MISC 348698

February 19, 2009

ESSEX, ss.

Grossman, J.


The present lawsuit centers on an appeal under G.L. c. 40A, § 17 from a decision of the Gloucester Zoning Board of Appeals (ZBA) reversing the Building Inspector’s (Inspector) denial of a foundation permit for Mark Gossom and Shelly Gossom, (defendants/ Gossoms). Further, plaintiffs seek a declaration pursuant to G. L. c. 231A, §§ 1-9 that (a) John and Lisa Del Torchio (plaintiffs/Del Torchios) hold a fee interest to the midpoint of a disputed right of way, [Note 1] as well as an easement along its length pursuant to G. L. c. 183, § 58, [Note 2] and (b) that the Gossoms are impermissibly interfering with these interests.

The property issues in this matter are entwined with the zoning appeal. The chains of title of both parties refer to a 40 foot wide right of way. Over the years, a gravel driveway has been constructed over a portion of that way. Pursuant to both plaintiffs’ and defendants’ ANR plans, that driveway provides the requisite frontage for their respective parcels. Plaintiffs argue that the ANR Endorsement received by the defendants rendered the Gossoms’ Front Lot nonconforming. They further argue that the resulting “infectious invalidity” requires a variance before the Gossums may build on their Rear Lot. Lastly, plaintiffs allege that under G. L. c. 183, § 58, they own to the mid point of the 40 foot wide right of way, and hold an easement over the entirety of the way. They assert too, that the defendants are impermissibly interfering with these rights by occupying portions of the right of way.

In their Motion for Partial Summary Judgment, the defendants question the plaintiffs standing to pursue the § 17 component of their lawsuit. They question too, whether plaintiffs’ allegation of infectious invalidity may stand with regard to the Gossoms’ Rear Lot [Note 3] for which the ZBA approved the foundation permit. Lastly, defendants contest the notion that the boundary line of the right of way at issue may be the line of demarcation for determining the front setback of their residence.

For their part, the plaintiffs, by virtue of their Cross Motion for Summary Judgment, address the issue of standing, the validity of the underlying ZBA decision, their alleged ownership to the mid-point of the private way under G. L. c. 183, s 58, and the extent of their deeded rights in the private way.

While defendants contend that plaintiffs lack the requisite standing, they argue that, even if such standing were present, the ZBA decision is unassailable because there was no infectious invalidity. The defendants argue in this regard, that neither of their parcels is nonconforming, and even if that were not so, it was not their subdivision that rendered the Front Lot nonconforming. “Regardless of whether there was a division of the lots,” argue the defendants “the alleged frontage setback violation was in no manner impacted by said division.”

Returning to the issue of standing, plaintiffs contend that the submission of extracts from their deposition testimony alone cannot rebut their presumption of standing as direct abutters. Failing this argument, plaintiffs suggest that an affidavit given by Lisa Del Torchio provides sufficient factual basis so as to allow this court to find cognizable aggrievement to the plaintiffs.

Based upon the summary judgment record, this court concludes that defendants’ submission of plaintiffs’ deposition testimony constitutes evidence sufficient to rebut the latter’s presumption of standing. Moreover, although plaintiffs invoke legitimate zoning interests, to wit, density and traffic, they fail to establish specific facts upon which a reasonable person could find that the harm as alleged would flow from the ZBA’s decision. In short, plaintiffs’ deposition testimony and affidavit fail to elevate their concerns beyond the realm of speculation. As such, Count I of the Complaint implicating the members of the Gloucester Zoning Board of Appeals as parties to this action will be dismissed.

As to the remaining counts and the plaintiffs’ Cross Motion for Summary Judgment, the movants have stipulated that their respective chains of title appear in their entirety in the summary judgment record. Having reviewed the relevant documents, this court determines that the Derelict Fee Statute is not here applicable. Consequently, the plaintiffs do not enjoy title in any portion of the private right of way. Rather, I conclude that the defendants possess a fee interest in the disputed right of way subject to plaintiffs’ deeded easement.

As to other issues raised in Counts III, IV and V of the Complaint, there remain genuine issues of material fact which have yet to be adequately developed. Consequently, this case will proceed to trial on those outstanding matters.

Background and Procedural History

The private parties to this action are neighbors. The plaintiffs, the Del Torchios, reside at 3 Ferry Lane, Gloucester, and the defendants, the Gossoms, at 11 Ferry Lane. [Note 4] The plaintiffs’ title is derived from a deed of March 27, 1989, as recorded with the Southern Essex District Registry of Deeds (Registry) at Book 9938, Page 270. Plaintiffs’ property is described as follows:

A certain parcel of land with the building(s) thereon known as 3 Ferry Street, Gloucester, Essex County, Massachusetts as shown as Lot A-1 on “Subdivision Plan of Land in Gloucester, Massachusetts, Prepared for Bruce A. & Ruth A. Whilton…, recorded as Plan 33 in Plan Book 247, to which plan reference is hereby made for a more particular description.

Said Lot A-1 contains 44, 336 ± square feet, according to said plan. [Note 5]

The referenced plan depicts a parcel, the western boundary of which consists of a 40 foot right of way (right of way). [Note 6] The plaintiffs’ deed also includes language regarding this right of way:

Together with the right to use, in common with others entitled thereto, the said private road 40 feet wide, of which only a part has been constructed, along the westerly boundary of the granted premises, for all purposes for which public ways are commonly used in the City of Gloucester, which right of way is shown on said Plan referenced above.

Being a portion of the premises conveyed to the Grantors by deeds recorded with the Essex South Registry of Deeds in Book 7504, Page 564 and 565.

Although the plaintiffs’ lot otherwise fronts on Ferry Street, it is through a 10 to11 foot wide [Note 7] gravel driveway (driveway) built upon the eastern most portion of the right of way, that plaintiffs’ property accesses that public street.

Title to the defendants’ property, in turn, derives from a deed of June 3, 1999, which was recorded with the Registry at Book 15732, Page 366 on June, 10, 1999. [Note 8] That instrument describes said property as follows:

…[A] certain parcel of land situated on the Northerly side of Ferry Lane, now known as Ferry Street in Gloucester, Essex County, Massachusetts, and being shown as Lot 120 (excluding 1440 square feet thereof as hereinafter mentioned) on a plan entitled “Plan of Land in Gloucester, Mass. property of Riverview Landing, Inc….which plan is recorded at the Essex South Registry of Deeds, Plan Book 98, Plan 78. Said parcel is more precisely bounded and described as follows:

SOUTHERLY by Ferry Street, 143.81 feet, more or less, according to said plan;

EASTERLY by the easterly sideline of a right of way as shown on said plan 190.90 feet at land now or formerly of Elizabeth B. Courant and 93.00 feet by a rectangular parcel of land containing approximately 1440 square feet;

NORTHERLY in part by lot 115 as shown on said plan, 101.68 feet; and in part by land marked “Riverview Landing, Inc. lots 73-99” 40.69 feet; and WESTERLY by lots 116, 118 and 119 as shown on said plan, 389.69 feet.

LOCUS: Lot 120, Ferry Street, Gloucester, MA.

