John Cross and Jane Parent (Cross/Parent/plaintiffs) initiated this appeal pursuant to G. L. c. 40A, § 17, [Note 1] seeking review of a decision of the Lynn Zoning Board of Appeals (Board/ZBA). That decision sustained the Building Commissioners (Commissioner) denial of plaintiffs request for enforcement of the City of Lynn Zone Ordinance (Zoning Ordinance) as it relates to Dabyabhai Patels (Patel/defendant) renovation and use of the property in question, 263 Lynnfield Street, [Note 2] Lynn, Massachusetts (locus). [Note 3] Plaintiffs contend that defendants interior conversion of the first floor of the locus from an office to a convenience store constitutes an alteration of a preexisting, [Note 4] nonconforming use, requiring the grant of a special permit by the ZBA.
However, the plaintiffs have failed to put forth credible evidence of a particularized aggrievement cognizable under the Ordinance. Consequently, defendants Motion for Summary Judgment will be allowed, while plaintiffs Cross- Motion for Summary Judgment will be denied.
The locus consists of a two-story building situated in a Business District. [Note 5] The parcel sits at the intersection of Lynnfield Street [Note 6] and Fair Oaks Avenue. There are parking spaces to the rear of the store, with access from Fair Oaks Avenue. It is uncontested that the use of the structure is nonconforming. This nonconformity, however, derives from the second-story residential use, not from the first-floor commercial retail use, which is an as of right use in a Business District. [Note 7]
Defendant Patel (defendant) took title to the locus on July 28, 2006. [Note 8] Shortly thereafter, on August 4, 2006, he applied for a building permit to install counter tops, replace the floors, and erect a walk-in cooler with shelves, for the purpose of operating a convenience store. [Note 9] On August 16, 2006, the requested permit issued. [Note 10]
Plaintiff Cross resides at 266 Lynnfield Street, which is situated directly across the street from the locus. Plaintiff Parent resides at 271 Lynnfield Street which is approximately 150 feet from the locus, on the same side of Lynnfield Street.
In a letter dated March 28, 2007, plaintiffs requested that the Commissioner enforce the Citys Ordinance as regards the locus. [Note 11] In a responsive letter dated April 9, 2007, the Commissioner declined that request. [Note 12]
On April 18, 2007, plaintiffs timely appealed the Commissioners decision to the ZBA. [Note 13] While the appeal was pending, on May 4, 2007, Patel received an occupancy permit, sanctioning the operation of a convenience store at the Lynnfield Street locus. [Note 14] On June 19, 2007, the ZBA [Note 15] by a three-to-two vote, voted to uphold the Commissioners denial of plaintiffs request for enforcement. [Note 16]
On July 19, 2007, plaintiffs filed the present complaint, and on August 10, 2007, defendant Patel filed his answer. The defendant Patel filed a motion for summary judgment on February 14, 2008, and on February 15, 2008 plaintiffs filed their cross-motion. This court held a summary judgment hearing on April 1, 2008, at which time the motions were taken under advisement.
The defendants Motion for Summary Judgment seeks a disposition of this action on grounds of standing. During the course of discovery, interrogatories were propounded to each of the plaintiffs. The interrogatories sought to elicit from each the basis for his or her aggrievement.
Among the concerns expressed by the plaintiff Cross, were the following:
I have to live across from many lighted signs, including a large one which shines into my home at night . My ability to exit from my home on foot or by car is diminished by the illegal on street parking directly across from my house. The sidewalk [across the street, directly in front of the store] is blocked by a flag, a stand up lottery sign on the sidewalk and a trash barrel. Litter blows all over the neighborhood.
There have been many instances of vehicle accidents on this part of the state highway . People like me have to adjust their driveway [sic] and parking because of deliveries and illegal parking in front of the store which blocks the ability to see on-coming traffic. The increased convenience store traffic reduces the number of allowed parking spaces. The early morning deliveries disturb my quiet neighborhood and are not the same in their effect as the normal traffic usually traveling in my residential neighborhood.
A convenience store as ugly as this one diminishes the value of my home as such a use is unlike past use in its affect and out of keeping with the character of this kind of neighborhood.
