effective screening only for people standing

within a few yards of it.    The judge found that if Aiello had

standing, she "would have remanded the buffer zone issue to the

board for further consideration of screening based on the facts

found at trial."    She rejected McCourt's argument that the

required vegetative screen could be waived because of "the

difficulty of growing trees and shrubs in a narrow, sloped area"

of the locus, finding, based on the testimony of Aiello's

expert, that "there are methods through which [McCourt] could

provide screening with vegetation and/or a wall that functions

as a raised bed for plantings which would provide screening

compliant with the      By-law without 'reduc[ing] the useable

area of [the locus] so as to preclude a reasonable use of the

lot.'"    In all other regards, the judge stated she would have

affirmed on the merits.

     15
       Our review of the site plan suggests plantings were
required at the eastern end of the locus. It does not appear
that plantings were required along the boundary with Aiello.
                                                                      15


     Discussion.   1.    Standing.   Any person aggrieved by a

decision of a zoning board granting a special permit has

standing to appeal from that decision.      G. L. c. 40A, § 17.    "A

plaintiff qualifies as a 'person aggrieved' upon a showing that

his or her legal rights will be infringed by the board's

action."   Butler v. Waltham, 63 Mass. App. Ct. 435, 440 (2005).

"Of particular importance, the right or interest asserted by a

plaintiff claiming aggrievement must be one that the Zoning Act

is intended to protect, either explicitly or implicitly."        81

Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461

Mass. 692, 700 (2012).     Here, the judge found that "the various

provisions of the By-laws, read together, . . . instruct that

visual impact is an interest protected under the By-laws which

may be used as a ground to support standing."      McCourt does not

argue otherwise on appeal, and we agree that the regulatory

scheme makes it clear that visual impact is an interest

protected by the by-law.    Nothing in Kenner v. Zoning Bd. of

Appeals of Chatham, 459 Mass. 115 (2011), is to the contrary.16




     16
       In order to have standing to appeal from the board's
decision, Aiello need satisfy his burden as to only one
interest. 81 Spooner Rd., LLC, 461 Mass. at 704 n.16. We
focus, as the judge did, on the visual impact of the board's
decision but note that it is difficult in this context to
separate the visual impact from the accompanying auditory impact
inherent in the use of the locus as a contractor's yard. We
reserve for later in the opinion comment on the auditory impact.
                                                                  16


    That Aiello has articulated an interest or interests

protected under the by-law does not end the inquiry.   "Whether a

party is 'aggrieved' is a matter of degree and the variety of

circumstances which may arise seems to call for the exercise of

discretion rather than the imposition of an inflexible rule."

Kenner, supra at 119, quoting from Paulding v. Bruins, 18 Mass.

App. Ct. 707, 709 (1984).   Abutters enjoy a presumption of

standing but "an adverse party can challenge an abutter's

presumption of standing by offering evidence 'warranting a

finding contrary to the presumed fact.'"   81 Spooner Rd., LLC,

461 Mass. at 700.   "[W]here an abutter has alleged harm to an

interest protected by the zoning laws, a defendant can rebut the

presumption of standing by coming forward with credible

affirmative evidence that refutes the presumption" (emphasis in

original), for example, with expert evidence "establishing that

an abutter's allegations of harm are unfounded or de minimis."

Id. at 702.   "The adverse effect on a plaintiff must be

substantial enough to constitute actual aggrievement such that

there can be no question that the plaintiff should be afforded

the opportunity to seek a remedy.   Put slightly differently, the

analysis is whether the plaintiffs have put forth credible

evidence to show that they will be injured or harmed by proposed

changes to an abutting property, not whether they simply will be

'impacted' by such changes."   Picard v. Zoning Bd. of Appeals of
                                                                   17


Westminster, 474 Mass. 570, 573 (2016), quoting from Kenner, 459

Mass. at 122.   A judge's finding on standing will not be

disturbed unless clearly erroneous.   Kenner, 459 Mass. at 119.

