DONALD E. STASZKO, individually and as trustee of Cohasset Realty Trust and COHASSET REALTY TRUST v. ALFRED S. MOOR, JR., WILLIAM GOOD, ROBERT H. STURDY, STUART IVIMEY, MICHAEL WESTCOTT, as members of the Town of Cohasset Planning Board, TOWN OF COHASSET, and ABBOTT HOMES COHASSET, LLC

This action was commenced by plaintiff Donald Staszko, individually and as trustee of Cohasset Realty Trust, on November 16, 2007, seeking to annul the decision of the defendant Town of Cohasset Planning Board granting a special permit to defendant Abbott Homes Cohasset, LLC (Abbott Homes) for the construction of a single family residential cluster development on a certain parcel of real property located at 230 Sohier Street and the northerly side of Sohier Street, Cohasset.

On February 4, 2008, Abbott Homes filed a Motion for Summary Judgment. Plaintiffs responded with an Opposition to Abbott Homes’ Motion for Summary Judgment on March 11, 2008 supported by the Affidavit of Jerome B. Carr, Ph.D. Abbott Homes then filed a Reply Brief on March 31, 2008 and plaintiffs filed a Supplemental Affidavit of Jerome B. Carr, Ph.D. on April 11, 2008.

Also on March 31, 2008, Abbott Homes filed a Motion to Strike Jerome Carr’s Affidavit, ¶ 3 (Last Half), and ¶s 8-12 on the grounds of inadmissibility and relevance, as well as a Motion to Strike Plaintiffs’ Statement of Undisputed Material Facts on the grounds of non-compliance with Land Court Rule 4.

These motions were argued on April 11, 2008, and are the matter presently before the Court.

Based on the record before me, I find the following facts:

Donald E. Staszke is an individual with an address of 380 Chief Justice Cushing Highway, Cohasset. He is trustee of Cohasset Realty Trust. Cohasset Realty Trust is a trust with an address of 380 Chief Justice Cushing Highway, Cohasset. Plaintiffs are owners of certain parcels of property located on the easterly side of Sohier Street, Cohasset.

Abbott Homes Cohasset, LLC is a Massachusetts Limited Liability Company, with a place of business at 84 State Street, Boston. Abbott Homes is the owner of two (2) parcels of property located at 230 Sohier Street and the northerly side of Soheir Street, Cohasset.

The plaintiffs’ property is adjacent to the two Abbott Homes’ properties. On March 7, 2007, Abbott Homes applied for a special permit to construct a cluster development on its two parcels.

Abbott Homes caused a Layout Plan, dated March 7, 2007, and a Definitive Residential Cluster Development District Special Permit Site Plan, dated April 13, 2007, to be drafted regarding the Cluster Development. Abbott Homes also commissioned an Engineering Report, dated June 25, 2007, for the development.

On October 17, 2007, Abbott Homes had the Massachusetts Department of Environmental Protection complete a Form 11-Soil Suitability Assessment of On-Site Sewage Disposal for its two properties.

On October 17, 2007, the Board voted to grant the special permit. The special permit imposed certain requirements on Abbott Homes, pursuant to Town of Cohasset Bylaws §§ 10.13(2)(c) and 10.12(4), including requirements for the drainage of water from the Cluster Development.

On December 19, 2007, Abbott Homes caused a Drainage Plan to be calculated and completed. This plan includes a number of detention basins for the collection of water runoff, in order to prevent such runoff from flooding adjacent property. Detention Basin C is the relevant basin in that its raison d’être would be to prevent flooding on the plaintiffs’ property. This plan also includes a Swale along the border adjacent to the plaintiffs’ land, also intended to divert water runoff away from the plaintiffs’ property and into Basin C.

