KENNETH RHINES v. JOSEPH FIGUERIDO, AND JOSEPH PACHECO, PETER CARON, KENNETH T. PACHECO, ROBERT W. ADAMS, SR., KENNETH M. REBELLO, AND E. BUD WHALON, AS THEY ARE MEMBERS OF THE BOARD OF APPEALS OF THE TOWN OF DIGHTON, MASSACHUSETTS

This action is a G.L. c. 40A, § 17 (§ 17) appeal [Note 1] by Kenneth Rhines (plaintiff) challenging a variance granted [Note 2] by the Town of Dighton Board of Appeals (Board) to Joseph Figueredo (defendant). The variance granted relief from Section VI of the Town Zoning Bylaw (Bylaw) which requires 175 feet [Note 3] of frontage for the construction of a single family residence [Note 4] on the property in question (locus/defendant’s lot). [Note 5] Defendant was therefore authorized to proceed with the construction of a single family dwelling (project) [Note 6] utilizing 163.15 feet of available frontage. [Note 7] On October 23, 2007, defendant filed a motion for summary judgment, and supporting memorandum. Plaintiff’s revised opposition and memorandum were filed on December 13, 2007. On that same date the matter was heard and taken under advisement by the Court.

Background

The locus is a “horseshoe shaped lot,” [Note 8] consisting of 48, 301 square feet. [Note 9] Plaintiff in turn, owns and resides at 1587 Elm Street, Dighton, [Note 10] a parcel having 150 feet of frontage on Elm Street [Note 11] and which is surrounded on three sides by defendant’s lot. [Note 12] Because of the somewhat unusual configuration of the locus, defendant possesses frontage on two non-contiguous segments of Elm Street. Although the northerly segment contains 175.24 feet of frontage, access to the proposed building site would be impeded by the presence of a wide swath of wetlands. [Note 13] The Board granted defendant’s application for a variance based upon the availability of the 163.15 feet of frontage provided by the southerly segment. Moreover, the southerly segment offers direct access to the proposed building site. [Note 14] The Board also found that, with the exception of the frontage requirement, the locus meets all other dimensional requirements for a residential lot under the Bylaw. [Note 15]

Defendant’s summary judgment motion challenges plaintiff’s standing to maintain the instant lawsuit, contending that plaintiff has failed to produce the requisite evidence of “aggrievement” within the meaning of § 17. In support of its motion, defendant conducted a deposition of the plaintiff on October 10th, 2007. During the course of his deposition, plaintiff was systematically questioned as to how he was aggrieved or harmed by the Board’s decision. [Note 16] He was also systematically questioned regarding the factual bases for his claims of aggrievement.

In response to the questions posed by defendant’s counsel, plaintiff asserted the following purported grounds of aggrievement: (1) defendant failed to prove hardship: [Note 17] (2) “the process was subverted;” [Note 18] (3) a loss of privacy; [Note 19] (4) “it hurts the whole town by granting this kind of a variance;” [Note 20] (5) “nobody in the neighborhood wants [defendant’s] house to be built.” [Note 21]

Plaintiff stated that these concerns were based upon his own personal opinion, and that he had not retained any expert to advise him with regard thereto. [Note 22] In his brief, plaintiff raised additional concerns regarding increased noise and light, [Note 23] and argued that the Bylaw requires 250 feet of frontage for lots with no municipal sewer service. Defendant proposes to construct a septic system, and plaintiff’s arguments imply that this proposed septic system will potentially infringe a property interest the zoning law seeks to protect.

Upon prompting by his attorney, plaintiff also acknowledged that he had raised issues at the public hearing on defendant’s application with regard to “wetlands issues” and “water table and density.” [Note 24] Plaintiff however, did not submit any expert affidavit(s) in support of his claims of aggrievement.

Summary Judgment Standard

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.), citing, e.g., Hogan v. Riemer, 35 Mass. Ct. 360, 364 (1993).