    Here, the judge concluded that McCourt rebutted Aiello's

presumption of standing and, as noted above, found that Aiello

has failed to overcome McCourt's challenge to his allegation of

harm because the visual impact of the 2009 modification,

compared to premodification impact, is de minimis.   The judge's

focus on the incremental harm between the use after the 1994

special permit and the use after removal of the conditions was

misplaced.   We said in Chambers v. Building Inspector of

Peabody, 40 Mass. App. Ct. 762, 768 (1996), that to show

standing to challenge a zoning decision, a plaintiff should not

be "required to show evidence of harm to [his] property or legal

interests caused by the modifications to the site plan that

exceeded the over-all harm stemming from the project as

originally approved."   Such a requirement is "inconsistent with

the principle that the term '"person aggrieved" should not be

construed narrowly.'"   Ibid., quoting from Marashlian v. Zoning

Bd. of Appeals of Newburyport, 421 Mass. 719, 722 (1996).     Thus,

analysis of whether the board's decision will have only a de

minimis impact on Aiello's property is not limited to harm

caused by the modifications that exceeded the over-all harm

stemming from the project as originally approved in 1994.
                                                                   18


    "[W]e think that the board's power to remove the conditions

is most appropriately analyzed in terms of the nature and effect

of the condition itself and in light of the statutory concerns

relevant to the grant" of a buffer zone special permit.

Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass. App. Ct.

710, 714-715 (1981) (discussing modification of variance).

Here, the conditions imposed in the 1994 special permit

ameliorated the impacts from further encroachment into the

buffer zone by a nearly 4,000 square foot addition to the

already nonconforming building.   Aiello benefited because

exterior storage was moved inside the new addition and the

addition was limited to storage only with the added protection

of a prohibition of exterior storage.   Now, McCourt proposes to

both use the encroaching addition for active servicing of

vehicles and equipment rather than storage, and add exterior

storage of vehicles and equipment into the buffer.

    We have recognized 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."     Sheppard

v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8, 12

(2009), quoting from Dwyer v. Gallo, 73 Mass. App. Ct. 292, 297

(2008).   While the density provisions of the by-law are not at
                                                                     19


issue here and no new structures are proposed, the buffer zone

provisions in the by-law provide similar protections from

potentially harmful uses as the density provisions considered in

Sheppard and Dwyer.     The buffer zone requirements are intended

to protect the residential abutter from the sights and sounds of

abutting commercial uses.     Here, none of the proposed storage

uses, the parking of oversized vehicles, or the operation of a

garage is a use permitted as of right in the buffer zone.      The

building inspector's comments on the proposed modification best

illustrate Aiello's potential harm from the removal of the

conditions:   "it should be noted that [the locus] already enjoys

a reduced physical separation between [the] industrial operation

and its residential neighbors from what is required under Town

Zoning Bylaws . . . .     The request by the applicant to store two

large pieces of equipment in what is described as 'oversized

spaces' . . . would possibly . . . be problematic to the

residential abutters.    Aside from the immediacy of this location

to residential property in terms of the aesthetic impact for

which the buffer zone was intended, the related exhaust and

noise that invariably accompanies the movement and placement of

this apparatus could be an additional burden to the abutters and

quite possibly result in a violation of environmental standards

under Article XI of the Town Zoning Bylaws."    The building

inspector also articulated similar concerns about the noise
                                                                   20


associated with the change in use of the 1994 addition and the

noise, exhaust, and aesthetics associated with the proposed

equipment storage.   He seemingly recommended at least imposing

the condition that the overhead doors be closed.

     In contrast to other proposed special permits, where a

board and a reviewing judge must do their best to predict

impacts of proposed changes based on the evidence, here McCourt

admitted in its application that it had been using the property

in a manner that violated the two conditions it seeks to have

removed.17   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.   The building inspector's

concerns, though articulated as possibilities, became reality

according to Aiello.

      While it is unclear how much of Aiello's testimony the

judge credited, she did find that Aiello will be able to see the

many pieces of equipment stored and oversized vehicles parked


     17
       McCourt cites Dowd v. Board of Appeals of Dover, 5 Mass.
App. Ct. 148 (1977), for the broad proposition that
consideration of McCourt's prior "unlawful" activities is not
permitted in reaching a decision on a zoning request. However,
Dowd holds simply that a board may not refuse, because of an
applicant's past history of zoning infractions, to consider
whether a use may be appropriately conditioned to become a
permitted use. Id. at 155-157. Dowd does not require a board
or court to ignore known impacts of "unlawful" activities
previously conducted on the property when considering whether to
authorize those same activities by way of a discretionary
special permit.
                                                                  21


outside from many points on his property and that the fence

required by the special permit is inadequate to buffer the view.