My neighbors and I suffer the impact all day and night which the convenience store causes . [T]he store opens early stays open till late at night and brings many passersby to the place who take up parking illegally and impede my safety. [Note 17]
In turn, plaintiff Parent complained that upon returning home from work, she cannot safely access [her] driveway a few doors up from the store, because my vision is blocked by delivery trucks, and illegal parking in front of the store which constricts traffic flow. Moreover, when she walks her dog, [t]he sidewalk in front of the store, a few doors down the walk is blocked by a flag pole extending to the sidewalk at street level, [and] a lottery sign placed in the walkway. Eluding these obstacles, she must safely avoid cars parked in front or on the sidewalk on Fair Oaks [Avenue] without forcing [herself and her] dog into the state road. Upon returning home on these occasions, she must each day pick up lottery tickets, and trash from [her] yard which comes from that store. Finally, she spoke of diminished home value, by a business open the hours that it is, the noise it creates; the ugly grates they put up and the garish numerous signs with all kinds of products and services such as ATM, etc., advertised. [Note 18]
Prior to the summary judgment hearing, defendant filed an affidavit with this court on February 14, 2008, contesting plaintiffs' claims of diminished real estate values. The affiant, Thomas J. Lynch (Lynch), has been a licensed real estate broker in the City of Lynn since 1977. [Note 19] He states that he has taken part in hundreds of residential sales in the area relevant to the instant action. [Note 20] Upon investigating the impact that a convenience store at 263 Lynnfield Street would have on plaintiffs' property, Lynch found, using the market data or comparable sales approach, that there is no increase or decrease in the value of either [plaintiff's] property as a result of the presence of a convenience store at Locus. [Note 21] Also, Lynch observed that plaintiff Cross' driveway accesses a side street, Trevett Avenue, [Note 22] not Lynnfield Street. [Note 23] As to plaintiff Parent's lot, Lynch states that [t]he nearest corner of her lot is approximately 150 feet, along Lynnfield Street, from the nearest corner of Locus. [Note 24] Lynchs conclusions have not been satisfactorily challenged.
Summary Judgment Standard
Summary judgment is to be granted 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).
To meet his burden, the moving party need not proffer affidavits or other similar materials negating the opponents 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 partys 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 partys burden is that the court is to make all logically permissible inferences from the facts in the non-moving partys 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).
Finally, although the court may not pass on the credibility of witnesses or weigh the evidence, Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987), Mass R. Civ. P. 56(c) does permit the court to dispose 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 reveals no genuine factual dispute, material under the relevant law, which would preclude a legal determination of plaintiffs claim of standing. Accordingly, the case is ripe for summary judgment.
Persons aggrieved by a ZBA decision may seek judicial review of that administrative determination pursuant to G. L. c. 40A, § 17. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (Only a 'person aggrieved' may challenge a decision of a board of appeals). Without such aggrievement, this court lacks subject matter jurisdiction, and cannot reach the substantive issues presented in a claim. See Marrotta, 336 Mass. at 202-203 (The Superior Court had no jurisdiction to consider the case unless an appeal was taken by an aggrieved person.); Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (Standing as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver.); Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992) ( Aggrieved person status is a jurisdictional prerequisite for § 17 review).
Significantly enough, aggrievement has the same meaning whether a plaintiff seeks to nullify the grant of a special permit or variance, or seeks to compel a building inspector's enforcement of a relevant zoning ordinance. See Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 573 (1989) (We reject the view that the word 'aggrieved' as applied to a person means different things in different parts of G. L. c. 40A).
Although the words person aggrieved have a comprehensive meaning and are not constricted to a narrow signification, Godfrey v. Building Com'r of Boston, 263 Mass. 589 , 591 (1928), the party appealing [must have] some pecuniary interest, or some personal right, which is immediately or remotely affected .by the decree appealed from. Lawless v. Reagan, 128 Mass. 592 , 593 (1880). See also Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27 (2006) (a person aggrieved. . .must assert a plausible claim of a definite violation of a private right, a private property interest, or private legal interest ), quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). Ultimately, standing to challenge a zoning decision is conferred only on those who can 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. Id. At 30.
