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

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.

2
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

3
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

4
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,

5
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).

6
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

7
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

8
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

9
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).

10
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.

11