As Aiello claims, the judge's findings satisfy Aiello's burden

to "show that the zoning relief granted adversely affected [him]

directly" and that his harm is more than de minimis, given the

stated concerns of the by-law.   See Sheppard v. Zoning Bd. of

Appeal of Boston, 81 Mass. App. Ct. 394, 397 n.6 (2012)

(distinguishing finding of no standing in Kenner, supra, where

allegation was that seven-foot-taller home would affect

plaintiff's view of ocean and visual character of neighborhood,

from allegation of harm from replacing prior nonconforming

structure with new, larger home in crowded urban neighborhood).

See also Martin v. Corporation of Presiding Bishop of Church of

Jesus Christ of Latter-Day Saints, 434 Mass. 141, 145-147 (2001)

(abutter has standing to appeal zoning decision where judge

found towering steeple would be visible from most, if not all,

of abutter's property).   We conclude that this case is closer to

Sheppard and Martin than Kenner.

    While the visual impact of the board's decision is

sufficient in and of itself to confer standing, it is difficult

to consider it separately from the noise associated with the

unloading of metal plates, buckets, and barriers, and movement

of construction vehicles and equipment associated with use of

the buffer as a contractor's yard.   As we construe the
                                                                   22


regulations, noise impact is also an interest sought to be

protected by the buffer zone requirements and site plan review.18

The judge found that "noise and odors . . . do and will emanate

from the commercial uses on [the l]ocus."   Her conclusion that

the noise impacts do not confer standing is based in part on her

misapprehension that her review was limited to the incremental

difference between pre- and postmodification changes.   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 is more than de minimis.   We conclude

that the noise impact contributes to Aiello's standing to appeal

from the board's decision removing the conditions contained in

the 1994 special permit.   The judge's finding that Aiello lacks

standing was error.


     18
       We do not agree with the judge's rationale for concluding
that Aiello's complaints of noise and odors do not give him
standing. The judge found that Aiello testified that noise and
odors were present since at least 2003 when McCourt first moved
onto the locus and concluded that they, therefore, cannot be
tied to the 2009 modification and form the basis of his
aggrievement. That the postmodification uses will be
substantially the same as McCourt's admitted initial,
unauthorized use of the locus cannot refute Aiello's claims of
harm. Moreover, while the condition that the overhead doors be
closed should help, most of Aiello's complaints stemmed from the
use of the exterior portions of the buffer zone. Exterior
washing and repair of vehicles are not uses allowed in the
buffer zone under the by-law; thus, the condition prohibiting
those uses is of no added benefit to Aiello. Finally, that
noise from other nearby commercial properties reaches Aiello's
property militates in favor of a more strictly enforced buffer
zone, not the relaxation of the buffer zone requirements.
                                                                    23


    2.   Merits.    "In exercising its power of review, the court

must find the facts de novo and give no weight to those the

board has found."    Britton v. Zoning Bd. of Appeals of

Gloucester, 59 Mass. App. Ct. 68, 72 (2003).    In reviewing the

local zoning board's denial of a special permit, "the court

determines the content and meaning of statutes and by-laws and

then decides whether the board has chosen from those sources the

proper criteria and standards to use in deciding to grant or

deny the . . . special permit application."    Id. at 73.   "In the

end, the court must affirm the board's decision unless it finds

that denial of the application was 'based on a legally untenable

ground, or [was] unreasonable, whimsical, capricious or

arbitrary.'"   Id. at 72, quoting from MacGibbon v. Board of

Appeals of Duxbury, 356 Mass. 635, 639 (1970).

    a.   Visual impact.    The judge found that the board required

McCourt to

    "install an eight-foot high opaque vinyl fence running
    along the northern boundary line in place of the six-foot
    chain link fence that had been in that location for many
    years. The fence was a replacement for trees, not
    something the Board required in addition to them. Despite
    the eight-foot fence, the higher elevation of the Aiello
    Property provides visibility of the parking areas and the
    structure on the locus from several high vantage points;
    essentially, an individual standing on much of the Aiello
    Property has a view over the fence. The current fencing
    provides effective screening of the parking areas of [the
    locus] only for people standing within a few yards of it on
    the Aiello side."
                                                                   24