Said parcel includes the fee in the RIGHT OF WAY on said plan. The rectangular area of approximately 1,440 square feet situated easterly of the RIGHT OF WAY and which has 16.12 feet of frontage on Ferry Street is not contained within the above land description and is expressly excluded from this conveyance. (emphasis added)

Unlike the plaintiffs’ property, defendants’ parcel both has frontage on Ferry Lane and obtains direct access from the same. The parties are abutters as to the northern, rear portions of their properties. [Note 9]

On June 3, 1999, the defendants applied for a building permit in order to construct their primary residence. [Note 10] The City of Gloucester Building Department (Building Department) concluded that the Gossoms’ lot and proposed structure were compliant with the City’s zoning ordinance and so issued the necessary permit. [Note 11] According to a plan of September 9, 2005, [Note 12] drafted in conjunction with the Gossoms’ ANR application, discussed infra, the Gossoms’ home is approximately 50 feet from their easterly property line. [Note 13] The near edge of the driveway is approximately 35 feet from their residence. The near edge of the right of way, however, is only about 10 feet from that dwelling.

In July, 2005, the Del Torchios filed a “Form A” application with the Planning Board, seeking to divide their property into two lots, one for their home (Del Torchio Lot 1) and another upon which stood their garage, a structure which they intended to convert into a residential rental unit (Del Torchio Lot 2). [Note 14] According to the plan submitted with the application, [Note 15] the driveway provides both Del Torchio Lots with their sole means of access to Ferry Street. The Planning Board, in July 2005, endorsed the site plan Approval Not Required under the Subdivision Control Law. [Note 16]

In February 2006, the Gossoms submitted their own “Form A” application to the Planning Board, based on the aforementioned plan. [Note 17] As was the case with the Del Torchios, the Gossoms proposed to divide their parcel into two lots, the front lot containing their existing home (Front Lot) and the rear lot on which a second dwelling would be constructed (Rear Lot). [Note 18] Per the plan, the Rear Lot obtains its frontage from the driveway. [Note 19] On March 13, 2006, the Planning Board endorsed said plan Approval Not Required under the Subdivision Control Law. [Note 20]

On November 16, 2006 the Gossoms sought a foundation permit from the Building Department in order to commence construction of the proposed single family dwelling on their Rear Lot. [Note 21] Relying on the doctrine of infectious invalidity, the Building Inspector denied the Gossoms’ application by letter of November 28, 2006. [Note 22] The Gossoms appealed that denial to the ZBA on or about December 12, 2006. [Note 23] The appeal was heard on January 11, 2007 [Note 24] and on March 29, 2007 [Note 25] the ZBA reversed the decision of the Building Inspector, voting instead to issue the foundation permit. [Note 26] It is from that decision that the plaintiffs appeal under Count I of their Complaint filed on June 12, 2007.

In that Complaint, the plaintiffs recite five counts. Count I is a § 17 appeal from the ZBA decision favoring the Gossoms. [Note 27] The remaining counts relate primarily to disputes that focus on the right of way. [Note 28] Count II seeks a declaration that the plaintiffs hold title to the midpoint of the disputed right of way under G.L. c. 183, § 58. [Note 29] Counts III, IV and V respectively, seek, inter alia, an affirmation of plaintiffs’ alleged rights to use the entire right of way, together with a permanent injunction compelling defendants to remove any obstructions from the way. [Note 30]

The defendants answered and filed a counterclaim on June 25, 2007, seeking to quiet their title in the disputed right of way. [Note 31] The plaintiffs answered the counterclaim on July 5, 2007. A case management conference ensued on August 28, 2007.

On March, 26, 2008, defendants filed their Motion for Partial Summary Judgment and Memorandum of Law, seeking dismissal of Count I on the grounds that the plaintiffs lack standing to maintain a § 17 action, and alternatively, the decision of the ZBA was reasonable as a matter of law in light of the undisputed facts herein. In support of their standing argument, defendants supplied passages from the plaintiffs’ deposition transcripts. In those extracts, John Del Torchio was asked whether, apart from the issue of the front yard setbacks, he would “oppose the construction of the house on the otherwise approved ANR plan.” [Note 32] He responded as follows:

From the dealings we’ve had so far, everything they’ve done, to my knowledge, has not been by the books. That’s why I – you know, I mean, everything. Their house was built in the wrong spot. They encroached on – they keep pushing over on our side, and… I’d be leery, leery of that. [Note 33]

Defendants’ counsel followed up by asking, “[w]hat quantitative harm would there be to you and your wife if that house was constructed with regards to property values, privacy? Is there any reason that you would object otherwise?” [Note 34] John Del Torchio responded: “[i]f they could do it legally, by the rules of the road and other land laws and everything…” [Note 35]

Defendants’ counsel pressed him to explain this statement, to which he responded that “[w]ell, I mean, I don’t think they could do it…I just don’t think there’s room enough for a house there.” [Note 36] After repeating this sentiment again, [Note 37] he finally responded to the question, “[w]hat would the harm be,” as follows: “[t]here again, we’d be – we’d probably end up crowded, you know, I mean, with access problems and things like that.” [Note 38]

In her deposition testimony, when asked essentially identical questions, Lisa Del Torchio suggested that she “would oppose the construction of that house on that lot” “[b]ecause they’ve [the Gossoms] already taken half of the road at the front end, [and] because the traffic is going – there’s only 8 feet –.” [Note 39] Defendants’ counsel asked whether, notwithstanding disputes relative to the easement, she could articulate why she would otherwise object to the construction of a house on the Gossoms’ Rear Lot. [Note 40] To this question, she responded “[t]hat it’s made the neighborhood too dense.” [Note 41]

On April 16, 2008, plaintiffs filed their Opposition to Defendants’ Motion for Partial Summary Judgment and their Cross Motion for Summary Judgment. Included therewith was an affidavit of Lisa Del Torchio, in which she sought to substantiate plaintiffs’ claims of aggrievement. The affidavit included the following:

The right of way…provides access to our property…Although the right of way is forty feet wide, the traveled portion of the way is less than half that width and allows for only one vehicle to pass at a time. The right of way is narrowed due to several factors. One is that the Gossoms within the last several years have obstructed the beginning of the right of way with a paved parking area and plantings. As you move further down the way, the west side of the way has a nearly vertical drop off so as to create a fifteen (15) foot ravine. The drop of [sic] is so steep that boulders have been set within the way at the edge of the drop off to prevent vehicles from going over the edge. Due to the fact that the westerly portion of the way is impassable at the edge of the ravine, any vehicles traveling on the way must travel only on the easterly side of the way which is the side of the way our property abuts and we own and continue to exclusively maintain…Due to topographical conditions on the Gossom Rear Lot, and zoning requirements, construction on that lot is only possible at the very rear of the lot, past the narrowed portion of the way and well beyond the traveled end of the way. The attached plan submitted to the Building Department by the Gossoms shows that the Gossoms in fact plan to construct a parking area to service that house within the bounds of the way. Any vehicle accessing the proposed house would be forced to travel over our portion of the way and more than likely over our property…In my opinion, without significant improvements to and widening of the right of way, especially in the area adjacent to the ravine, the construction and occupation of another house on the Gossoms’ property will cause blockage of my right of access, lead to encroachments onto my property and result in congestion of the neighborhood. The proposed building site has very little depth, has only one small flat area and it is clear that the only usable yard will be the twenty (20) foot minimum front yard for everything including parking, trash collection, utilities and deliveries…All of these factors will in my opinion negatively affect the value of my property. [Note 42]

As referenced above, the plaintiffs also accompanied this motion with title documents, which the parties agree, encompass both chains of title.