This demonstration by the moving party need not encompass affidavits or other similar materials negating the opponent’s claim. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323. “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis, 410 Mass. at 711, citing Celotex Corp., 477 U.S. at 322. Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the…court demonstrates that the standard for the entry of summary judgment is satisfied.” Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-324. [Note 25]

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light,…does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

The possibility that the non-movant could elicit material evidence on cross-examination of witnesses is not grounds for denying summary judgment. Thompson v. Commonwealth, 386 Mass. 811 (1982). Once the moving party has met its burden, to withstand summary judgment the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). “In determining whether a factual dispute is “genuine,” the Court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party. Steffen v. Viking, 441 F.Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The function of the court at summary judgment is not to determine the credibility of witnesses or weigh the evidence. Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987). Nonetheless, Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law. The record before the court reflects no genuine factual dispute, material under the relevant law, which would preclude a legal determination of plaintiff’s claim of standing. Consequently, the case is ripe for summary judgment.

Discussion

Proof of standing is an integral component of the statutory scheme for judicial oversight of local zoning administration in Massachusetts. [Note 26] G. L. c. 40A, § 17 authorizes judicial review of local zoning decisions. However, a plaintiff must qualify as a “person aggrieved” by the zoning decision if he is to establish the standing necessary to maintain an appeal. Section 11 of chapter 40A of the General Laws defines a class of “parties in interest” who are entitled to notice of proceedings before a Board of Appeals. [Note 27] The plaintiff received such notice of the relevant proceedings in the instant case. As a “party in interest” therefore, plaintiff becomes entitled to a rebuttable presumption of standing. Marashlian v. Zoning Bd. of Newburyport, 421 Mass. 719 , 721 (1996).

In order to rebut this presumption, the defendants must challenge the plaintiff’s standing and offer evidence to support the challenge. Standerwick, 447 Mass. at 33-34; Marashlian, 421 Mass. at 722 (“The plaintiffs’ standing was challenged and thus [the presumption receded]”); See Marotta, 336 Mass. at 205 (presumption is a “rule of reason which, in the absence of direct evidence on the issue….will carry the [plaintiff] over the jurisdictional threshold”, but “[i]f the issue is contested, and any additional evidence is offered,” the presumption recedes). [Note 28] In Marinelli v. Board of Appeals of Stoughton, the Court stated that in order to rebut the presumption of standing, the defendant must offer evidence “warranting a finding contrary to the presumed fact.” 440 Mass. 255 , 258 (2003). In Standerwick, the Supreme Judicial Court elaborated on the meaning of the oft-cited language from Marinelli:

[A]n abutter is presumed to have standing until the defendant comes forward with evidence to contradict that presumption. Our conclusion that this evidence must ‘warrant a finding contrary to the presumed fact’ does not shift the burden of proof on the issue of standing to the defendant.

Standerwick, 447 Mass. at 34-35, citing Perley v. Perley, 144 Mass. 104 , 107-108 (1887).

The Standerwick Court further emphasized the need to properly restrict the effect of this presumption when it observed as follows: “We clarify that the plaintiff always bears the burden of proof on the issue of standing. An abutter’s presumption of standing simply shifts to the defendant the burden of going forward with the evidence.” [Note 29] Standerwick, 447 Mass. at 34-35, n.20, citing Epstein v. Boston Hous. Auth., 317 Mass. 297 , 302 (1944) (a presumption does not shift the burden of proof); Thomes v. Meyer Store, Inc., 268 Mass. 587 , 589 (1929) (presumption is not evidence but a rule of evidence that “disappears when the facts are shown” ); Duggan v. Bay State Ry., 230 Mass. 370 , 378 (presumption stands “only until the facts are shown” ); Wyman v. Whicher, 179 Mass. 276 , 277-278 (1901) (burden of going forward with evidence to rebut presumption does not change burden of proof). Once rebutted, the presumption recedes, and the issue of standing is decided upon all the evidence, “with no benefit to the plaintiff from the presumption.” Standerwick, 447 Mass. at 33-34, quoting Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992).

The rationale underlying this presumption is that “those entitled to notice of the proceedings are presumed to have the requisite interest” in the outcome of those proceedings. Standerwick v. Board of Appeals of Andover, 447 Mass. 20 , 33 (2006); see Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957) (“there is a presumption that property owners to whom the Board in the performance of its statutory obligation has sent notice as persons deemed by the Board to be affected thereby have an interest and are persons aggrieved”). It follows from this rationale that the presumption is so tightly bound up with the plaintiff’s status, based solely on geographical proximity, as a person “deemed by the Board to be affected” by the proceedings, that it should not be extended to apply to the particular grounds of aggrievement that may be alleged by the plaintiff. [Note 30] Rather, plaintiff must fully support these bases of aggrievement with credible evidence. As observed by the Supreme Judicial Court, the Standerwick Appeals Court erred [Note 31] when it determined that