    On the basis of expert testimony, the judge concluded that

methods exist through which McCourt could have provided

"screen[ing] with vegetation and/or a wall that functions as a

raised bed for plantings which would provide screening compliant

with the By-laws without reducing the useable area of [the

l]ocus so as to preclude a reasonable use of the lot."    As the

judge concluded, the fencing is 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.    As McCourt does not argue on appeal that the

judge's decision on the merits with regard to visual impact was

wrong, we agree with the judge that the board must reconsider

the allowance of the special permit modification in light of

this decision.    We comment briefly on the other issues raised by

Aiello that may arise on reconsideration.

    b.   Fire lane.    The judge found that the fire chief has the

legal authority to determine where a fire lane should be located

on a site.   527 Code Mass. Regs. § 10.02 (1997).19   The judge

further found that the parties agreed "that the Fire Chief is

the final arbiter over fire safety concerns" and that "the Board

cannot divest the Fire Chief of his authority under the Fire

Regulations."    A memo from the fire chief dated May 27, 2009,


    19
       The "fire regulations" relied on by the judge and the
parties have since been amended.
                                                                     25


required that the fire department have access to the east and

north sides of the building.   The fire chief required that the

lanes be designated, free of obstructions, and maintained

pursuant to 527 Code Mass. Regs. § 10.03(10) (1997).     The judge

further found that the fire chief orally clarified to the town

planner that he wanted the fire lane located directly adjacent

to the structure on the northern side.20

     Contrary to the fire chief's direction that fire lanes abut

the eastern and northern sides of the commercial structure, the

board approved the site plan with a fire lane in the travel lane

of the parking lot, with a row of cars directly abutting the

northern side of the building.   The judge credited the board

chairman's testimony that he learned from a private conversation

with the fire chief that the fire chief had "personal animosity"

toward a McCourt employee.   The judge found that the chairman

credibly testified that he concluded that the fire chief's

requirement "was the result of a personal feud" and not

"legitimate reasoning."   The judge further found that "[t]he

current Fire Chief has not indicated the fire lane must be

adjacent to the Structure or otherwise relocated, nor submitted

anything in writing regarding the approval of the 2009

Modification."   Finally, the judge concluded that the board's

     20
       Placement of the fire lane along the building, the judge
found, "would have required the removal of many existing parking
spaces and installed structures."
                                                                       26


decision was not legally untenable, unreasonable, arbitrary, or

capricious.   We disagree.

    Where the parties agree that the fire chief controls the

location of the fire lane, the board was without legal authority

to approve the site plan with the fire lane in a location

different from that established by the fire chief.       Information

the chairman learned in a private conversation outside the

public hearing cannot justify rejecting the fire chief's

decision.   That the current fire chief has not taken action to

enforce the former fire chief's position is not equivalent to

demonstrating that the board's decision was made on legally

tenable grounds.    The board shall reconsider the location of the

fire lane on the site plan, and in doing so may wish to solicit

the current fire chief's view of the former fire chief's May 27,

2009, determination and subsequent oral communication with the

town planner.

    c.    Bias.   The record established that during some of the

hearings on McCourt's application for modification, but not when

the vote was taken, one of the board members, in his capacity as

a consultant with the Massachusetts Bay Transportation Authority

(MBTA), controlled final payments to McCourt on a contract

McCourt had with the MBTA.    By the time he voted on McCourt's

application, the member no longer had a relationship with the

MBTA.    He testified at trial that he had no personal
                                                                  27


relationship with McCourt, and that he did not disclose the work

relationship because the project had been substantially

completed in 2006 and only final details were outstanding.

While full disclosure would have been the more proper option, we

agree with the judge that there was no evidence of bias.

    Aiello also contends that the board was aware that McCourt

had reached a settlement on the zoning enforcement matters that

obligated McCourt to register certain vehicles and equipment in

Braintree and that approval of the special permit was necessary

for McCourt to do so.   The judge found, however, that the

chairman of the board credibly testified that the settlement was

not discussed by the board and played no role in its decision.

Based as it is on the judge's credibility assessment, we will

not disturb her finding that Aiello failed to show that the

board inappropriately considered the settlement agreement in

deciding whether to grant the modifications.