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A property owner deemed by the town to be affected by a petition concerning the use of real property is, pursuant to G. L. c. 40A, § 17, an “aggrieved person.” Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1958). Under G. L. c. 40A, § 11, such a person, is presumed to have standing to seek judicial review of a discretionary board’s decision. Id.; Waltham Motor Inn. Inc. v. LaCava, 3 Mass. App. Ct. 210 , 214 (1975). This presumption is rebuttable, however, and "recedes when a defendant challenges a plaintiffs’ status as an aggrieved party and offers evidence to support his or her challenge.” Watros v. Greater Lynn Mental Health & Retardation Assoc.. Inc., 421 Mass. 106 , 111 (1995). Once rebutted, plaintiff must put forth credible evidence to substantiate claims of injury to their legal rights.

In order to demonstrate standing, a plaintiff must produce evidence of credible, “direct facts and not [] speculative personal opinion—that injury is special and different from the concerns of the rest of the community. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). The harm must be particularized to the plaintiff, and “not merely reflective of the concerns of the community.” Denneny v. Zoning Bd. Of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). Accordingly, “a general civic interest in the enforcement of zoning laws…is not enough to confer standing.” Id. at 215.

A plaintiff need not show a substantial likelihood of harm greater than that which could result from a use of the property permissible as of right. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 724 (1996). However to have standing, plaintiff must be able to demonstrate more than mere speculation, “that there has been some infringement of his legal rights.” Denneny, 59 Mass. App. Ct. at 211. Conjecture, personal opinion, and hypothesis, are not sufficient to substantiate standing. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). The plaintiff must provide factual support for his claim of particularized injury, sufficient for “a reasonable person…to conclude that the claimed injury likely will flow from the board’s action.” Id.; see Marashlian, 421 Mass at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994).

In the present case, plaintiffs are abutters and aggrieved persons and, accordingly, benefit from the presumption of standing from the outset. However, Abbott Homes has challenged plaintiffs’ standing. Abbott Homes contends that the plaintiffs fail to make a claim of particularized harm to their property as a result of the board’s decision. The plaintiffs’ complaint raises the following issues: (1) the Board’s grant of the special permit allows the cluster development to span two parcels separated by a street in violation of the Cohasset Zoning Bylaws; (2) the Board’s grant of the special permit allows the cluster development to violate the open space requirements of the Bylaws; (3) the Board’s grant of the special permit allows the cluster development to violate the lot limit of the Bylaws for a residential cluster development; and (4) the Board’s grant of the special permit allows the cluster development to build a drainage system based on the Drainage Plan, containing erroneous engineering, which, plaintiffs contends, will result in a failure of the system and flooding and erosion of plaintiffs’ land.

It is clear that the first three issues do not constitute particularized harm to the plaintiffs but, instead, represent the plaintiffs’ interest in enforcing certain provisions of the Zoning Bylaws against the Board’s Decision. Such claims rise only to the level of a general community concern and, accordingly, are not sufficient to confer standing on the plaintiffs.

The fourth claim does assert that the Board’s action affects a particularized harm on the plaintiffs. Here, plaintiffs detail the alleged shortcomings of the Drainage Plan, which they contend will result in damage to their property. The plaintiffs allege that (1) the Drainage Plan is based, in part, on a seasonal high groundwater level, which was not determined according to required engineering standards; (2) the Drainage Plan is based, in part, on the TP40 Rainfall Atlas, which is obsolete and considerably inaccurate; and (3) the Drainage Plan includes retention ponds and a drainage swale of insufficient capacity to divert and collect run-off water away from the plaintiffs’ property. Plaintiffs’ entire basis for these contentions is the affidavit of Jerome B. Carr, Ph.D., the president and technical director of an environmental research and consulting firm.

Dr. Carr evaluates the various studies performed on Abbott Homes’ land in proposing and planning the cluster development. He disagrees with certain data and methods utilized in those analyses. Specifically, Dr. Carr opines that the project engineers improperly employed the Cornell Rainfall Atlas in calculating the water run-off. [Note 1] He further believes that the project engineers drafted an incorrect land use table for the post-development work tributary to the Swale and detention Basin C. [Note 2] However, Dr. Carr does not venture further in his evaluation other than to say that the data input was incorrect and that the results are, similarly, inaccurate. He does not state, affirmatively that his accurate data produces results that prove that the plaintiffs’ property will be harmed by the cluster development.