As parties in interest entitled to notice of ZBA proceedings under G. L. c. 40A, § 11, [Note 26] plaintiffs are cloaked with a rebuttable presumption of standing. Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957); Marashlian, 421 Mass. at 721 (Abutters entitled to notice of the zoning board of appeals hearing enjoy a rebuttable presumption they are persons aggrieved). This presumption, however, does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by throw[ing] upon his adversary the burden of going forward with evidence. Standerwick, 447 Mass. at 34, quoting Epstein v. Boston Hous. Auth., 317 Mass. 297 , 302 (1944) (internal quotations marks omitted). Cf. Watros v. Greater Lynn Mental Health and Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995) (presumption recedes when defendant challenges a plaintiff's status as an aggrieved person and offers evidence supporting his or her challenge).
Legal arguments and mere allegations are not sufficient to rebut the plaintiffs' presumed standing. Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003) (speculation [as to whether named grantor possessed proper] authority [to convey a parcel] on behalf of a trust is insufficient to rebut [the] presumption [of standing]).
That said, the plaintiffs' presumptive standing may be rebutted by means of evidence adduced in the course of discovery, including depositions and answers to interrogatories, as well as by expert affidavits. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (trustee's deposition testimony failed to show that the proposed project will impair any interests of the trustee that are protected by the zoning laws, rebutting plaintiffs' presumption of standing); Standerwick, 447 Mass. at 35 (through unchallenged affidavits of its experts, the developer established that the plaintiffs' claimed sources of traffic and drainage problems were unfounded); Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 622 (1993) (we treat these submissions [of plaintiffs' depositions] as effectively challenging the plaintiff's standing).
In this way, the defendants may rebut the plaintiffs' presumption of aggrievement either by providing affirmative evidencethat a basis for aggrievement is not well foundedor by showing, in the negative, that the plaintiffs lack any factual foundation for asserting a claim of aggrievement. See Standerwick, 447 Mass. at 35-36 ([t]he developer was not required to support his 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).
Here, we have precisely the type of rebuttal contemplated by the Standerwick Court. At the summary judgment phase, the defendant proffered an expert affidavit that effectively negated plaintiffs' claims regarding diminution of value. Moreover, the addition of plaintiffs' answers to interrogatories into the record allowed the defendant to rebut plaintiffs' other claims of aggrievement. As will be discussed at greater length below, plaintiffs' responses either cast doubt upon the particularized nature of their injuries, or called into question whether their putative injuries relate to right[s]...the [zoning] statute...intends to protect. Standerwick, 447 Mass. at 27-28.
Having rebutted the plaintiffs' presumption of standing, by contesting their bases for aggrievement with competent evidence, the presumption recedes, Tsagronis v. Bd. of Appeals of Wareham, 33 Mass. App. Ct. 55 , 58 (1992), and the point of jurisdiction will be determined on all the evidence with no benefit to the plaintiffs from the presumption as such. Marrotta, 336 Mass. at 204.
At this point, the burden of persuasion rests squarely with the plaintiffs' to demonstrate, not merely speculate, that there has been some infringement of [their] legal rights, Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003), and that [their] injury is special and different from the concerns of the rest of the community. Standerwick, 447 Mass. at 33, quoting Barvenik, 33 Mass. App. Ct. at 132 (internal quotations marks omitted). And, as noted above, plaintiffs must establish that the decision of the ZBA caused harm to an interest the zoning scheme seeks to protect. Standerwick, 447 Mass. at 32.
Although plaintiffs bear the burden of proving aggrievement, because [s]tanding is a gateway through which one must pass en route to an inquiry on the merits..., [plaintiffs are] not required to prove by a preponderance of the evidence that [their] claims of particularized or special injury are true. Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). Instead, plaintiffs must come forward with credible evidence to substantiate [their] allegations. Marashlian, 421 Mass. at 721. To qualify as credible evidence, a proffer must be of the type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's decision. Butler, 63 Mass. App. Ct. at 441. Nonetheless, whether a party is aggrieved is a matter of degree; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule. Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624 , 629 (1977) Bearing these lessons in mind, the court turns to the instant controversy.
