EILEEN STANDERWICK & others [Note 1] vs. ZONING BOARD OF APPEALS OF ANDOVER & another. [Note 2]

DOERFER, J. Avalon at St. Clare, Inc. (Avalon), was issued a comprehensive permit by the zoning board of appeals of Andover

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(board) under G. L. c. 40B, §§ 20-23, to construct a multi-unit building on a site in Andover. The plaintiffs, who are abutters, [Note 3] appealed the decision of the board to the Superior Court by a complaint under G. L. c. 40A, § 17. On a motion for summary judgment, the court dismissed the complaint on the grounds that the plaintiffs lacked standing. We hold that (1) at least some of the bases asserted by the plaintiffs for standing were legally cognizable, and (2) the plaintiffs' presumptive standing arising from their status as abutters was not successfully challenged by the evidence submitted by Avalon in support of its motion for summary judgment. The actual merits of the plaintiffs' challenge to the issuance of the comprehensive permit were not decided below and thus are not reviewed herein.

1. Background. The project in question is a residential housing development (the development) on a 9.127-acre parcel of land situated on River Road in Andover. The development site is located in a district zoned for single-family housing that requires a minimum lot size of one acre. This site has been improved by a four-story brick monastery formerly used to house members of the religious order of the Sisters of St. Clare. Avalon intends to raze the building and redevelop the site with a single, sixty-foot high, four-story apartment building containing 115 rental units, a paved parking area containing 220 parking spaces, a clubhouse, a management and leasing office, and an enclosed recycling center.

Twenty-nine of the 115 apartments are designated for low or moderate income housing. The development site is and will remain bounded by a ten-foot high masonry wall running along its southern, eastern, and western property lines. Vehicular access to the development site is provided by a circular driveway that intersects at its termini with River Road.

In the course of discovery the plaintiffs identified several ways in which they anticipated being adversely affected by the decision of the board, including diminution of their property values, traffic concerns, adverse drainage consequences, interference with light, increased noise, and an expected increase in crime and vandalism.

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In support of its motion for summary judgment on the issue of standing, Avalon supplied the affidavit of a traffic engineer who concluded that the project would not create unacceptable levels of service at various relevant intersections and that the local roads could adequately absorb the increase in traffic. Avalon submitted similar supportive affidavits from experts that concluded that there would be adequate management of stormwater and runoff according to relevant environmental and town standards. Avalon submitted no evidence regarding the impact of the project on the plaintiffs' property values. On this and other concerns expressed by the plaintiffs, Avalon relied instead on certain statements made by the plaintiffs in their responses to discovery requests, to which we refer below.

The plaintiffs submitted the affidavits of two witnesses who were in the real estate business, which tended to show that the plaintiffs' property values would be diminished as a result of the construction of the development. These affidavits were struck by the judge upon motion of Avalon. [Note 4] The plaintiffs submitted no other materials in opposition to the motion for summary judgment relevant to the question of their standing.

2. Grounds for standing. Avalon argued (and the judge agreed in his ruling) that for purposes of deciding whether a person is "aggrieved" under G. L. c. 40B, § 21, the legally cognizable injuries open for consideration are limited to those that might ultimately support a determination that either the denial of a comprehensive permit or the imposition of conditions on the grant of the permit in a manner that renders the proposed development "uneconomic" was "consistent with local needs" as that phrase is defined in G. L. c. 40B, § 20. [Note 5] The point has been decided otherwise.

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General Laws c. 40B, § 21, provides that "[a]ny person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in section seventeen of chapter forty A." In order to interpret the term "person aggrieved" as used in c. 40B, § 21, we look to the interpretation given the identical term in G. L. c. 40A, § 17. See Planning Bd. of Hingham v. Hingham Campus, LLC, 438 Mass. 364 , 368 (2003), citing Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 553 (1999) ("same standing requirements apply to appeals under G. L. c. 40A and G. L. c. 40B appeals"). General Laws c. 40B, § 20, read in conjunction with G. L. c. 40B, § 23, establishes substantive standards to be applied by a board of appeals in deciding whether to issue comprehensive permits and by the housing appeals committee (HAC) of the department of housing and community development in reviewing a board's decision. See Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, 363 Mass. 339 , 364-365 (1973). The plaintiffs were not required to demonstrate that the issuance of the comprehensive permit impaired interests in some way related to health, safety, site and building design, or the preservation of open space.

Thus, applying the usual principles relevant to a determination of standing, a party has standing to challenge the granting of a comprehensive permit if the grant of the comprehensive permit causes, or threatens with reasonable likelihood, a tangible and particularized injury to a private property or legal interest protected by zoning law. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 723 (1996). The plaintiffs must identify the interest or interests that they claim will be affected; the interests must be of a type that are intended to be protected by the zoning enabling act (such as property values, traffic, or parking); and the claims must be neither speculative nor too remote. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. at 554. See also Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 430-432 (1949); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989). The alleged

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injury must be "special and different from the concerns of the rest of the community." Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2002); Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 215 (2003). The question what evidence a plaintiff is required to produce in support of one or more of these recognized bases for standing, and upon what conditions it must be produced, depends on whether that plaintiff is entitled to a presumption of standing as an abutter.