The parties’ common grantor, Frank E. Davis, took title to the parcel from which plaintiffs’ and defendants’ lots were subdivided, by deed of Walter A. Sweet recorded with the Registry on June 6, 1928 at Book 2766, Page 163. [Note 43] The plaintiffs’ source deed, dated May 24, 1930 and recorded at Book 2857 and Page 312, conveyed the portion of the above grant from which the Del Torchios’ property would eventually be subdivided, from Frank E. Davis to his grandson Arthur Colbey Davis, Jr. [Note 44]

In its description, the deed provides as follows with regard to the disputed right of way: “thence continuing on the same course, fifteen (15) feet to proposed road, forty (40) feet wide over remaining land of the grantor.” (emphasis added).

After the description of the fee estate thereby conveyed, the deed granted an easement in favor of the granted estate over the above described right of way: “[t]ogether with the right to use said proposed road in common with the grantor, his heirs and assigns, for all purposes for which public ways are commonly used in the city of Gloucester.” These descriptions, with only minimal and immaterial changes, appear in every deed in the plaintiffs’ chain of title. [Note 45]

The defendants’ source deed from Arthur C. Davis, as executor of the will of Annie M. Davis, to Charles T. Heberle, Jr., dated August 20, 1956, and recorded with the Registry at Book 4298, Page 402, conveys land that includes the parcel to which the Gossoms ultimately would take title. This deed, as well as defendants’ entire chain of title, grants a fee interest in the land over which the right of way extends, according to its description:

…thence Westerly by land of said Courant, two hundred eighty-nine and seventy- five hundredths (289.75) feet, to a stake at the easterly side line of a proposed road, as shown on said plan dated May 17, 1930; thence Southerly and Southeasterly by said proposed road, one hundred and ninety hundredths (190.90) feet, to a stake; thence Northeasterly, fifteen (15) feet, to land of Hinckley; thence Southeasterly by land of said Hinckley, ninety three (93) feet, to said Ferry Street; thence running Westerly and Northwesterly by said Ferry Street, across the end of said proposed road, fifteen (15) feet, forty (40) feet, one hundred sixty-nine a five-tenths (169.5) feet and nine hundred thirty-two (932) feet, more or less, to an iron pin at the land of Montgomery. Plaintiffs’ Brief, Exh. “O.” (emphasis added). [Note 46]

On May 16, 2008, the ZBA filed its Opposition to Plaintiffs’ Cross Motion for Summary Judgment. Thereafter, on May 21, 2008, the motions were heard and taken under advisement.

Discussion and Analysis

A. 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. App. Ct. 360 , 364 (1993).

To meet his burden, the moving party need not proffer 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. See also Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 440 (2006) (reasoning “[b]ecause the defendants met their burden to show an absence of evidence in support of plaintiff’s case, the burden shifted to the plaintiffs to proffer evidence supporting their position”), citing Kourouvacilis, 410 Mass. at 411. 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 47]

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.” Catlin v. Board of Registration of Architects, 414 Mass. 1 , 7 (1992).

Once the moving party has met its burden, in order 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).

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 it 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. On the present record, this court concludes that there is no genuine dispute of material fact as to all but one issue: whether the Gossoms’ use of the gravel driveway substantially interferes with the Del Torchios’ rights in the length of the easement. Accordingly, a trial will be held as to this outstanding issue. Those remaining will be addressed and resolved by this order.

B. Claim Under G.L. c. 40A, § 17

Under Count I of the Complaint, plaintiffs seek judicial review of the ZBA decision that granted the foundation permit to the Gossoms. In their Cross Motion for Summary Judgment, plaintiffs contend that the defendants’ subdivision of their property rendered the Front Lot, upon which the Gossoms’ residence sits, a corner lot. [Note 48] The plaintiffs further allege that, by virtue of this changed status, the Gossoms’ lot is non-conforming as to front yard setbacks. [Note 49] This allegation rests upon the assumption that such setbacks are to be measured by the distance from the sideline of the right of way as it appears on recorded plans, rather than from the sideline of the gravel driveway as it exists on the ground. [Note 50] Finally, plaintiffs argue that this alleged non-conformity “infects” the Gossoms’ Rear Lot and, therefore, they conclude that the issuance of the foundation permit was legally untenable. [Note 51]

Defendants, in turn argue that the plaintiffs lack standing to pursue this appeal. To this end, they seek to rebut plaintiffs’ presumption of standing by offering relevant excerpts from the Del Torchios’ deposition testimony. Moreover, they seek to demonstrate that the Del Torchios have failed to provide factual support for their averments of aggrievement. [Note 52] In response, the Del Torchios posit that the mere submission of deposition testimony cannot effectively rebut their presumption of standing. [Note 53] Alternatively, Lisa Del Torchio provided an affidavit that purports to supply a factual basis for plaintiffs’ claims of aggrievement. [Note 54]

In seeking a dismissal of Count I, defendants contend that, even if the plaintiffs have standing, their argument fails on the merits. First, defendants suggest that any possible nonconformity with regard to front yard setbacks was not occasioned by the Gossoms’ subdivision of their property. [Note 55] As such, any nonconformity would not be infectious because it was not attributable to the applicants. [Note 56] Second, defendants argue that even if one were to assume that a Front Lot nonconformity resulted from defendants’ subdivision, the Gossoms’ Rear Lot is nonetheless conforming. The defendants assert that the ZBA used the appropriate legal standard for measuring front yard setbacks, and plaintiffs’ proposed method of measurement is legally untenable. [Note 57] Nevertheless, the defendants contend that this court is unable to reach the merits of plaintiffs’ appeal, inasmuch as the Del Torchios lack the requisite standing.

Only persons aggrieved by a ZBA decision may bring suit seeking judicial review of that administrative determination under G. L. c. 40A, § 17. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (“[o]nly a 'person aggrieved' may challenge a decision of a board of appeals”). Without aggrievement, this court lacks subject matter jurisdiction, and cannot reach the substantive issues presented in a claim. See Marrotta v. Board of Appeals of Revere, 336 Mass. 199 , 202-203 (1957) (“[t]he Superior Court had no jurisdiction to consider the case unless an appeal (if not by a municipal officer or board) was taken by an aggrieved person”). See also Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 542 n. 9 (2008) (“aggrievement for purposes of pursuing an appeal under G.L. c. 40A, § 17, is a jurisdictional requirement” [internal quotations omitted]); Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (“[s]tanding as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver) (Abrams, J., Dissenting); Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992) (“'[a[ggrieved person' status is a jurisdictional prerequisite” for § 17 review).