because of their presumptive standing as abutters, the plaintiffs [in the superior court proceeding] had no burden to produce any evidence supporting their claims “unless and until the defendants had offered evidence ‘warranting a finding contrary to the presumed fact.’ Concluding that reliance on the plaintiffs’ failure to identify in discovery any evidence to support their claims of aggrievement did not constitute such evidence, the [Appeals Court] ruled that the developer had not come forward with sufficient evidence to rebut this presumption of standing.

Standerwick, 447 Mass. at 25, 26, citing Standerwick v. Zoning Bd. of Appeals of Andover, 64 Mass. App. Ct. 337 , 342, 344-345 & n. 16.

Based upon its interpretation of the scope of the abutters’ presumption, [Note 32] the Appeals Court had reversed a grant of summary judgment in favor of the defendants, holding that “the plaintiffs’ presumptive standing as abutters was not adequately challenged by evidence submitted by the developer in support of its motion for summary judgment.” Standerwick, 447 Mass. at 22, citing 64 Mass.App.Ct. at 342-344. The Supreme Judicial Court however, determined that the defendants had adequately challenged the plaintiffs’ presumptive standing by “seeking to discover…the actual basis of their claims of aggrievement.” Standerwick, 447 Mass. at 37.

In response to the defendant’s pretrial discovery in the Superior Court, the Standerwick plaintiffs had articulated grounds of aggrievement including fear of increased crime and vandalism, light and noise pollution, as well as traffic and drainage problems, but offered no expert opinion in support of these claims. Standerwick, 447 Mass. at 23. Although the defendants supplemented their motion for summary judgment with expert affidavits controverting the plaintiffs’ concerns regarding traffic and drainage, they submitted no such affidavits addressing any of the plaintiffs’ other concerns. However, “through discovery of the plaintiffs, the [defendant] demonstrated that the plaintiffs had no factual bases for their claims of increased crime or vandalism.” Id. at 36. Such proof was sufficient to rebut the plaintiffs’ presumption of standing, as the Court held that “the [defendant] was not required to support its motion for summary judgment with affidavits on each of the plaintiffs’ claimed sources of standing; its reliance on the plaintiffs’ lack of evidence as to the other claims, obtained through discovery, had equal force.” [Note 33] Standerwick, 447 Mass. at 35-36, citing, e.g., Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 622 (1993) (“deponents’ inability to ‘articulate whether or how the plaintiffs would be injured’ was not conclusive [of the standing inquiry,] but caused the presumption of standing ‘to recede.’”) Accordingly, a defendant “may rebut a presumption of standing by seeking to discover from the plaintiff the actual basis of [the purported] claims of aggrievement.” Id. at 37.

Turning to the case at hand, in light of the Supreme Judicial Court’s rationale in Standerwick, it is apparent that the defendants have successfully rebutted plaintiff’s presumption of standing. See Jepson v. Zoning Board of Appeals of Ipswich, 450 Mass. 81 , 89 n.12 (2007), citing Standerwick, 447 Mass at 35 (at summary judgment, defendant not required to present affirmative evidence that refutes plaintiff’s basis for standing). Through the instant Motion for Summary Judgment, the defendants have “challenged plaintiff’s standing.” As evidence in support of this challenge, defendants have proffered the Deposition of Kenneth Rhines, which demonstrates that plaintiff has “no reasonable expectation of proving a legally cognizable injury.” Standerwick, 447 Mass at 35-36. Under these circumstances, where “direct evidence” on the issue of standing has been introduced into the record, the presumption of standing recedes, and the “point of jurisdiction [is] determined on all the evidence with no benefit to the plaintiffs from the presumption[.]” See Marotta, 336 Mass. at 204; see also Standerwick, 447 Mass. at 23-24 (Presumption rebutted where plaintiffs articulated at least six separate grounds of aggrievement, and defendants countered with expert affidavits specifically addressing two of the grounds and discovery challenging the factual bases of the remaining grounds).

