AQUACULTURAL RESEARCH CORPORATION and another [Note 1] vs. OLD KING’S HIGHWAY REGIONAL HISTORIC DISTRICT COMMISSION and another [Note 2]

WILLIAMS, P.J. The Old King’s Highway Regional Historic District (“District”) encompasses a sizable swath of Cape Cod surrounding Route 6A (Old King’s Highway) in several Cape towns. [Note 4] The statute governing the District, St. 1973, c. 470,

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as amended (“the Act”), [Note 5] requires a person seeking to construct or alter a structure within its ambit to obtain a certificate of appropriateness (“certificate”) from the relevant Town Committee in order to allow any such project to proceed. [Note 6] Any “person aggrieved” by a committee decision about an application may appeal that decision to the Regional Commission (“Commission”), and any “person aggrieved” by a Commission decision may seek review thereof in the District Court having jurisdiction over the town where the subject property is located. [Note 7] Here, the plaintiff, Aquacultural Research Corporation (“ARC”) sought and received a certificate from the Dennis Committee to erect a wind turbine on its property. A Dennis resident, Rosemarie Austin (“Austin”), appealed that decision to the Commission, which

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found that the Dennis Committee had exercised poor judgment and so annulled that decision and denied the application. ARC, in turn, appealed that decision to the Orleans District Court. The trial judge found that the Commission had exceeded its authority, and reversed that decision, thus affirming the Dennis Committee’s decision to issue the certificate. Included in the trial judge’s decision was his conclusion that Austin had standing to have appealed to the Commission from the Dennis Committee because she was a “visual abutter” as to the proposed turbine and the value of her property might be devalued were the turbine erected. Because we find that that determination was error as a matter of law, we do not reach the merits of the case, since it should not have progressed beyond the Dennis Committee’s decision. We vacate the trial court’s decision. Although we do so, the result remains the same. The effect of our decision is that the case returns to where it stood before the appeal to the Commission: with the issuance by the Dennis Committee to ARC of the certificate.

The Legislature originally enacted the Act in 1973 to promote the welfare of the District through “the preservation and protection of buildings, setting and places . . . and through the development and maintenance of appropriate settings, the exterior appearance of such buildings and places, so as to preserve and maintain such regional district as a contemporary landmark compatible with the historic, cultural, literary and aesthetic tradition of Barnstable county, as it existed in the early days of Cape Cod, and through the promotion of these past historic associations of Barnstable county.” Act, § 1. [Note 8] See Harris v. Old King’s Highway Regional Historic Dist. Comm’n, 421 Mass. 612, 614-615 (1996). See also MacRobbie v. Old King’s Highway Regional Historic Dist. Comm’n, 1992 Mass. App. Div. 42, 43 (purposes of Act “primarily to preserve historical landmarks and insure compatibility with other structures”).

ARC wished to construct a 600-kilowatt wind turbine on its 39.7-acre Dennis property to help defray its costs as a shellfish cultivator and wholesaler. [Note 9] ARC’s property is bounded by Chapin Memorial Beach, Chase Garden Creek (the boundary between Dennis and Yarmouth), and conservation land. Existing buildings on ARC’s

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land, including a warehouse, greenhouse, and a main building containing a hatchery, are onestory structures. The proposed turbine would be 164-feet tall from its base to the hub of the blades, and 242-feet tall from its base to a fully vertical blade tip. The base would be 10 feet in diameter, and would be set in a concreteslab foundation 50 feet in diameter.

In July, 2010, ARC applied to the Dennis Committee for a certificate of appropriateness so that it could begin constructing the proposed turbine. After two public hearings, the Committee approved ARC’s application. [Note 10]

In September, 2010, Austin appealed the Dennis Committee’s approval to the Commission. Following a public hearing later that month, the Commission determined pursuant to § 11 of the Act that the Dennis Committee had exercised poor judgment in approving ARC’s application. The Commission did not address Austin’s standing as an aggrieved person entitled to have appealed the Dennis Committee’s decision. [Note 11] The Commission, apparently assuming jurisdiction to consider such an appeal, denied ARC a certificate of appropriateness for the proposed turbine on the

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ground that the Dennis Committee had exercised “poor judgment” in granting the certificate.

ARC -- unquestionably a “person aggrieved” -- then appealed the Commission’s decision to the Orleans District Court, seeking annulment of that decision and an order that the desired certificate be issued. The trial judge allowed the town of Dennis to intervene, and denied the motion of the town of Yarmouth to do so. After two years of litigation, a threeday trial began in January, 2013; much evidence was admitted in written form to reduce the number of trial days. In February, 2013, the trial judge issued a comprehensive 23-page opinion, reversing the Commission’s decision and reinstating the Dennis Committee’s decision to grant ARC a certificate of appropriateness. Because we find that Austin was not a proper “person aggrieved” to have appealed the decision of the Dennis Committee to the Commission, we do not reach any other issues presented in the trial judge’s decision or raised in this appeal.