3. Presumptive standing of abutters. The six plaintiffs all alleged at least some claims of injury based on concerns that form a legally cognizable basis for standing. But they were also either abutters or abutters of abutters [Note 6] and were entitled to notice under G. L. c. 40A, § 11. Consequently, well established evidentiary presumptions applied to their claims of standing under G. L. c. 40A, § 17, as "persons aggrieved." See Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. 106 , 111 (1995); Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 257-258 (2003); Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. at 212.

In order to rebut the presumption of standing, Avalon was required to offer evidence "warranting a finding contrary to the presumed fact." Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. at 111, citing Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. at 131. Marinelli v. Board of Appeals of Stoughton, 440 Mass. at 258. A defendant who challenges the standing of an abutter on a motion for summary judgment must produce evidence that meets this standard. But first, of course, the plaintiff must articulate a basis for standing that is legally cognizable. Diminution in real estate values is an injury that is a tangible and particularized injury to a private property or legal interest protected by zoning law. Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55 , 59 (1992),

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S.C., 415 Mass. 329 (1993). This is a valid basis for a claim of standing. [Note 7] As we have said above, no different standard of standing applies based on the fact that a comprehensive permit is involved. Having asserted a viable basis for standing on these grounds, the plaintiffs had no burden to produce evidence supporting that claim unless and until the defendants had offered evidence "warranting a finding contrary to the presumed fact." Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. at 111. Marinelli v. Board of Appeals of Stoughton, 440 Mass. at 257-258. In this case, the plaintiffs had no burden to support their claim of diminution of value, once having identified it, because the defendants did not offer any evidence warranting a conclusion that the plaintiffs' property would not be diminished in value. [Note 8]

Instead of supplying such evidence, Avalon cited various responses made by the plaintiffs during discovery, which revealed that (apart from the affidavits that had been struck) they had no evidence that would warrant a finding that the development would have an adverse impact on their property values. This lack of evidence was characterized as "evidence" in the arguments of Avalon and the decision of the judge.

Avalon relies on Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 (1993), to suggest that on summary judgment, it is sufficient merely to dispute the plaintiffs' claim of standing and to show that the plaintiffs have no evidence to support their position. As applied to a plaintiff who is presumed to have standing as an abutter, this argument cannot withstand analysis under Watros v. Greater Lynn Mental

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Health & Retardation Assn., 421 Mass. at 110-111, decided two years after Cohen v. Zoning Bd. of Appeals of Plymouth, supra, was decided, [Note 9] and applied in Marinelli v. Board of Appeals of Stoughton, 440 Mass. at 257-258. [Note 10]

We can no longer say, as we did in Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. at 621, that the filing of a motion for summary judgment constitutes a "challenge" sufficient to make the statutory presumption recede, and requires the plaintiffs to come forward with "specific facts" to support

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their assertion of status as aggrieved persons, as would be required under Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). [Note 11]

As abutters who claimed at least one valid basis for standing that was not rebutted with evidence from the defendants, it was not necessary for the plaintiffs to articulate other valid bases for standing in order to survive the motion for summary judgment. We note in passing that the defendants did supply evidence that would support conclusions contrary to the plaintiffs' claims of standing based on storm water runoff [Note 12] and traffic congestion. On those points the plaintiffs' presumption receded, and the court was correct in requiring the plaintiffs to submit evidence in opposition to the defendants' motion for summary judgment to at least show a material dispute of fact. The defendants were free to argue that on the summary judgment record, the plaintiffs had no reasonable expectation of being able to prove their aggrievement, based on such concerns, at trial. Kourouvacilis v. General Motors Corp., 410 Mass. at 716. [Note 13]

Certain of the plaintiffs' claims as to standing did not meet

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the test of Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. at 721-723, and thus required no specific contrary evidence from Avalon. [Note 14] An interest in preserving the rural character of the neighborhood is not a legally cognizable interest to be considered in determining standing. [Note 15] See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. at 493; Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. at 132-133. [Note 16] This is the type of problem identified with the plaintiff's claim of standing in Riley v. Janco Cent., Inc. 38 Mass. App. Ct. 984 , 985 (1995) (headlights shining into plaintiff's home). Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657 , 659-660 (2001), should also be read in the same way, even though we referred to deficiencies of the plaintiff's affidavit as "evidence" and cited to Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. at 554, and Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. at

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623. [Note 17] The plaintiff's claim in Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. at 660, to prevent a vacant apartment building from being occupied was clearly not cognizable as an injury to a private right or otherwise entitled to recognition under the zoning laws. The plaintiff's further claim in Rinaldi, supra at 660, that traffic and parking would be aggravated by the allowance of a sixth dwelling unit where five presently existed and where the locus in question was a densely populated urban environment, was equally trivial. In any event, Marinelli v. Board of Appeals of Stoughton, 440 Mass. at 257-258, had not yet been decided, affirming and clarifying the doctrine set out in Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. at 111, that a defendant must produce evidence sufficient to warrant a conclusion contrary to the statutory presumption. [Note 18]

4. Conclusion. For the foregoing reasons, the judgment must be reversed as to all the plaintiffs and the matter remanded to the Superior Court for further proceedings consistent with this decision.

So ordered.