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Mc clure v epsilon decision


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Judge Piper has ruled in favor of Epsilon and the Town and entered judgment dismissing the complaint. While the Court found that the plaintiff had standing under G.L. c.40A, s.17 regarding a portion of his claims, in all other and in all substantive respects the Court soundly rejected his arguments. I have attached a copy of the Court’s Decision and the Judgment.

In summary, the thirty-three page Decision rules as follows. Regarding the c.40A, s.17 standing issue, Judge Piper found that while the evidence of the potential impact of the Epsilon Group development on the plaintiff’s residential property was “tepid”, the plaintiff had met the minimum necessary to survive a motion to dismiss on that issue alone. See, Decision, pp. 11-12. Judge Piper, however, noted “that many, if not all, of the other grounds for aggrievement Plaintiff asserts are so unsupported and speculative as to be unworthy of consideration.” Decision, p. 12, n.2.

On the other issues that Judge Piper did consider, he rejected the plaintiff’s claims regarding the actions by the Board of Selectmen, Planning Board, and Building Inspector pertaining to the Epsilon development. Of particular importance is Judge Piper’s ruling regarding the 1978 “Restriction” on the property. The Court, in part relying on the prior decision in the Boar’s Head litigation denying a request for a preliminary injunction, found: “…Plaintiff does not have a legally cognizable right to have the court reach and decide the merits of Plaintiff’s claim that the Epsilon Group project runs afoul of the provisions of the Restriction.” Decision, p. 20. Judge Piper also ruled that the development did not implicate Article 97 of the Massachusetts Constitution. Decision, pp. 21-23. Regarding the plaintiff’s appeal under c.40A, s.17 from site plan approval for the project, the Court ruled that while that claim was the only viable claim, “the claim to have the site plan approval modified or annulled by the court fails as a matter of law.“ Decision, p. 29. Finally, Judge Piper ruled that the plaintiff’s “interest in the local processes which led to the determination that the local boards made about the meaning and scope of the Restriction, and its applicability to the Epsilon Group project, is no different or better than that of any other resident or taxpayer in the Town of Chelmsford. He has no statutorily established right to bring this suit.” Decision, p. 31.

Paul Cohen
Town Manager

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