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 or concluded 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” [internal quotations omitted]), 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” deserving notice of ZBA proceedings under G. L. c. 40A, § 11, [Note 58] plaintiffs are entitled to a rebuttable presumption of standing. Marotta, 336 Mass. at 204; Marashlian, 421 Mass. at 721 (“[a]butters 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 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. See Watros, 421 Mass. at 111 (reversing Appeals Court judge's conclusion that presumption of standing may be rebutted by denials in defendant's Answer); 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]”); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999) ([i]t is not enough simply to raise the issue of standing in a proceeding under § 17 [; t]he challenge must be supported with evidence”).

That said, evidence adduced through discovery may rebut the plaintiffs' presumed standing, such as depositions, answers to interrogatories, and expert affidavits, if they shed doubt on plaintiffs' bases for asserting aggrievement. 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”); Barvenik, 33 Mass. App. Ct. at 131 n. 6 (observing defendants challenged plaintiffs’ standing “both before trial (on the basis of the plaintiffs’ discovery responses) and after trial (on the basis of trial testimony)”).

In this way, the defendant may rebut the plaintiffs' presumption of aggrievement either by providing affirmative evidence—that a basis for aggrievement is not well founded—or by demonstrating, 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.”).

To this end, defendants submitted extracts from plaintiffs’ deposition transcripts. [Note 59] That testimony consists merely of speculative personal opinion and is devoid of factual support for their allegations. [Note 60] Plaintiffs argue that such excerpts do not constitute competent evidence, or somehow are otherwise insufficient to rebut their presumption of aggrievement. This proposition is clearly unsupported by the case law. See Bell, supra; Cohen, supra. A § 17 defendant need not proffer affirmative evidence to rebut an abutter’s presumption of standing; evidence demonstrating the lack of factual support for claims of aggrievement “has equal force.” Standerwick, 447 Mass. at 36.

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 upon the plaintiffs' shoulders 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). Finally, as suggested above, establishing that a ZBA decision harms the plaintiffs in a perceptible way is not sufficient alone to confer standing; plaintiffs must also show the injury complained of is 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..., a plaintiff is 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) (opined in concluding trial court did not abuse its discretion in finding standing) (citations omitted). Bearing these lessons in mind, this court turns to the instant controversy. Plaintiffs raise diminution in value, density, and obstruction of the way as grounds for aggrievement. [Note 61] Each will be considered in turn.

Diminution in Value

A diminution in real estate value is recognized as a harm that may confer standing in a zoning appeal. Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 330 n. 4 (1993). Nevertheless, because zoning laws are “not designed for the preservation of economic value of property, except insofar as that end is served by making the community a safe and healthy place in which to live,” Tranfaglia v. Building Com’r of Winchester, 306 Mass. 495 , 504 (1940), the Supreme Judicial Court in Standerwick held that “[a] claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme.” 447 Mass. at 31-32. Thus, plaintiffs’ must “tether” their claim of diminished real estate value to a legitimate and independent zoning interest. Id. at 32.

Here, it is difficult to identify the zoning interest upon which plaintiffs’ base their claimed diminution in value. [Note 62] It appears that, perhaps the density of the project as configured is what plaintiffs contend will diminish the value of their property. [Note 63] Alternatively, perhaps the access and traffic issues, allegedly arising as a consequence of having another home abutting the right of way, threaten to cause the diminution as averred by the plaintiffs. [Note 64] In either event, plaintiffs do not explain how these possible issues might decrease the value of their property. [Note 65] Plaintiffs provide no more than a conclusory statement in this regard. [Note 66] In short, there is no substantiation provided for this claim.

In their brief, plaintiffs cite to Board of Assessors of Holbrook v. Dennehey for the proposition that “[p]roperty owners are competent to offer their opinion as to the value of their own property and to have that opinion property [sic] considered as part of the summary judgment record.” 357 Mass. 243 , 245 (1970) (opining property owner “is assumed to have a knowledge of his property adequate to form an intelligent estimate of its value”), quoting Wooley v. Fall River, 220 Mass. 584 , 589; Plaintiff’s Brief, p. 5. That holding is inapposite to the case at bar.

In Dennehey, the Supreme Judicial Court upheld an abatement granted the Denneheys by the Appellate Tax Board, based upon evidence of overvaluation. 357 Mass. at 245. That evidence consisted entirely of Mr. Dennehey’s testimony with regard to his own property value. Id. This court does not question a property owner’s ability to offer informed opinions with regard to the present value of his or her property, a proposition that gains support from Dennehey. Dennehey, however, does not stand for the proposition that a property owner is qualified to project how a nearby development might impact his property’s value. Such projections require greater expertise in the field of real estate valuation than is possessed by a layperson.

Moreover, even assuming, arguendo, that Dennehey supports the notion that Lisa Del Torchio is qualified to render an opinion regarding the impact of the Gossoms’ proposed development on the value of her property, she failed, nonetheless, to provide factual support for that opinion, or to detail how that development would effect a diminution in value. [Note 67] In sum, plaintiffs have failed to provide facts sufficient for a reasonable person to find that a diminution in value will flow from the ZBA’s issuance of a foundation permit. Butler, 63 Mass. App. Ct. at 441.


As Dwyer v. Gallo made clear, density concerns fall squarely within the parameters of zoning regulation. 897 N.E.2d 612, 617 (Mass. App. Ct. 2008) (reaffirming notion that “crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify abutter as aggrieved”). That said, a § 17 abutter/plaintiff may not merely invoke the word, “density,” thereby conjuring up the requisite standing. Rather, the plaintiff “must show that the zoning relief granted adversely affected them directly.” Id. at 615.

In those cases upholding standing on the basis of density concerns, the plaintiffs were able to identify the manner in which the density of the permitted development would negatively affect their property directly and with specificity. See id. at 616 (explaining how the increased density of the adjacent development would affect plaintiff’s privacy in relation to the specific configuration of her home); McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930 , 930-931 (2004) (illustrating how the addition of a floor to applicant’s building “within a bit less than a foot of McGee and Schiavoni’s fourth floor” would significantly reduce “their light, air, view, and privacy”); Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) (relating plaintiffs’ “articulated concerns about increased noise, increased artificial light,…decreased backyard privacy[, and] the environmental implications of two nearby septic systems instead of one” in a particularly dense neighborhood).

In this fashion, plaintiffs in the aforementioned cases succeeded to “demonstrate, not merely speculate, that there has been some infringement of [their] legal rights,” Denneny, 59 Mass. App. Ct. at 211, and “that [their] injur[ies were] 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 omitted).

In the case at bar, the Del Torchios have failed to adequately identify a density-related harm to their property that would flow from the issuance of the foundation permit. Compare Defendants’ Brief, Exh. “C “ (quoting John Del Torchio’s response that they would “probably end up crowded” by the extra dwelling); with id., Exh. “D” (quoting Lisa Del Torchio as alleging the Gossoms’ project has “made the neighborhood too dense”). See also Affidavit of Lisa Del Torchio, ¶ 5 (criticizing the configuration of Gossoms’ proposed development without relating it to the use and enjoyment of her property). Accordingly, plaintiffs have failed to adduce evidence sufficient to establish a plausible claim of density-based aggrievement.