Without the benefit of the presumption to establish standing, the plaintiff must “plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or Bylaw at issue is intended to protect.” Standerwick, 447 Mass. at 30. Thus, the task of a plaintiff whose standing has been properly challenged is twofold: (1) to articulate at least one potential injury to a private legal interest which the zoning Bylaw seeks to protect, and (2) to present evidence of a kind which will “plausibly demonstrate” the risk of such harm occurring as a result of the Board’s challenged action.

(1) Injury to a Private Legal Right of the Plaintiff

To qualify as a valid basis of aggrievement, the plaintiff’s endangered interest must be “special and different from the concerns of the rest of the community.” Bell, 429 Mass. at 554. Claims of aggrievement which are merely reflective of the broader concerns of the local community are not sufficient to confer standing upon a plaintiff under G.L. c. 40A, § 17. Denneny, 59 Mass. App. Ct. 129 , 132 (1992).

As presented in both his deposition and Memorandum in Opposition to Summary Judgment, plaintiff has articulated approximately eight to ten separate grounds of aggrievement. [Note 34] A number of these grounds fail to implicate any interest which the zoning law seeks to protect. First, plaintiff complains that defendant “failed to prove a hardship.” This claim does not identify any private legal interest of the plaintiff which the zoning law seeks to protect, but rather, it represents at best, a “general civic interest in the enforcement of the zoning laws” which cannot confer standing upon the plaintiff. See Harvard Square Defense Fund, 27 Mass. App. Ct. at 495-496. This rationale applies equally to plaintiff’s claim that “the process was subverted” in the course of defendant’s variance proceedings before the Board. Plaintiff’s claims that “it hurts the whole town by granting this kind of a variance;” and that “nobody in the neighborhood wants [defendant’s] house to be built” clearly fall into the category of claims of aggrievement which are merely reflective of the broader concerns of the local community, and which are insufficiently specific to any private interest of the plaintiff to confer the requisite standing. Denneny, 59 Mass. App. Ct. 129 , 132 (1992).

In addition to these clearly non-cognizable claims of harm, plaintiff raises an issue in his memorandum regarding the proper interpretation of the Dighton Zoning Bylaw, and asserts that “the Board’s failure to apply…the correct frontage requirement directly injures a private legal right of plaintiff.” [Note 35] Plaintiff argues that the Bylaw should be interpreted to require 250 feet of frontage instead of the 175 feet requirement which the Board applied, based on language in the Bylaw requiring 250 feet of frontage for “lots without water or sewer.” [Note 36] Plaintiff contends that this language requires 250 feet of frontage where the lot has one, but not the other. Defendant takes the view, shared by the Dighton Building Inspector, that the 250 foot requirement is only triggered where a lot lacks both water and sewer service. [Note 37] Plaintiff attempts to link this concern regarding interpretation of the Bylaw to some potential for harm related to defendant’s septic system, stating that “as enacted, the Dighton Zoning Bylaw requires additional frontage in areas that lack municipal sewers.” This argument of the plaintiff conflates these two distinct concerns, but the standing analysis requires that they be treated separately. The first, relating to interpretation of the Bylaw, is essentially an invitation to consider the merits of plaintiffs appeal at a premature stage, which this court will decline. [Note 38] Where this argument succeeds is in demonstrating that the second concern, relating to the risk of harm posed by defendant’s proposed septic system, may implicate an interest which the zoning law seeks to protect. However, as discussed infra, at p.13, plaintiff has failed to submit sufficient evidence to substantiate his concerns relating to defendant’s proposed septic system.

(2) Plausible Demonstration that Cognizable Harm is Likely to Occur

Having eliminated his non-cognizable claims of aggrievement from consideration, the question remains whether plaintiff has supported any of his remaining claims of potential harm with sufficient evidence to establish standing. The requirement that a plaintiff “plausibly demonstrate” risk of a specific harm means that the plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. Evidence may be “credible” without amounting to a preponderance of the evidence. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005), citing Marashlian, 421 Mass. at 724. “The evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the Board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.” Butler, 63 Mass. App. Ct. at 441, citing Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994). Whether the plaintiff has met its burden of providing the requisite credible evidence is a question of fact for the trial judge. Marashlian, 421 Mass. at 721, citing Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372 , 377 (1988).