Dr. Carr also states that the project engineers failed to account for the fact that Basin C may backup into the Swale, thereby changing the calculations for the Swale’s capacity. He calculates that the actual high-water level in the Swale during a one hundred year, twenty-four hour storm would be 98.65 feet, leaving a 0.06 foot (0.72 inch) of bank in the Swale. Dr. Carr states that this is too little room for error; if there is further miscalculation in the Drainage Plan figures or some unforeseen natural factors decrease the capacity of these systems—such as snow accumulation, fallen trees, or animal burrows within the swale—the swale could overflow onto the plaintiffs’ property, in a time of extreme weather conditions. Dr. Carr similarly speculates that in the event of leaks in sewer or storm drain pipes, the resulting liquids could accumulate in the detention basins, which could, in turn, overflow onto the plaintiffs’ property, in the event of a storm directly following this chain of events.

Such theorizing is conjecture without grounding in any fact offered by the plaintiffs. Dr. Carr gives his professional conclusion, but does not show his work; he does not produce the computer models, reports, or computations that he has made in comparison with those commissioned by Abbott Homes that he labels erroneous. Further, Dr. Carr’s analyses appear to reach only the conclusion that in the most extreme conditions the Drainage Plan merely comes close to failure. Only in the event of further unseen error, un-preventable accident, or unforeseeable circumstances will the systems fail and cause harm to the plaintiffs’ property. Dr. Carr then concludes that the drainage plan will certainly result in harm to the plaintiffs’ property; however, he does so without any mathematical basis or other firm grounding. Instead, Dr. Carr makes a leap from his data to this conclusion. This data, at the most, suggests that the Drainage Plan may approach its failing point given the worst conditions. In the opinion of this Court, a reasonable person could not conclude that the Board’s grant of the Special Permit will result in harm to the plaintiffs’ property; Dr. Carr’s reports are simply not compelling. Accordingly, plaintiffs do not have standing. [Note 3]

For the reasons state above, the Court declines to consider the plaintiffs’ remaining claims.

The Court does not agree with Abbott Homes’ assertion that certain portions of the Affidavit of Jerome B. Carr are inadmissible because it contains statements made in the course of settlement negotiations. The Affidavit merely sets forth Dr. Carr’s understanding of the data utilized by the engineers in analyzing the cluster development. This information is not more specific, is not in any way an admission by any defendant, and thus, does not prejudice the defendants. Further, the Court does not agree that certain portions of the Affidavit are irrelevant to this case. Dr. Carr states his professional opinion that the septic system has the potential to contribute to the failure of the Drainage Plan. Accordingly, the Court, while not finding it persuasive, considered the entirety of the Carr Affidavit in reaching its Decision.

Similarly, the Court does not find that plaintiffs Statement of Undisputed Material Facts is in violation of Mass. R. Civ. P. Rule 56(e) or Land Court Rule 4. Although the document may have been formatted improperly, the purpose of the rules is to streamline the process thereby decreasing the work of the court. I find that the alleged facts that Abbott Homes take issue with are not material to the case, and thus, may be admitted without affecting its outcome. In any event, the Court weighed the evidence appropriately, given its lack of evidentiary support.

CONCLUSION

For the foregoing reasons, this Court concludes that the plaintiffs lack standing to bring this action, and need not consider further the merits of those claims. Accordingly, the Abbott Homes’ Motion for Summary Judgment is hereby ALLOWED.

Further, I conclude that the plaintiffs’ Affidavit is relevant and otherwise admissible and that the plaintiffs’ Statement of Undisputed Material Fact is properly considered by the Court. Accordingly, the Abbott Homes’ Motion to Strike Jerome Carr’s Affidavit, ¶ 3 (Last Half), and ¶s 8-12 is DENIED and the Abbott Homes’ Motion to Strike Plaintiffs’ Statement of Undisputed Material Facts is also DENIED.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: October 31, 2008