Obstruction of the Easement/Access

The impact of a development upon area traffic fits within the zone of concern of land use regulation. Such impact, when demonstrated with the appropriate quantity and quality of evidence, and shown to be individualized, has been held to provide a viable basis for aggrievement under § 17. See Marashlian, 421 Mass. at 722 (concerns relative to “increased traffic…are legitimately within the scope of zoning laws”); Barvenik, 33 Mass. App. Ct. at 133 (including “possible vehicular traffic increases” in its list of “legitimate zoning-related concerns”). More specifically, the Appeals Court has held that plaintiffs alleging concerns about how a proposed development would exacerbate problems with two way traffic over a cul-de-sac and would hasten the deterioration of that unimproved circle, have standing. See Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 386-387 (2006).

Here, the plaintiffs aver harm that bears a superficial resemblance to that asserted in Choate. Compare Affidavit of Lisa Del Torchio, ¶ 5 (positing aggrievement insofar as the “occupation of another house on the Gossoms’ property will cause blockage of my right of access…and result in congestion of the neighborhood”); with Choate, 67 Mass. App. Ct. at 385 (noting “[n]either the board’s condition to the variances…nor [defendants’] affidavit addresses the plaintiffs’ concerns that the variance will result in increased traffic along the Circle, which will not accommodate two-way traffic, and will cause deterioration of the unpaved portion of the Circle, making it [near to] impossible for emergency vehicles to reach their houses”). This court concludes that, as to the matter at bar, Choate is not controlling insofar as the claims of harm are not supported by the same quantity or quality of evidence as advanced in that case. [Note 68]

In short, plaintiffs’ assertions that the grant of the foundation permit will somehow result in the blockage of the right of way [Note 69] are speculative, whereas those in Choate were supported by ample evidence.

Finally, the factual allegations advanced by Lisa Del Torchio concerning the right of way relate to the easement dispute, rather than to cognizable zoning interests. See Affidavit of Lisa Del Torchio, ¶ 3 (suggesting one factor that has contributed to the narrowing of the right of way “is that the Gossoms within the last several years have obstructed the beginning of the right of way with a paved parking area and plantings”). This alleged conduct by the Gossoms, concerning the disputed right of way as it abuts the Gossoms’ Front Lot, bears no relevance to the foundation permit and the manner in which any Rear Lot improvement will harm the Del Torchios. At best, such alleged conduct is pertinent to the remaining counts, which will be addressed by this court below and, as appropriate, at trial.

Further, to the extent that the plaintiffs’ speculate that the foundation permit will interfere with their rights in the common easement, [Note 70] they “might seek recourse through available actions in trespass or nuisance.” Isaac v. Zoning Bd. of Appeals of Taunton, Mass. App. Ct. Docket No. 05-P-406, Memorandum and Order Pursuant to Rule 1:28, 2006 WL 144690, *1 (Jan. 19, 2006) (reasoning plaintiff’s fears with regard to common use rights did not confer standing). See also Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339 , 342 (1993) (recognizing easement holder’s right “to make reasonable improvements in the [right of] way without the consent of the [servient estate]”). [Note 71]

In sum, though plaintiffs have identified cognizable harms under the zoning law, they have failed to articulate adequate factual bases for their alleged aggrievement. At best, they have provided conclusory, speculative, and generalized statements of harm. As such, plaintiffs have not supplied evidence sufficient for a reasonable person to conclude that the harm, as alleged, will flow from the ZBA decision. Accordingly, plaintiffs lack standing and this court lacks jurisdiction to reach the merits of Count I. [Note 72]

C. Action for Declaratory Judgment

Having addressed Count I, this court will now consider the remaining counts. As previously noted, the parties have come to agree on their respective chains of title which are before this court as a component of the summary judgment record. Consequently, the issue of title to the disputed right of way is ripe for summary judgment.

The primary item of contention concerns the Derelict Fee Statute, G.L. c. 183, § 58, and its applicability to plaintiffs’ source deed. If it is applicable as the plaintiffs argue, then they hold title to the midpoint of the right of way to the extent it adjoins their property. Moreover, they would posses an easement along its length. However, if it is not applicable, then the plaintiffs hold no more than a deeded easement in the right of way.

A ruling on this issue will be dispositive of Count II of the Complaint, but will have little, if any, impact on the remaining counts. As will be developed below, the question of trespass or nuisance as to plaintiffs’ property rights is factual in nature and requires a trial for proper adjudication.

Derelict Fee Statute

The plaintiffs assert that, by operation of G.L. c. 183, § 58, their property includes a fee interest in a portion of the disputed right of way. See Plaintiffs’ Brief, pp. 16-17. General Laws c. 183, § 58, provides inter alia the following:

[e]very instrument passing title to real estate abutting a way…shall be construed to include any fee interest of the grantor in such way…, unless (a) the grantor retains other real estate abutting such way…, in which case,…(ii) if the retained real estate is on the other side of such way…, the title conveyed shall be to the center line of such way…as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a sideline.

This statute “sets out an authoritative rule of construction for instruments passing title to real estate abutting a way…when the conveyance expresses no intent relative to the way” Emery v. Crowley, 371 Mass. 489 , 492 & 494 (1976), and “codifie[s] what was already a general principle.” [Note 73] Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 437 (2006). The statute also has retroactive effect. Rowley v. Massachusetts Electric Co., 438 Mass. 798 , 803 (2003).

Although “under the common law rule of construction the mention of a way as a boundary in a conveyance of land was presumed to mean to the middle of the way if the grantor owned the way[, t]his presumption could be overcome by clear proof of a contrary intent of the parties from the language of the deed and the attendant circumstances surrounding the conveyance.” Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339 , 343 (1993), citing Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679-681 (1965); Beattie v. Swanson, 360 Mass. 50 , 52 (1971) (citations omitted). For public policy reasons, [Note 74] the General Court adopted G.L. c. 183, § 58, which “embodies an even stronger presumption in favor of vesting title in abutters than the common-law rule that it superseded.” Rowley, 438 Mass. at 804, citing Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992).

Pursuant to § 58, the presumption controls “unless the instrument of conveyance evidences a different intent [of the grantor] by an express [exception or] reservation, and extrinsic evidence may not be used to prove the grantor’s intent to retain the fee to the way.” Id., quoting Tattan, 32 Mass. App. Ct. at 243-244 (internal quotations omitted). Moreover, as the statute expressly recites, a grantor’s intent to reserve or except the fee interest in a way cannot be established “by bounding by a side line.” G.L. c. 183, § 58; Rowley, 438 Mass. at 804.

Most of the decisional law, interpreting G.L. c. 183, § 58, focuses on the meaning of “real estate abutting a way” pursuant to the statute. See Rowley, 438 Mass. at 805-807 (considering whether railway fits within statutes definition of a “way”); Hanson v. Cadwell Crossing, LLC, 66 Mass. App. Ct. 497 , 502 (2006) (analyzing evidence concerning whether “strip [of land] has [been] sufficiently defined as a proposed street” so as to implicate § 58); Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987) (Derelict Fee Statute applicable “even if the way is not physically in existence, so long as it is contemplated and sufficiently designated”).