(1) Lighted Signs
Plaintiff Cross lives directly across Lynnfield Street from defendant's convenience store. He asserts that the stores lighted signs impact the use and enjoyment of his property. Assuming this presents a discernible injury to Cross, the question remains whether it is cognizable as an injury to a specific interest that the applicable...bylaw is intended to protect. Standerwick, 447 Mass. at 30. I conclude that, in this instance, protection from an illuminated sign is not an interest that the zoning scheme is intended to protect. In 1993, the City of Lynn enacted An Ordinance Regulating Signs (Sign Ordinance). That Sign Ordinance is separate and apart from the Zoning Ordinance.27 The fact that the Sign Ordinance and the Zoning Ordinance are mutually exclusive indicates that signage issues and. their enforcement do not properly fall within the purview of the Zoning Ordinance. [Note 28] See Standerwick 447 Mass. at 27-28 (the right...asserted must be one the statute under which a plaintiff claims aggrievement intends to protect.)
It is well settled that a projects impact upon area parking and traffic may confer standing upon an aggrieved abutter. See Circle Lounge & Grille, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949) (in dispensing with plaintiff's argument relating to increased traffic, recognizing it as valid zoning interest under the right facts); Marashlian, 421 Mass. at 722 (fear [of ] increased traffic and decreased parking availability...[are] concerns...legitimately within the scope of the zoning laws); Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372 , 377 (1988) (recognizing increase in traffic result[ing] in congestion on abutter's street, leading to quarrels over scarce parking spaces establishes standing); Barvenik, 33 Mass. App. Ct. at 133 (legitimate zoning-related concerns [include] possible vehicular traffic increases [and] anticipated parking problems); Nickerson v. Zoning Bd. of Appeals of Raynham, 58 Mass. App. Ct. 680 , 682, n. 3 (2002) ([w]e...recognize that traffic concerns are legitimately within the scope of the zoning laws).
However, merely uttering the words, parking or traffic, without more, will not suffice to confer the requisite standing. One must adequately detail the manner in which a given project is likely to impact those protected interests. See Standerwick, 447 Mass. at 35 (through unchallenged affidavits of its experts, the developer established that the plaintiffs' claim...of traffic [was] unfounded) (emphasis added). But see Marashlian, 421 Mass. at 723 (plaintiffs must put forth credible evidence to substantiate claims of injury to their legal rights, which they did by showing that they utilize public street parking to meet their business and personal needs and proffering sufficient evidence at trial to establish that traffic...would increase, if minimally, and that some public parking spaces would be lost).
Furthermore, any traffic or parking related injuries must be distinguishable from those encountered by the neighborhood or community at large. See Nickerson, 53 Mass. App. Ct. at 683-684 (emphasizing traffic harm felt by abutter must be different and special from that sustained by entire community to maintain § 17 action); [Note 29] Butler, 63 Mass. App. Ct. at 442 (evidence indicating increase in traffic did not support plaintiffs' claim that queues would adversely affect their ability to leave their driveway during peak hours) (emphasis added).
Finally, even assuming a particularized injury, the harm [must be] of a type against which the Act is intended to protect. Bedford, 25 Mass. App. Ct. at 378. Indeed, not all parking and traffic issues will necessarily implicate zoning related principles. Rather, such issues may simply raise questions of traffic law and enforcement. I conclude that concerns raised by Cross with regard to illegal parking fall within the latter category. Thus, Cross allegations that illegal on street parking obstructs his ability to exit his residence on foot or by car will not suffice to confer standing. Even if such parking were cognizable under the zoning scheme however, there is no support on the record for the underlying allegations.
Plaintiff Cross also objects to having to adjust his driveway [sic] and parking because of deliveries and illegal parking in front of the store which blocks [his] ability to see on-coming traffic. Once again, this assertion finds no evidentiary support in the summary judgment record. In like fashion, Parents claim that she cannot safely access [her] driveway..., because her vision is blocked by delivery trucks [Note 30] and illegal parking in front of the store which constricts traffic flow, is conclusory, unsupported by detail, and is not sufficiently particularized.
Finally, plaintiff Cross suggests that, because of increased convenience store traffic, there are fewer legal parking spaces. This assertion too, exemplifies the unsubstantiated claims or speculative personal opinions that cannot confer standing. Denneny, 59 Mass. App. Ct. at 212. First, this conclusory statement fails to demonstrate how Cross is injured by virtue of the convenience store. By admission, he has a driveway, a place upon which he might park his car on his own property. At that, the driveway accesses onto a side street on the other side of Lynnfield Street. Thus, Cross concerns in this regard appear at best, to be merely reflective of the [those] of the community. Id. at 211.