Plaintiff’s submissions raise the following concerns, each of which implicate potential harm to an interest the zoning law seeks to protect: 1) diminished privacy; 2) increase of noise; 3) increase in lighting; 4) installation of a new septic system. Diminished privacy has been recognized as a cognizable basis for standing. See McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930 (2004). In McGee, the defendant proposed construction of a one and a half story addition to his property. Id. at 930. However, the plaintiff’s property was so close to that of the defendants that they “shared a light well,” and at the closest point were separated by “barely a foot.” Id. at 931. The court found that defendant’s construction would “bring [his] top floor within a bit less than a foot of [plaintiff’s] fourth floor, resulting in a marked reduction in their light, air, view and privacy.” Id. In the instant matter, however, plaintiff has not alleged any facts even remotely similar to those in McGee. Rather, the evidence shows that at the closest point, the plaintiff’s home and defendant’s proposed structure will be separated by a distance of 96 feet. There is no allegation that defendant’s proposed structure would perceptibly impact plaintiff’s existing supply of light and air, or his view. Plaintiff’s claim is seemingly based on no more than a preference that the land surrounding his lot remains in an unimproved state. [Note 39] In the absence of any evidence to indicate that defendant’s house would impact plaintiff’s light, air or view, this mere preference for isolation is insufficient to confer standing.

Plaintiff’s concerns regarding potential harm related to an increase in noise and lighting are without support of any kind in the record. While one might assume that the presence of a single family home on an adjacent lot might result in somewhat more intense emanations of noise and light than would issue from an unimproved lot, there is absolutely nothing to suggest that defendant proposes to install intrusive lighting or cause excessive noise. Plaintiff’s vague, generalized fears on these matters are insufficient to confer standing.

As referenced above, plaintiff’s concerns regarding defendant’s proposed installation of a septic system at the locus could implicate an interest cognizable under the relevant zoning law. However, as with all of his other claimed bases of aggrievement, plaintiff has failed to substantiate these concerns with any direct or specific evidence. There is nothing in the record that would even suggest that defendant’s septic system is likely to impact negatively on plaintiff’s water supply or land. The plaintiff’s assertion that the Bylaw should be construed to require 250 feet of frontage when either town water or sewer service is lacking, does not constitute credible evidence of aggrievement. In order to meet its burden of establishing standing at summary judgment, the plaintiff is required “come forward with ‘specific facts’ to support the assertion of status as an aggrieved person.” Cohen v. Zoning Board of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 621-622 (1993), citing Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 n.9 (1992); Kourouvacilis, 410 Mass at 716. Plaintiff has not come forward with specific facts to establish that the installation or continuing presence of defendant’s septic system is likely to result in cognizable harm. See Sweenie v. A.L. Prime Energy Consultants, Slip Op. SJC-10068 (2008) (denial of plaintiff’s claim of aggrievement based on unsubstantiated fears of groundwater contamination); compare Jepson, 450 Mass. at 91-92 (plaintiff substantiated claim of aggrievement by submitting photographs, affidavits, conservation commission reports, and other documents, all specifically linking defendant’s project to conditions likely to increase flooding of plaintiff’s property). Nor has plaintiff come forward with any specific facts in support of any other claimed basis of aggrievement. [Note 40]

The only facts in the record which directly relate to plaintiff’s claims of harm, are plaintiff’s general objections to the construction of any residence whatsoever on the defendant’s lot. These generalized objections are clearly insufficient to substantiate plaintiff’s claim of aggrievement. See Standerwick, 447 Mass. at 36 (plaintiffs lacked standing where they failed to support their apprehension and speculation with specific evidence). Likewise, plaintiff has not raised any genuine issue of material fact which would preclude summary judgment on the issue of standing. See Standerwick, 447 Mass. at 37 (summary judgment appropriate where plaintiff has adduced insufficient evidence to substantiate claims of aggrievement.) In sum, defendant has “successfully established that the plaintiff [has] no reasonable likelihood of proving” aggrievement. Standerwick, 447 Mass. at 37. Therefore, defendant is entitled to summary judgment dismissing plaintiff’s complaint for lack of standing. Id.

Conclusion

For the foregoing reasons, this court concludes that it lacks jurisdiction with regard to the subject matter of the plaintiff’s complaint. Consequently, the defendants’ Motion to Dismiss is hereby ALLOWED.

Judgment to enter accordingly.

SO ORDERED.

By the Court. (Grossman, J.)