Here, there is no question that what is before this court is the conveyance of real estate abutting a private way, i.e. a scenario that might be expected to trigger the application of § 58. However, the question at hand asks whether the language of the plaintiffs’ source deed evinces an intent to reserve the fee in the right of way for the benefit of the grantor, thereby exempting that conveyance from the operation of § 58, and allowing the fee interest in the right of way to remain within defendants’ chain of title.

Two cases, Emery v. Crowley and Tattan v. Kurlan, are helpful in this regard. Neither decision, however, controls the interpretation of the deed at issue in this lawsuit, because neither was predicated on substantially the same language in the title instruments as is presented in this case. Compare Emery, 371 Mass. at 491, 493-494 (references in relevant title documents to “other land of grantor” and “land of Elsie C. Emery” were sufficient to exempt them from § 58, without intrinsic evidence that such lots constitute rights of way); with Tattan, 32 Mass. App. Ct. at 244 (reference in deed to plan that identifies right of way as “reserved” for “future roadway” insufficient to exempt that way from the operation of § 58). However, the Tattan court opined, significantly so, that “[i]n order to benefit from § 58(b), the express reservation of a fee interest that effectively removes an abutting monument from the operation of § 58 must be contained in the deed itself.” 32 Mass. App. Ct. at 247.

Here, plaintiffs’ source deed describes the disputed right of way as extending “over remaining land of grantor.” See Plaintiffs’ Brief, Exh. “A.” After describing the fee estate granted, the deed conveys the grantee an easement in the right of way, thusly described. See id. Both of these passages in the deed evince an intent to opt out of the common law principle of construction that the conveyance of land bounded by a way carries with it a fee interest in the way to the centerline, when the grantor owns such a way. [Note 75] Just as in Emery, the parties to the plaintiffs’ source deed “obviously intended and understood that this land [burdened by the right of way] was retained by the grantor.” 371 Mass. at 493. The deed at issue here, however, is dissimilar from those in Emery in that it recognizes that the adjoining land of the grantor is burdened by a right of way extending over a portion of it, whereas in Emery the relevant deeds did not refer to the adjoining land as being so burdened. 371 Mass. at 491.

This court considers this factual distinction from Emery insufficient to place the deed at issue outside of the § 58(b) exception to the Derelict Fee Statute. This court concludes that, because “rules of construction [even if statutory] are designed to elucidate the intent of the parties to written instruments,” Emery, 371 Mass. at 493, citing Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 680 (1965), and because there is clear evidence of contrary intent in the plaintiffs’ source deed, the rule of construction embodied in § 58 must bow to the primacy of grantor’s intent. Accordingly, this court will adhere to “[t]he basic principle governing interpretation of deeds [namely] that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument.” Hanson, 66 Mass. App. Ct. at 502-503, quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (internal quotations omitted). As such, the plaintiffs’ source deed includes an express reservation in the grantor of the fee in the right of way. Section 58 does not, therefore, apply and, consequently, the Gossoms hold title to the disputed right of way subject to the Del Torchios’ deeded easement in the same.

Remaining Counts

Although this court has ruled that the Del Torchios do not possess a fee interest in any part of the disputed right of way, and that, instead, the Gossoms own such an interest, the plaintiffs, nevertheless, do have an easement in this way, and the Gossoms conduct may be inconsistent with those rights. Whether their conduct, as alleged, rises to the level of trespass, nuisance or otherwise, is a question of fact, not presently ripe for summary judgment. Therefore, this action will proceed to trial on plaintiffs’ remaining Counts III through V of the Complaint.

In light of the foregoing, this court concludes that as to Count I, it lacks subject matter jurisdiction. As to Count II, the plaintiffs’ are without a fee interest in the disputed right of way, That right of way remains the focus of Counts III through V. The defendants, in turn, own a fee in the way subject to the Del Torchios’ deeded easement therein.

Accordingly, it is hereby

ORDERED that defendants’ Motion for Partial Summary Judgment is hereby ALLOWED and plaintiffs’ Cross Motion is hereby DENIED insofar as this court determines that the plaintiffs are not aggrieved by the decision of the ZBA [Note 76] and therefore lack standing to maintain this appeal from said decision pursuant to G. L. c. 40A, § 17. It is further

ORDERED that plaintiffs’ Cross motion for Summary Judgment is hereby denied to the extent that this court determines that the plaintiffs do not possess a fee interest in any portion of the disputed 40 foot right of way pursuant to G.L. c. 183, § 58, but, rather, the defendants, the Gossoms, hold the fee in said right of way, by operation of deed. It is further

ORDERED that the plaintiffs’ Cross motion is hereby ALLOWED to the extent that this court determines that the Del Torchios possess a deeded easement in the private right of way.


By the Court. (Grossman, J.)


[Note 1] The disputed 40 foot wide private way separates the plaintiffs’ properties from those of the defendants.

[Note 2] The so-called Derelict Fee Statute.

[Note 3] Defendants have two lots abutting the private way. The Front Lot houses defendants’ residence, while the foundation permit, approved by the ZBA, authorizes construction on the Rear Lot.

[Note 4] See Complaint, ¶¶ 2 & 11.

[Note 5] See Defendants’ Motion for Partial Summary Judgment Under Rule 56 Mass. R. Civ. P. and Memorandum of Law (Defendants’ Brief), Exh. “C.” See also Plaintiffs’ Brief in Support of Their Cross-Motion for Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment (Plaintiffs’ Brief), Exh. “F.”

[Note 6] See Plaintiffs’ Brief, Exh. “F” (appended thereto is a copy of said plan).

[Note 7] Contrast Complaint, ¶ 33 (alleging Gossoms’ use or occupation of segment of right of way leaves “11 feet of the private way unobstructed and available for travel”); with Affidavit of Lisa Del Torchio, ¶ 3 (contending “traveled portion of the way is less than half [its 40-foot width per the plans]”); with City of Gloucester Zoning Board of Appeals’ Decision (Decision), Defendants’ Brief, Exh. “B,” ¶ 8 (referring to “10 foot wide gravel drive on the east side of the way” as depicted on the Site Plan).

[Note 8] See Plaintiffs’ Brief, Exh. “V.”

[Note 9] See Decision, ¶ 2 (describing configuration of parties’ properties). Another family, the Andrews, own a lot that separates the front portions of the parties’ parcels. Id. The Andrews neither are a party to this suit nor were they to the appeal before the ZBA. Id.

[Note 10] Id., ¶ 9.

[Note 11] Id.

[Note 12] Plan of Land Located at 11 Ferry Street in Gloucester, MA, Defendants’ Brief, Exh. “E.”

[Note 13] I.e. Assuming that the defendants own to the far side or the easterly side of the right of way.

[Note 14] See Defendants’ Brief, Concise Statement of Material Facts, ¶ 6.

[Note 15] See Plaintiffs’ Brief, Exh. “DD.” The plan is titled “Plan of Land Located at 3 Ferry St. in Gloucester, MA. Prepared for John/Lisa Del Torchio” and is dated July 26, 2004. Id.