Second, he does not explain how this alleged decrease in legal parking is the proximate result of the construction project [he] challenge[s]. Barvenik, 33 Mass. App. Ct. at 138. He simply states that this as of right project causes a decrease in available parking, without explaining where or how available public parking is impacted by the store; nor does he explain whether or how such parking concerns impact him personally. In sum there is an absence of detail with regard to the issue of public parking. Once again, such statements will not suffice to provide the requisite standing.
(3) Motor Vehicle Accidents
Plaintiff Cross makes reference to many instances of vehicle accidents on this part of the state highway. Although it is true that land use regulations are adopted to stabilize property uses in specified districts in the interests of the public health and safety, Kane v. Bd. of Appeals of Medford, 273 Mass. 97 , 104 (1930) (emphasis added), this statement utterly fails to link...the bylaw and [himself] by producing evidence of actual...impact on [his] property. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545 (2008). As such, [t]hese fears, based on [no] evidence, are [both] speculative [and] too remote to make [plaintiff] 'aggrieved.' Marashlian, 421 Mass. at 723.
(4) Trash Barrel and Flag
Both plaintiffs complain of a trash receptacle, a stand up lottery sign, and a flag [Note 31] in front of the convenience store, which purportedly obstruct the sidewalk in front of the store. Assuming for the sake of argument that these purported sidewalk obstructions are cognizable under the zoning laws, plaintiffs have still failed to demonstrate how these items across the street from the Cross parcel, or approximately 150 feet or more from the Parent parcel, infringe a private right...created by zoning regulations...bear[ing] a rational relation to the situation and use of the plaintiff[s'] propert[ies]. Circle Lounge, 324 Mass. at 431. In lodging this claim, plaintiffs have failed to show that their interests in an unobstructed sidewalk in front of the neighborhood corner convenience store is special and different from [that of] the community at large. Butler, 63 Mass. App. Ct. at 440. Accordingly, the presence of a trash receptacle, sign and flag on the sidewalk in front of the store do not constitute a cognizable grievance under the zoning law.
Ironically, while the plaintiffs object to a trash receptacle in front of the locus, they also object to certain litter, which they assert, is attributable to that locus. Cross' complaints in this regard, can be resolved in summary fashion as they explicitly identify community-wide concerns, rather than the purported infringement of a private right. See Harvard Sq. Defense Fund, 27 Mass. App. Ct. at 493 (matters of general public concern [are] appropriately addressed by...administrative proceedings). His criticism that [l]itter blows all over the neighborhood expresses a general civic interest [which] is not enough to confer standing. Id. at 495-496. Parent's objection, however, requires further analysis.
Plaintiff Parent alleges that she has had to pick up lottery tickets and trash from [her] yard which comes from that store. Barvenik lists, in passing, the potential for litter as one of several legitimate zoning-related concerns. Barvenik, 33 Mass. App. Ct. at 133. The Barvenik Court however, observed that a plaintiff must nonetheless offer more than conjecture and hypothesis to show that a claimed grievance is causally attributable to the permitted development. Id. at 133 & 139. The Court further observed that at the pleading stage, general factual allegations of injury resulting from the defendants conduct may suffice. However, in response to a summary judgment motion, the plaintiff may no longer rest on mere allegations, but must set forth specific facts by affidavit or other evidence. Id, at 132.
While it is true that Parents claim of injury rises above mere conjecture, she offers only speculative personal opinion as to its source, i.e. from the store. Moreover, other than a mention of lottery tickets, no detail is provided as to the nature and volume of any litter, or how it came to reside in Parents yard. See Standerwick, 447 Mass. at 33. At the same time, it is uncontroverted that Parent's property is 150 feet from locus at the closest point. See Circle Lounge, 324 Mass. at 430 (disposing of a litter argument because of the distance between locus and plaintiff's property). Given Parents distance from the locus, and the presence of intervening parcels between her and the store, it is critical that she adequately detail her injury and the manner in which it differs from the concerns of the neighborhood at large. [Note 32] This she has failed to do. Under the present circumstances any litter related aggrievement could best be addressed through enforcement of police, trash or health regulations. In sum, I conclude that litter provides neither plaintiff with a cognizable claim of aggrievement.
Plaintiff Cross objects to early morning deliveries disturb[ing his] quiet neighborhood. However, this passage fails to provide a factual basis for aggrievement.
