PS 08-383356

February 3, 2009


Scheier, J.



In these actions, brought pursuant to G. L. c. 40A, § 17, Plaintiffs appeal two decisions of the Wellesley Planning Board (Board) granting Defendant NDNE Lower Falls, LLC, two special permits in connection with a proposed mixed-use development on a 5.27 acre parcel of land located at 27 Washington Street, Wellesley (Property). NDNE plans to construct a development that would include 141 housing units in two buildings and a two-story commercial building with 16,000 square feet of office space and over 17,000 square feet of retail space.

In order to develop this project NDNE requires several permits from the Town, including a Residential Incentive Overlay Special Permit (RIO Permit) and a Project of Significant Impact Special Permit (PSI Permit). In June of 2008, after a duly-noticed public hearing, the Board granted NDNE’s applications for the RIO Permit and the PSI Permit and the decisions were filed with the Town Clerk on June 17, 2008. On July 7, 2008, Plaintiffs appealed those decisions to the Norfolk County District Court. On motion by NDNE, pursuant to G. L. c. 185, § 3A, these cases were transferred to the Permit Session of the Land Court on September 2, 2008.

On August 8, 2008, NDNE served on Plaintiffs notices of deposition, requests for production of documents, and a single expert interrogatory. Plaintiffs requested an extension of time to answer the expert interrogatory, to which NDNE agreed. When Plaintiffs did not respond, NDNE sent a final request for answers pursuant to Mass. R. Civ. P. 33, which Plaintiffs answered by stating that no experts had yet been identified and reserving their right to supplement the response at a later date. On November 7, 2008, during a telephone status conference, this court ordered Plaintiffs to provide a substantive answer to the expert interrogatory by November 30, 2008. Plaintiffs provided an answer identifying four experts they intended to call at trial and identifying in summary form only the substance of each expert’s expected testimony.

On December 18, 2008, NDNE filed Defendant NDNE Lower Falls, LLC’s Motion to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(1) and NDNE’s Motion for Sanctions Pursuant to Mass. R. Civ. P. 37(b)(2). This motion was supported by affidavits of John J. O’Neil, III, principal of NDNE and Kevin P. O’Flaherty, Esq., as well as excerpts from the depositions of Plaintiffs Martin F. Kane, Ellen E. Kane, and Margaret Griffin. Plaintiffs filed an opposition on January 27, 2009. [Note 1] Plaintiffs’ opposition did not include affidavits containing factual support for Plaintiffs’ claim of aggrievement. A hearing on both motions was held on January 27, 2009.

Defendant’s Motion for Sanctions pursuant to Rule 37(b)

Defendant argues that Plaintiffs have failed to adequately answer the one expert interrogatory propounded by Defendant, despite this court’s order that a substantive answer was due by November 30, 2008. Defendant contends that because Plaintiffs’ response is devoid of specific factual support for the conclusions drawn by each identified expert, the answer is insufficient. Plaintiffs, on the other hand, maintain that they have adequately answered the interrogatory under the standard set by Mass. R. Civ. P. 26, as the answer accurately reflects the state of their experts’ preparedness for trial at this time. This court agrees that Plaintiffs’ answer to the interrogatory is sufficient under Rule 26.

Mass. R. Civ. P. 26(b)(4)(A)(i) requires that a party may require the other party to “identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Defendant’s interrogatory requested with regard to each person Plaintiffs expected to call as an expert witness:

(a) the identity of the person,

(b) the subject matter on which the person is expected to testify,

(c) the substance of the facts and opinions to which the person is expected to testify,

(d) a summary of the grounds for each such opinion, and

(e) the person’s qualifications to render each such opinion

Plaintiffs have supplied sufficient information in their December 1, 2008, answer to be compliant with the standard set by Rule 26. This court is persuaded that at least at this point in discovery, Plaintiff is not required to provide a more detailed response in light of a request that seeks ‘subject matter,’ ‘substance’ and ‘summary.’” See e.g., Metropolitan Property & Casualty Insurance Co. v. Daher, 1996 WL 1185152, *1 (Mass. Super. Jan. 31, 1996). Therefore, Defendant’s motion for sanctions pursuant to Rule 37(b)(2) is denied.

Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(1)

Defendant NDNE next asserts that Plaintiffs have failed to establish standing in the face of NDNE’s challenge to Plaintiffs’ presumptive standing. [Note 2] Plaintiffs contend that Defendants have not adequately challenged Plaintiffs’ presumed standing sufficiently to shift the burden to Plaintiffs.