    Conclusion.   It was error for the judge to conclude that

Aiello lacked standing.   The judgment is vacated, and the matter

is remanded for the entry of an order requiring the board to

reconsider the allowance of McCourt's 2008 application for a

special permit.   We note that the by-law provides that

exceptions from the buffer requirements may be allowed by

special permit where, because of the lot's shape, among other

things, to deny exceptions would prohibit a reasonable use of
                                                                  28


the locus.   The long, narrow shape of the lot historically has

justified limited use of the buffer zone for a portion of the

commercial structure and for employee parking that has enabled

successful commercial use of the locus.   We expect that any

decision by the board on remand will consider whether McCourt

meets the threshold criteria for the proposed additional

exceptions to the buffer requirements.

                                    So ordered.
    MILKEY, J. (concurring).    Relying principally on our

decision in Chambers v. Building Inspector of Peabody, 40 Mass.

App. Ct. 762, 768 (1996), the majority concludes that the

plaintiff (abutter) had standing.   While I wholeheartedly agree

with that conclusion, I write separately to highlight that we

could arrive there by a shorter and surer route.   As explained

below, even if the judge was correct to view her job as

hazarding a "before and after" comparison of the impact of the

board's decision, the judge's own findings demonstrate how the

abutter had standing.

    As the majority accurately observes, in assessing the

adverse visual impact at issue, the judge compared the impact

from the proposed use of the locus to the impact from uses

already allowed by the 1994 special permit.   Based on that

comparison, she found any such additional impact to be

negligible (in the lexicon of the standing case law, "de

minimis").   After all, the judge reasoned, the particular area

in question already long had been used for extensive car and

truck parking, so how would parking heavy equipment there cause

appreciably worse visual impact?

    The majority faults the judge for requiring that the

abutter demonstrate that the modification to the special permit

caused an incremental increase in harm to him.   See ante at ___,

citing Chambers, 40 Mass. App. Ct. at 768.    To my mind, there
                                                                    2


was an independent problem in the point of comparison that the

judge employed.   It is important to keep in mind that the

abutter is challenging the decision made by the planning board

(board), not the actions of the owner of the locus or its

tenant, McCourt Construction (McCourt).    See Butler v. Waltham,

63 Mass. App. Ct. 435, 440 (2005) ("A plaintiff qualifies as a

'person aggrieved' upon a showing that his or her legal rights

will be infringed by the board's action").   The standing

question thus turns on how the board's decision would affect the

abutter, not on whether any proposed changes to the use of the

locus by McCourt would make the attendant visual impact

appreciably worse.   In the context of this case, that

distinction matters.1   Here, as the judge herself expressly

concluded, the board's decision deprived the abutter of

something to which he was entitled under the buffer zone by-law:

an effective visual screen to shield his property from McCourt's

uses.    The deprivation of that mandated mitigation measure

caused the abutter harm, regardless of whether the adverse

     1
       In many cases involving challenges to agency approvals of
proposed development projects, it would not make a difference
whether the focus was on the impact of the project or on the
impact of the agency decision. Therefore, unsurprisingly, some
cases use the shorthand of referring only to the former. See
Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570,
573 (2016) (referring to standing analysis as asking "whether
the plaintiffs have put forth credible evidence to show that
they will be injured or harmed by proposed changes to an
abutting property, not whether they simply will be 'impacted' by
such changes" [quotation omitted]).
                                                                    3


visual impact of McCourt's proposed use was greater than that of

the prior owner.2

     Of course, as a matter of black letter law, "[t]he language

of a bylaw cannot be sufficient in itself to confer standing:

the creation of a protected interest (by statute, ordinance,

bylaw, or otherwise) cannot be conflated with the additional,

individualized requirements that establish standing."     Sweenie

v. A.L. Prime Energy Consultants, 451 Mass. 539, 545 (2008).