[Note 16] See Plaintiffs’ Brief, Exh. “DD.”

[Note 17] Complaint, ¶ 12. See Plan of Land Located at 11 Ferry Street in Gloucester, MA, Defendants’ Brief, Exh. “E.”

[Note 18] See id.

[Note 19] Id.

[Note 20] Complaint, ¶ 12.

[Note 21] Id., ¶ 19.

[Note 22] Id. See also Letter of William Sanborn, Inspector of Buildings, City of Gloucester, to Attorney Sandler (Denial Letter), Complaint, Exh. “A” (deciding, because “lot was recently subdivided into two lots, therefore, creating a zoning violation,” Gossoms’ application should be denied).

[Note 23] See Defendants’ Brief, Concise Statement of Material Facts, ¶ 9.

[Note 24] Decision, p. 1.

[Note 25] Id.

[Note 26] Id., p. 10.

[Note 27] See Complaint, ¶¶ 36-40.

[Note 28] See id., ¶¶ 41-50.

[Note 29] See Complaint, Prayers for Relief, ¶ 2.

[Note 30] See Complaint, Prayers for Relief, ¶ 3.

[Note 31] Defendant Mark and Shelly Gossom Answer to Plaintiff’s Complaint and Counterclaim (Answer and Counterclaim), ¶ 53.

[Note 32] Defendants’ Brief, Exh. “D,” p. 12.

[Note 33] Id., pp. 12-13.

[Note 34] Id., p. 13.

[Note 35] Id.

[Note 36] Id., pp. 13-14.

[Note 37] Id., p. 14.

[Note 38] Id.

[Note 39] Id., p. 24.

[Note 40] Id., p. 25.

[Note 41] Id.

[Note 42] Affidavit of Lisa Del Torchio, Plaintiffs’ Brief, Exh. “Y,” ¶¶ 2-6.

[Note 43] See Plaintiffs’ Brief, Exh. “G.”

[Note 44] See id., Exh. “A.”

[Note 45] The deed from Albert Colbey Davis, Jr., to Elizabeth A. Courant, dated February 18, 1944, and recorded at Book 3361 Page 474, refers to the right of way and easement as follows:

…thence running southwesterly by said land of Hinckley, 114 feet, and by the land of Arthur C. Davis, et ali, 15 feet, to a private way 40 feet wide, as shown on said plan; thence northerly by said private way of which only a part has been constructed…Together with the right to use, in common with others entitled thereto, the said private road 40 feet wide, of which only a part has been constructed along the westerly boundary of the granted premises, for all purposes for which public ways are commonly used in the City of Gloucester. Plaintiffs’ Brief, Exh. “B.”

The next deed in plaintiffs’ chain of title from Bank of New England-North Shore and Paul R. Courant, as Executors under the will of Reginald Courant, to Bruce A. and Ruth A. Whilton, as tenants by the entirety, who are plaintiffs’ direct predecessors in title, uses identical language. See Plaintiffs’ Brief, Exh. “E.” That deed was dated August 24, 1984, and recorded at Book 7504, Page 565.

[Note 46] The next deed in defendants’ chain of title, from Charles T. Heberle to Riverview Landing, Inc., dated December 14, 1956, and recorded at Book 4334 and Page 415, includes identical language within its description. See id., Exh. “P.” The following deed, from Building Center, Inc., to Riverview Heights Limited Partnership, dated August 19, 1996, and recorded at Book 13715 and Page 473, refers to the description found in the previous deed. See id., Exh. “Q.” The next relevant deed, from Riverview Heights Limited Partnership to Boston Skyline Limited Partnership, defendants’ direct predecessor in title, dated February 19, 1999, and recorded at Book 15614 and page 447, expressly states that the conveyance thereby embodied includes the disputed right of way:

[grantor] grants…certain land in Gloucester, Essex County, Massachusetts and being shown as lots 27, 42, and 120 and the right of way on the east of lot 120, on a plan entitled “Plan of Land in Gloucester – Property of Riverview Landing Inc.; April 2, 1962; Essex Survey Service” recorded in Essex South District Registry of Deeds as Plan #78 in Plan Book #98…The premises conveyed hereby are also shown as lots 30, 39 and 101 and the 40 foot right of way situated easterly of lot 101 as shown on Gloucester Assessors’ Map 92. See Plaintiffs’ Brief, Exh. “U” (providing both the deed and the cited recorded plan).

[Note 47] “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 48] See Plaintiffs’ Brief, p. 13.

[Note 49] See id.

[Note 50] See id., p. 14.

[Note 51] See id., p. 13.

[Note 52] See Defendants’ Brief, pp. 7-9.

[Note 53] See Plaintiffs’ Brief, p. 8.

[Note 54] See id., pp. 9-10.

[Note 55] See Defendants’ Brief, p. 10.

[Note 56] See id.

[Note 57] See id., pp. 10-12.

[Note 58] 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. There is no question that the plaintiffs fit within this statutory definition for abutter status.

[Note 59] See Defendants’ Brief, Exh. “C-D.”

[Note 60] See supra, § I for recitation of plaintiffs’ deposition testimony in this regard.

[Note 61] See Plaintiffs’ Brief, pp. 9-10.

[Note 62] On this record, it appears that only Lisa Del Torchio has made a claim of decreased real estate values caused by the grant of the foundation permit.

[Note 63] See Affidavit of Lisa Del Torchio, ¶ 5 (stating “[t]he proposed building site has very little depth, has only one small flat area and it is clear that the only usable yard will be the twenty (20) foot minimum front yard for everything including parking, trash collection, utilities and deliveries.”).

[Note 64] See id. (suggesting “without significant improvements to and widening of the right of way…the construction and occupation of another house on the Gossoms’ property will cause blockage of [plaintiffs’] right of access, lead to encroachments onto my property and result in congestion of the neighborhood.”).

[Note 65] See id., ¶ 6 (opining “[a]ll of these factors will in my opinion negatively affect the value of my property”).

[Note 66] See id.

[Note 67] Compare to Dennehey where the property owner was able to point to a number of supporting facts. 357 Mass. at 244.

[Note 68] In Choate, the Mashpee Zoning Board of Appeals imposed a condition upon the grant of two variances that “all instructions and requests of the [Mashpee] Fire Department detailed in the attached memo from [Deputy Fire Chief Hamblin] must be adhered to and executed.” 67 Mass. App. Ct. at 383 (internal quotations omitted). That memorandum, however, included neither instructions nor requests; “[r]ather, [the memorandum] merely set[] out his professional opinion that at the time of the defendants’ requests for variances, the Circle failed to meet the requirements [of the Mashpee by-laws].” Id. at 384 (emphasis added). Moreover, what standard the deputy did reference in his memorandum, even if adhered to, was non-compliant with the Mashpee bylaw. Id. at 385 (observing standard enunciated by deputy in memorandum was “in fact the dimensions that the by-law requires for a driveway [not a cul-de-sac or road]”).