“Standing is an issue of subject matter jurisdiction.” Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998). Under G. L. c. 40A, only a “person aggrieved” may have standing to appeal the decision of a board of appeals or planning board. “To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury.” Slama v. Attorney General, 384 Mass. 620 , 624 (1981). The injury alleged must be established “by direct facts and not by speculative personal opinion” and must be “special and different from the concerns of the rest of the community.” Barnevik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). Further, “the plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).

Under G. L. c. 40A, § 11, plaintiffs who are parties-in-interest have the benefit of a rebuttable presumption that they are aggrieved persons. Defendant may rebut this presumption by offering “evidence warranting a finding contrary to the presumed fact.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006). “Once a defendant challenges the plaintiff’s standing and offers evidence to support the challenge . . . the jurisdictional issue is to be decided on the basis of all of the evidence with no benefit to the plaintiff from the presumption.” Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 89 (2007) (citing Standerwick, 447 Mass. at 34).

In the instant case, Defendant has submitted excerpts from Plaintiffs’ depositions where Plaintiffs have stated that their claims of harm are due to water contamination and traffic. These allegations are required to be supported by expert evidence, but through their depositions, Plaintiffs admit that their conclusions are based on their own opinion. Plaintiffs’ own deposition testimony is sufficient to rebut Plaintiffs’ presumption of standing and shift the burden to Plaintiffs to show factual support for their claim of aggrievement. See Standerwick, 447 Mass. at 35-36 (citing Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that a defendant may use a plaintiff’s deposition testimony to challenge presumptive standing.)).

Once presumptive standing has been properly challenged, “a rule 12(b)(1) motion supported by affidavits places the burden on the plaintiff to prove jurisdictional facts.” Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004) (quoting Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002)). “Under this factual challenge to the jurisdiction, the plaintiff’s jurisdictional averments in the complaint are entitled to no presumptive weight and the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties.” Hiles, 437 Mass. at 516 (quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (internal quotations omitted)).

Because Plaintiffs’ opposition to Defendant’s 12(b)(1) motion was not timely filed, Plaintiffs have offered nothing to counter Defendant’s rebuttal of this presumption. However, even if this court were to consider Plaintiffs’ opposition, the result would be the same. [Note 3] Plaintiffs submitted no affidavits by any experts asserting any factual basis for Plaintiffs’ claim of standing. While Plaintiffs did submit a copy of their answers to the Defendant’s expert interrogatory stating each expected expert’s conclusion regarding aggrievement, those conclusions were not the kind of credible evidence necessary to establish standing. It appears that Plaintiffs believe that because their answers are sufficient under Rule 26 that they are the kind of evidence required to establish standing. While this court has found that Plaintiffs answers are sufficient to avoid sanctions under Rule 37, it does not necessarily follow that they are the kind of credible evidence that is required to establish standing in the face of at 12(b)(1) challenge. Indeed, this court finds that they are not.

It is well-settled that credible evidence has both a quantitative and a qualitative element. “Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, 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 v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (emphasis added) (citing Marashlian, 421 Mass. at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994)). Plaintiffs’ submissions are devoid of any factual support for the conclusions of aggrievement. Even their experts’ conclusions are factually unsupported, as they anticipate studies and reviews not yet performed. This conjecture and hypothesis is not quantitatively or qualitatively sufficient to establish standing in the face of Defendant’s challenge under Mass. R. Civ. P. 12 (b)(1). Accordingly, this court finds that Plaintiffs have failed to allege any harm as a basis for standing to bring these actions. Therefore, Plaintiffs’ complaints must be dismissed.

As a result of this order, the pre-trial conference, previously scheduled for February 9, 2009, at 2:00 p.m., will not take place.

Judgments to issue accordingly.

By the Court. (Scheier, C.J.)


Deborah J. Patterson


Dated: February 3, 2009


[Note 1] Plaintiffs’ opposition was not timely under Land Court Rule 4, as the filing date for opposition to the 12(b)(1) motion was January 19, 2009. The filing deadline for the Rule 37(b)(2) motion, to which Land Court Rule 4 does not apply, was January 26, 2009. Plaintiffs’ opposition purported to address both motions and was received by the court after the close of business for the day. Accordingly, it was time stamped the next morning, on the day of the hearing, at 8:47 a.m.

[Note 2] All parties agree that Plaintiffs are either abutters to the Property or abutters to abutters, within 300 feet of the Property. As such, they are all parties-in-interest under G. L. c. 40A, § 11, and enjoy a rebuttable presumption of standing.

[Note 3] In their opposition, Plaintiffs allege they have “consulted experts who have training and expertise in the relevant fields.” They also point to their answer to the expert interrogatory as evidence of their aggrievement.