Although freedom from added noise can be a cognizable interest under zoning law, Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) (recognizing increased noise as a concern relating directly to the objectives of the density regulation at issue), it is incumbent upon the plaintiff to demonstrate how the noise resulting from a development injures him with particularity. Here, plaintiff Cross's statement is couched in the language of neighborhood. At best, it speaks to the effect of the locus on his community, not upon him individually. Consequently, Cross has failed to proffer any evidence that the alleged disturbances occasioned by the early morning deliveries, infringe upon a private right, a private property interest, or a private legal interest. Harvard Sq. Defense Fund, 27 Mass. App. Ct. at 493.
(7) Aesthetic Considerations
Appellate courts of the Commonwealth have hesitated to recognize purely aesthetic concerns as a cognizable interest under the zoning law. See Opinion of the Justices, 234 Mass. 597 , 604 (1920) ([i]t has been decided quite generally, if not universally, by courts in which the question has been raised, that aesthetic considerations alone or as the main end do not afford sufficient foundation for imposing limitations upon the use of property under the police power); Barvenik, 33 Mass. App. Ct. at 132-133 (including impairment of aesthetics or neighborhood appearance in the list of insufficient bases for aggrievement under Massachusetts law); Denneny, 59 Mass. App. Ct. at 213 (anticipation that there will be aesthetic deterioration...is beyond the scope of interests protected by the Zoning Act).
Even where the Appeals Court concluded that a municipality created and defined a protected interest by inclusion of an express provision relating to the visual impact of a project on a neighborhood within the bylaws, it was careful to distinguish this interest from some generalized interest in the aesthetic integrity of the community. Monks, 37 Mass. App. Ct. at 688 (recognizing, but for express provision in bylaws concerning effect of proposed tower on the visual character or quality of the neighborhood, plaintiffs' claim of visual impact might be dismissed as aesthetic sensitivity insufficient to impart standing).
Here, Cross speaks of a convenience store as ugly as this one [diminishing the value] of [his] home, while Parent references the ugly grates which she encounters. [Note 33] However, these statements do not confer standing because they articulate aesthetic concerns that are unanchored to legitimate zoning interests.
(8) Diminution of Value
Lastly, plaintiffs speak of diminished property values owing to the appearance or operation of the convenience store. Defendant has, in turn, proffered an expert affidavit contesting such claims and concluding there is no increase or decrease in the value of either Subject Property as the result of the presence of a convenience store at the Locus. [Note 34] The plaintiffs have failed to controvert the statements therein with competent evidence of any sort.
For the foregoing reasons, I conclude that plaintiffs have failed to demonstrate that they have been aggrieved pursuant to G. L. c. 40A, § 17. Consequently, this court lacks jurisdiction to reach the merits of the plaintiffs' case.
Accordingly, it is hereby
ORDERED that the defendant's Motion for Summary Judgment be, and hereby is, ALLOWED. Plaintiffs Cross Motion for Summary Judgment is hereby DENIED.
Judgment to enter accordingly.
By the Court. (Grossman, J.)
Attest: Deborah Patterson
Dated: November 6, 2008
[Note 1] By Complaint filed on July 19, 2007.
[Note 2] A state highway.
[Note 3] See ZBA's Letter of Decision (decision), dated June 9, 2007; Complaint Exh. A.
[Note 4] See Plaintiffs' Motion for Summary Judgment, ¶ 2.
[Note 5] See City of Lynn Zone Ordinance [Ordinance], § § 3.1 & 3.2, which establish the various zoning districts and authorize the creation of an official Zoning Map for the City of Lynn (zoning map). Perusal of the zoning map indicates that the locus is within a Business District. It appears however, that of the relevant parcels, it is only the locus that zoned for business use. The surrounding parcels are all within a single-family residential district.
[Note 6] See Affidavit of Thomas J. Lynch of Lynn, a licensed real estate broker who describes Lynnfield Street as a very busy, main thoroughfare; it is a state road numbered route 129. It runs to a large rotary from which one may travel onto Route 128/Interstate 95 and/or Route 1 . Parking of motor vehicles is not allowed on Lynnfield Street .