The trial judge in such appeals “may hear all pertinent evidence and determine the facts.” Act, § 11. See, e.g., Anderson v. Old King’s Highway Regional Historic Dist. Comm’n, 397 Mass. 609, 611 (1986). “The judge’s findings of fact are ‘final and conclusive.’” Anderson, supra, quoting Act, § 11. We review the implicit finding of the trial court regarding standing without regard to the lack of attention by the Commission to the issue. The trial court must find, or not, that a person had standing to have appealed to the Commission and not just to have appealed to the District Court. Usually, those parties have been the same, [Note 12] but here they are not. ARC obviously had standing to have appealed the Commission’s decision to the District Court. Austin, we must conclude, did not enjoy such standing.

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The trial judge devoted two pages of his decision to the issue of her standing, which had been raised at trial by the intervenor town of Dennis. [Note 13] Noting that the issue of Austin’s standing “was apparently not argued” before the Commission, the trial judge declared, correctly, that the question of one’s standing -- in the language of the Act, as a “person aggrieved” -- is a jurisdictional issue that may be raised at any time. Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903, 904-905 (2010), citing, inter alia, Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998), and Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992) (status as “party aggrieved” is status conferring standing to prosecute an appeal; standing is an issue of subject matter jurisdiction that cannot be waived and may be raised at any stage of proceedings). [Note 14]

The trial judge found that Austin is not an abutter to the ARC property. Her home, which is otherwise undescribed, is “about threequarters of a mile as the crow flies from the ARC facility.” [Note 15] Neither Austin’s home nor her neighborhood has “any historic significance.” Austin’s view (whether from her house or elsewhere on her property is not known) encompasses marshes, conservation land, and, in the distance, Cape Cod Bay, and that view is unobstructed except by ARC’s “large and dilapidated-appearing buildings.” The proposed turbine “would be very visible from Austin’s property,” although no specifics about such a potential view were provided. She

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would thus be a “visual abutter.” The trial judge suggested that the turbine would be “incongruous in this setting,” and that its presence would have a “negative effect, albeit one not calculable to a specific amount based on the evidence before the court, on the value of Ms. Austin’s property.” [Note 16]

Because Austin is not an abutter, the trial judge, quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27-28 (2006), observed that she must, as a threshold matter, “assert ‘a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.’ (Citation omitted.) Of particular importance, the right or interest asserted must be one that the statute under which a plaintiff claims aggrievement intends to protect.”

He observed that the purpose of the Act “is to suppress the obviously incongruous,” Sleeper v. Old King’s Highway Regional Historic Dist. Comm’n, 11 Mass. App. Ct. 571, 574 (1981), and characterized the Act as being “concerned with the visual appearance of things.” And when a zoning ordinance demands consideration of the visual impact of a proposed structure on a neighborhood, “in order for a[n] [allegedly aggrieved person] to establish standing based on the impairment of an interest protected by [the] zoning bylaw, [that person] would need to show a particularized harm to [her] own property and a detrimental impact on the neighborhood’s visual character.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121 (2011). He concluded that “[a]s a ‘visual abutter,’ Austin has a more particularized detriment from the project and thus had standing to appeal from the decision of the [Dennis] Committee.”

We have found no authority, anywhere, sanctioning the concept of one’s status as a “visual abutter” (or even using that term) so as to qualify him or her as a “person aggrieved” under this Act or any similar statute, or to otherwise confer standing on a person.

The fullest explication of assessing whether someone is a “person aggrieved” within the meaning of the Act remains the Appellate Division’s opinion of Allen v. Old King’s Highway Regional Historic Dist., 2000 Mass. App. Div. 330. In Allen, which

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concerned the proposed addition to a house in Sandwich, none of the six plaintiffs was an abutter to the subject property. The nearest plaintiff lived “four houses” away from the subject residence, and the farthest lived about five miles away. Id. at 331. At least some of the plaintiffs were members of the Sandwich Town Committee, which had denied the application for a certificate of appropriateness in the first instance. [Note 17]

Allen stressed that when the Legislature created the Commission, it did not intend “to create a private right on the part of citizens of a community to enforce the provisions of the Act.” Id. at 331. A purported plaintiff’s burden of establishing status as a “person aggrieved” is not a “procedural nicety,” but rather “goes to the very heart of the court’s authority to hear and determine the cause.” Id., citing, inter alia, Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). See also Coalition to Preserve Belmont Uplands & Winn Brook Neighborhood v. Department of Envtl. Protection, No. 12P526 (Mass. App. Ct. Sept. 9, 2013) (unpublished Rule 1:28 decision), citing Planning Bd. of Marshfield v. Board of Appeals of Pembroke, 427 Mass. 699, 703 (1998) (lack of standing goes directly to subject matter of court).