Thus, where, as here, plaintiffs are able to demonstrate that

visual interests are protected by a zoning by-law, they

additionally must "produc[e] evidence of the actual visible


     2
       As this case illustrates, the denial of a benefit
expressly conferred upon an identified class itself provides
standing. This principle is perhaps best illustrated in other
contexts. For example, someone who alleged that a government
agency improperly denied her a means-based public benefit for
which she qualified by statute has standing to challenge that
denial, see Goldberg v. Kelly, 397 U.S. 254, 260-263 (1970); it
matters not at all that the denial of the benefit made the
plaintiff no poorer than she had been before. However, the
principle is also recognized in existing zoning case law where
the benefits conferred upon abutters are far less overt than the
one in the case before us. For example, "[a]n abutter has a
well-recognized legal interest in 'preventing further
construction in a district in which existing development is
already more dense than the applicable zoning regulations
allow.'" Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass.
App. Ct. 8, 11 (2009), quoting from Standerwick v. Zoning Bd. of
Appeals of Andover, 447 Mass. 20, 31 (2006). In light of such
interests, "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." Dwyer v. Gallo, 73 Mass. App. Ct.
292, 297 (2008).
                                                                     4


impact on their property."   Ibid.   That threshold requirement is

easily satisfied here, because the judge herself found that the

presence or absence of the mandated visual screen directly

affected the abutter.   Specifically, after viewing the property,

the judge concluded that the limited screening required by the

board did not provide an adequate substitute for the specific

type of vegetative screening mandated by the by-law, explaining

her reasoning as follows:

     "Despite the eight-foot fence [which had been constructed
     by the time of the view], the higher elevation of the
     [abutter's] Property provides visibility of the parking
     area and the Structure on Locus from several high vantage
     points; essentially, an individual standing on much of the
     [abutter's] Property has a view over the fence. The
     current fencing provides effective screening of the parking
     areas of Locus only for people standing within a few yards
     of it on the [abutter's] side."

Thus, the judge's own findings demonstrate that the abutter had

a direct and substantial interest in the board's allowance of

the modification of the special permit without requiring the

specifically-mandated visual screen.3


     3
       In light of the judge's findings with regard to the
inadequacy of the substitute screening, it is evident that the
judge did not mean that she considered the abutter's having to
look at the stored heavy equipment to be inconsequential.
Moreover, if this had been what the judge intended by her de
minimis finding, then this ultimate finding would have been
clearly erroneous. See Sheppard v. Zoning Bd. of Appeal of
Boston, 81 Mass. App. Ct. 394, 403 n.18 (2012) (appellate courts
not bound by ultimate findings that are inconsistent with
subsidiary findings), citing Simon v. Weymouth Agric. &
Industrial Soc., 389 Mass. 146, 151-152 (1983). In addition,
such a ruling would fail for a more fundamental reason: it
                                                                     5


     Nothing in Kenner v. Zoning Bd. of Appeals of Chatham, 459

Mass. 115 (2011), on which McCourt relies, is to the contrary.

The court there concluded that the by-law at issue was not

designed to protect individual homeowners' views, but instead

served to protect only "the visual character of the neighborhood

as a whole" (emphasis in original).   Id. at 121.   The court thus

held that to establish standing, the plaintiffs had to show both

"a particularized harm to the plaintiff[s'] own property and a

detrimental impact on the neighborhood's visual character."

Ibid.4   The context of the case before us could not be more

different.   Far from generally endorsing the protection of the

visual character of neighborhoods, the by-law here mandated that

specific screening measures be taken to protect the views of a

defined group of property owners.



would not have been up to the judge to interject her own
judgment as to whether the screening requirement set forth in
the by-law was worth enforcing. The town's legislative body has
made that judgment, and neither the judge nor the board could
override it. Cf. Wendy's Old Fashioned Hamburgers of N.Y., Inc.
v. Board of Appeal of Billerica, 454 Mass. 374, 382 (2009)
("[a]lthough the judge determines the facts, it is the [local
body's] evaluation of the seriousness of the problem, not the
judge's, which is controlling" [quotation omitted]).
     4
       As to the first, the court in Kenner held that the trial
judge's finding that the slightly taller neighboring structure
would have only a de minimis impact on the plaintiffs' view of
the ocean was not clearly erroneous. 459 Mass. at 123.
Regarding the second, the court ruled that the plaintiffs
supplied no evidence of the visual impacts on the neighborhood
"[a]part from [their] unsubstantiated claims and personal
opinions." Id. at 121.
                                                                   6


    In sum, the judge's own findings demonstrate that the

abutter had a significant and direct stake in challenging the

board's decision.   Therefore, reversal of the judge's ruling on

standing is required without the need to invoke the holding in

Chambers, 40 Mass. App. Ct. at 768.