[Note 7] See Zoning Ordinance, § 4.1.1, which requires a special permit for a residential, One family detached house, use in business districts. But see § 4.4.1, which allows defendant's commercial use, Retail store, as a matter of right.
[Note 8] Memorialized by deed recorded at Book 25932, Page 517 with the South Essex Registry of Deeds.
[Note 9] See Building Permit (permit), attached as Ex. C to Defendant's Opposition Brief to Plaintiffs' Motion for Summary Judgment.
[Note 10] Id.
[Note 11] See Letter from Attorney Samuel A. Vitali to Michael J. Donovan, dated March 28, 2007, (request for enforcement), attached to Plaintiffs' Brief in Support of Motion for Summary Judgment as Exh. C. The letter raised concerns about square footage, use, and the adequacy of on-site parking. Id.
[Note 12] See Letter from Michael J. Donovan, dated April 9, 2007, (decision denying request for enforcement), attached to Plaintiffs' Brief in Support of Motion for Summary Judgment as Exh. D. The letter suggested that the locuss mixed use was preexisting, and that on-site parking was ample for this mixed use. Id. Upon inspection, the Commissioner did, however, find signage at locus in violation of the citys sign ordinances. Id. He indicated that he would issue citations, and compel removal of the offending signs. Id.
[Note 13] See plaintiffs' Petition to Zoning Board of Appeals for Appeal of Building Commissioner's Refusal to Enforce Zoning Ordinances (appeal to ZBA) , filed with the city clerk on April 18, 2007, attached to Plaintiffs' Brief in Support of Motion for Summary Judgment as Exh. P. The Supporting Statements appended to the appeal argue that the locus violates the parking requirements of the Ordinance, both as to number and design of spaces. Further, as the locus was previously an office and now a store, it is argued that there has been an alteration of a preexisting, nonconforming use requiring a special permit. Id.
[Note 14] See Occupancy Permit, attached to Plaintiffs' Brief in Support of Motion for Summary Judgment as Exh. M.
[Note 15] See supra note 2.
[Note 16] Id.
[Note 17] Plaintiff John Cross's Answers to Defendant's First Set of Interrogatories Propounded by Defendants (plaintiff Cross's answers to interrogatories), pp. 5-7.
[Note 18] Plaintiff Jane Parent's Answers to Defendant's First Set of Interrogatories Propounded by Defendants (plaintiff Parent's answers to interrogatories), p.6.
[Note 19] Affidavit of Thomas J. Lynch, (Lynch Affidavit) p. 1-2.
[Note 20] Id., p. 2.
[Note 21] Id., p. 5.
[Note 22] Trevett Avenue is across the street from the locus, approximately perpendicular to Lynnfield Street.
[Note 23] Lynch Affidavit, p. 3.
[Note 24] Id., p. 4.
[Note 25] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purposes. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323-324.
[Note 26] . Section 11 states, inter alia, '[p]arties in interest. . .shall mean petitioners, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner. G. L. c. 40A, § 11. Plaintiff Cross lives directly across the street from locus, and plaintiff Parent resides approximately 150 feet down the street from locus.
[Note 28] See Deposition of Michael J. Donovan, Lynn Building Commissioner, pp. 9-12 & p. 65, as to nature and scope of the Sign Ordinance, and the issuance of enforcement citation or order thereunder.
[Note 29] In Nickerson, the Appeals Court wrote,
While the plaintiff undoubtedly is inconvenienced by the heavy traffic on Route 44 and understandably would like his concerns to be addressed by the town, this evidence is an insufficient predicate for finding that he is a 'person aggrieved' by the granting of a special permit[, because his] interest is not substantially different from those of all of the other members of the community who are frustrated and inconvenienced by heavy traffic on Route 44. Id. at 683-684.
[Note 30] One may logically conclude that delivery trucks are precluded from parking on Lynnfield Street at the locus, as are other motor vehicles.
[Note 31] Refer to Affidavit of Building Commissioner in which he states that a flag is considered a sign under the Lynn Sign Ordinance. Consequently, both the flag complained of as well as the stand up lottery sign are cognizable under the Sign Ordinance.
[Note 32] Plaintiff Cross argues that litter blows all over the neighborhood.
[Note 33] Both defendants raise aesthetic concerns in conjunction, however, with diminished residential values.
[Note 34] See Lynch Affidavit, p. 5.