As such, in Choate, there was both expert evidence to support plaintiffs’ fears of the variance overburdening the partially unpaved cul-de-sac, and evidence indicating that the very condition imposed to mitigate this problem was violative of the Mashpee bylaws. Here, there is neither expert evidence supporting plaintiffs’ allegations, nor is there evidence to suggest a facially inadequate mitigating measure. In fact, there are no conditions at all, because the ZBA issued a foundation permit, which is non-discretionary and for as-of-right uses; and because the endorsement of the ANR plans filed by both plaintiffs and defendants recognized the driveway as legal frontage for zoning purposes for lots abutting that easement.

Further, in Choate, defendants’ expert failed to address several issues raised in the plaintiff’s deposition testimony, when he gave his affidavit. 67 Mass. App. Ct. at 386 (noting [expert’s] subjective opinion addresses only the residents’ use of the Circle and, unlike [plaintiff’s] deposition testimony, is silent on the matter of traffic from sightseers, not to mention visitors, vendors, and occasional drivers who have lost their way”). Here, plaintiffs have failed to point to any facts beyond the nature of the gravel driveway, as it currently exists on the ground, to support their contentions, thus obviating the need for such a clash of affidavits. In sum, the present record does not resemble that in Choate, and does not provide sufficient evidence of, Choate like, aggrievement to confer standing upon the plaintiffs.

[Note 69] I. e. a right of way whose fee resides in the Gossoms, per this court’s determination.

[Note 70] See Affidavit of Lisa Del Torchio, Plaintiffs’ Brief, Exh. “Y,” ¶ 4 (opining that because of “topographical conditions, the attached plan shows that the Gossoms intend to construct a parking area to service that house within the bounds of the way”). It should be noted that a foundation permit does not concern this prospective development.

[Note 71] See, e.g., Counts III through V of the Complaint, alleging obstruction as well as trespass, and seeking injunctive relief.

[Note 72] Though this court lacks jurisdiction, it doubts the applicability of the doctrine of infectious invalidity in the instant matter. In this Commonwealth, when an applicant creates a buildable lot at the expense of another lot, rendering the latter nonconforming by the creation of the former, this nonconformity infects the otherwise conforming lot and forecloses the applicant’s right to develop that lot. See Alley v. Building Inspector of Danvers, 354 Mass. 6 , 7 (1968) (finding infectious invalidity when plaintiff deprived two lots of requisite minimum area in creating a third conforming lot); Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414 (1993) (upholding defendants’ foundation permit because through conveyances defendants pieced together a conforming lot, irrespective of infectious invalidity); Planning Bd. of Nantucket v. Board of Appeals of Nantucket, 15 Mass. App. Ct. 733 (1983) (finding infectious invalidity when subdivision rendered one lot nonconforming as to ground coverage ratio); Norton v. Donohue, 12 LCR 173 (2004) (Misc. Case No. 256473 & 283993) (Trombly, J) (finding infectious invalidity when subdivision made already developed lot nonconforming as to frontage, area, and setback provisions).

In all the above cited cases, however, the applicant’s division of his property created one conforming lot at the cost of another lot’s compliance with the relevant zoning bylaw or ordinance. Here, if the defendants made Gosssoms’ Front Lot nonconforming, it was not by configuring their commonly held land so as to create one conforming lot, ready for development, and another nonconforming, which had already been developed. In fact, if the Gossoms were to merge the lots today to avoid putative infectious invalidity, such an act would fail to cure this nonconformity.

On the contrary, any nonconformity attaching to Gossoms’ Front Lot was occasioned by the Planning Board implicitly accepting the driveway as providing legal access and frontage when it endorsed the Gossoms’ ANR plan. This legal conclusion, with regard to the common driveway, transformed the driveway into a street as defined by the city’s zoning ordinance and converted the Gossom property in its totality, whether subdivided or not, into a corner lot, subjecting it to multiple front yard setback requirements. This conduct does not present the type of “zoning misbehavior,” which the decisional law seeks to prevent. Murphy, 34 Mass. App. Ct. at 414.

Even assuming this distinction is of no legal significance, the moment at which defendants’ property—in its entirety—became a corner lot, and arguably nonconforming was when the Del Torchios obtained endorsement of their ANR plan, which tacitly approved of the driveway as a street for zoning purposes. This action predated any subdivision by the Gossoms. As the facts stand, according to the logic propounded by the plaintiffs, the Del Torchios should have been denied a building permit for converting their garage into a rental unit because of infectious invalidity. In either case, there is simply no authority for the proposition that the actions of a third party, which render another party’s lot nonconforming, give rise to infectious invalidity.

This lack of authority is likely attributable to the correlative relationship between the doctrine of infectious invalidity and that of merger. See Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726 , 735 (2007) (citing to Alley when stating a “corollary of the principle” of merger). Both seek to minimize nonconformity by prohibiting “landowners [from] creat[ing] dimensional nonconformity if the use of adjoining land they own can avoid or diminish the nonconformity.” Id., citing Burke v. Zoning Bd. of Appeals of Harwich, 38 Mass. App. Ct. 957 , 958 (1995), citing, e.g., Alley, 354 Mass. at 7-8; Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690 (1989). See also Nantucket, 15 Mass. App. Ct. at 737 (reasoning “buildings on Lot 1 could not be valid conforming structures, because [the private defendant] had sufficient land area to support the structures and had no right to create a nonconformity”).

While this court agrees with the plaintiffs that an applicant’s intent behind “zoning misbehavior” is irrelevant to the applicability of infectious invalidity, there must be such misbehavior, conduct on the part of the applicant that creates or increases the incidents of nonconformity, for that doctrine to operate. Here, there is no such conduct, and, therefore, this court considers the doctrine of infectious invalidity as inapplicable to the case at bar.

[Note 73] The common law presumed that “a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far.” Gould v. Wagner, 196 Mass. 270 , 275 (1907). The Supreme Judicial Court provided the rationale for this principle of construction in Smith v. Slocumb, 9 Gray 36 , 37 (1857):

The theory of law…is, that by taking land for a highway the public take an easement only, and not a fee; that fee must be in somebody, and not in abeyance, and remains in the abutter; that the public easement so completely takes all that can be made serviceable to the owner, that what remains cannot be considered of much value; and therefore, if he makes a new conveyance bounding “on the road,” and says nothing more, the presumption is, in the absence of all other proof, that the grantee takes [to the middle of the way].

[Note 74] That is “to meet a situation where a grantor has conveyed away all of his land abutting a way or stream, but has unknowingly failed to convey any interest he may have in land under the way or stream, thus apparently retaining his ownership of a strip of the way or stream.” Rowley v. Massachusetts Electric Co., 438 Mass. 798 , 803 (2003), quoting Letter of Governor Francis W. Sargent to the Legislature, April 9, 1971 (internal quotations omitted).

[Note 75] The grant of the easement would not have been necessary, if the grantor had intended to allow the common law default rule to control the meaning of the conveyance embodied by that deed. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. at 677-678; Casella v. Sneierson, 325 Mass. 85 , 89 (1949); Goldstein v. Beal, 317 Mass. 750 , 755 (1945).

[Note 76] Which overruled the Building Inspector’s denial of the Gossoms’ foundation permit.