Someone’s proximity to the subject property does not automatically confer “standing” upon that person, Allen, supra at 331, citing Marotta, supra at 203, and would, presumably, not automatically establish one as being a “person aggrieved.”

As Allen noted, the District encompassed by the Act “is a large one. [Note 18] To suggest that any inhabitant or property owner in so large a district may invoke the judicial review provisions of the Act without making a plausible claim of a definite violation of a private ight would be inconsistent with the purposes of the Act by enlarging the class of potential plaintiffs who might attack the decision of the commission solely on aesthetic or other subjective grounds. To put the commission and the applicants to the expense of litigation when assailed from so large a quarter would not be consistent with the fair balance between the reasonable expectation of property owners to the use of their land and the preservation of antiquity espoused by the Act” (emphasis added).

Id. at 332. Once evidence is offered challenging the presumption of aggrievement, that presumption evaporates, and the issue of jurisdiction must be considered anew. Id. at 331, citing Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 217 (1975). As Allen emphasized, simple civic interest in enforcing historic zoning is

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insufficient to confer standing. Id. at 331, citing Amherst Growth Study Comm., Inc. v. Board of Appeals of Amherst, 1 Mass. App. Ct. 826 (1973). Indeed, one “zealous in the enforcement of the laws but without a judicially recognized private interest is not a ‘person aggrieved.’” Id., citing Godfrey v. Building Comm’r of Boston, 263 Mass. 589, 590 (1928). Such zeal is precisely what Austin demonstrated before the Commission and the District Court.

Further, “[s]ubjective and unspecified fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.” Id., quoting Barvenik, supra at 132-133. And the Division in Allen found language in Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 (1989), to be “apt and germane”: concerns about “diminished open space, incompatible architectural styles, the belittling of historical buildings, and the diminished enjoyment of the ‘village feeling’” boiled down to “the expression of aesthetic views and speculative opinions,” which “do not establish a plausible claim of a definite violation of a private right, property interest or legal interest sufficient” to confer standing on a prospective plaintiff. Allen, supra at 331-332, quoting Harvard Sq. Defense Fund, Inc., supra at 493. Austin’s concerns with the proposed turbine are exactly these: that its looming presence would be detrimental to the character of the area generally, that it would tarnish the view from her home (although even this apprehension was not sharply expressed), and that it might reduce the value of her home (which, again, was itself not even described, and the value was not quantified in any way, notably through any acceptable opinion).

The Division in Allen specifically rejected argument that determining “person aggrieved” status should be made under “the more liberal interpretation” for deciding standing under G.L. c. 40C, the Historic Districts Act. Allen, supra at 332. The Division concluded that G.L. c. 40C did not apply to the Act and that the “liberal definition of ‘aggrieved persons’ is inapposite to cases arising under the [Act].” Id. Cf. Home Bldrs. Ass’n of Cape Cod, Inc. v. Cape Cod Comm’n, 441 Mass. 724, 733 (2004) (standing requirements in declaratory judgment proceedings should be liberally construed). We observe, however, that recently, the plaintiffs in Kelley v. Cambridge Historical Comm’n, 84 Mass. App. Ct. 166 (2013), proceeding under G.L. c. 40C, were found to lack standing even under what the Division in Allen had considered in 2000 to be that statute’s “liberal” approach. The Kelley plaintiffs were neighbors but not abutters to a historical church, to which changes were planned. Those neighbors’ proximity to the church was “beside the point,” and alleged harms such as increased traffic, diminished public parking, impaired snow removal, and “aesthetic impacts (e.g., their having to look at a ‘prison wall’)” did not confer standing absent a showing that their harm was distinct from that suffered by public at large. Id. at 180-181. Such an “aesthetic impact” is precisely Austin’s chief claim to standing. As in Kelley, such an impact must fall short of achieving standing.

However mindful we are that the aim of the Act is to preserve the District as a “landmark compatible with the historic, cultural, literary and aesthetic tradition” of Cape Cod, as it existed “in the early days,” Austin’s aesthetic concerns, even paired with the speculative diminution of the value of her property, are not enough to have supported a conclusion by the trial court that she qualified as a person aggrieved so

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as to challenge the decision of the Dennis Committee before the Commission. Because of that deficiency, we vacate the judgment of the Orleans District Court, recognizing that the effect of this decision is to restore the case to the point it existed when the Dennis Committee issued to ARC its certificate of appropriateness.

The judgment of the Orleans District Court is vacated.

So ordered.