In this case, Alexander Elles, Mike Joseph, Devin Vaughn, Laurie Pilotte, and Brian Mozinski (collectively, Seaport Trustees), as Trustees of Seaport at Marina Bay Condominium Trust (Seaport), and Theresa Angelis, David Duval, Susan Feit, Maxine Kessler, and Holly Loose Nelson (collectively, Chapmans Reach Trustees), as Trustees of Chapmans Reach Condominium Trust (Chapmans Reach), filed a complaint seeking under G.L. c. 40A, §17 judicial review of a decision (Decision) of the Zoning Board of Appeals (Board) of the City of Quincy, whose members are defendants. The challenged Decision of the Board was dated July 28, 2004 and filed with the Quincy City Clerk the same day. In the Decision, the Board granted a Flood Plain Special Permit under Chapter 17.40.060 of the Citys Zoning Ordinance on the application of 260 Victory Road, LLC (260 Victory Road), signed on its behalf by Thomas P. OConnell (OConnell); 260 Victory Road and OConnell also were named (along with the Board members and the Citys building inspector) as defendants. I denied summary judgment in an order dated January 12, 2007. See Elles v. Quincy Zoning Bd. of Appeals, 15 LCR 50 (2007) (Misc. Case No. 301194) (Piper, J.). Defendants made several attempts to appeal the January, 2007 denial of summary judgment. Finally, on February 15, 2008, the Supreme Judicial Court held that the denial of summary judgment was not appealable, and the case was to proceed to trial. See Elles v. Zoning Bd.of Appeals of Quincy, 450 Mass. 671 (2008).
On July 25, 2008, in the presence of counsel for all parties, I took a view of the locus involved in this matter, including the proposed building site, the properties of the plaintiff condominiums, and the surrounding road network. I tried the case at the court in Boston beginning on July 30, 2008 and concluding the following day. A court reporter, Lisa E. Berkland, was sworn to transcribe the testimony and proceedings. At trial, the following people testified: Thomas OConnell, Richard Bryant, William Lyons, Holly Loose Nelson, and Alexander Elles. The parties introduced into evidence twenty-three exhibits, all of which are incorporated into this decision for the purpose of any appeal. After preparation of the trial transcript, the parties filed post-trial memoranda and appeared for closing arguments on the record. I now decide the issues in this case as tried and submitted to me.
Plaintiffs argue they are aggrieved by the Boards decision because, inter alia, the approved development will have eighty units instead of twenty-five units, which plaintiffs argue is the maximum number of units allowed under the zoning ordinance. Plaintiffs assert that the 260 Victory Road project, with its enlarged density, will (1) increase delays at the various intersections within the Marina Bay road network; (2) cause a more rapid physical deterioration of the roads in Marina Bay, thereby increasing the costs associated with repairs; (3) increase the number of traffic accidents; (4) increase the amount of traffic that cuts through the Chapmans Reach development; and (5) increase the cost of servicing the road network by removing a portion of a landscaped median. The plaintiffs argue that any one of these alleged consequences of the challenged project is sufficient to confer standing.
Under G. L. c. 40A, § 17, only persons aggrieved have standing to appeal a decision of a zoning board of appeals. If a plaintiffs legal or property rights will (or likely will) be infringed by a boards action, then he or she qualifies as a person aggrieved. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term person aggrieved is not to be narrowly construed, the plaintiffs injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be special and different from the concerns of the rest of the community); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest). In addition, the injury claimed by the plaintiff also must be legitimately within the scope of the zoning laws. Marashlian, 421 Mass. at 722.
There is an initial presumption that a party who is entitled to notice of board hearings is a person aggrieved, [Note 1] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-4 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of credible evidence, the evidence offered must provide specific factual support for each of the claimed injuries (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. Conjecture, personal opinion, and hypothesis are insufficient. Id.
The questions for decision now before me concern whether or not, as a factual matter, plaintiffs (or at least some of them) do, on all the evidence, have aggrievement of the type legally sufficient to entitle them to proceed with this judicial appeal and to permit me to reach the merits of the plaintiffs challenge to the Boards Decision. This issue first arose on summary judgment. In the courts summary judgment order in this case, the court explained that it was confronted with competing affidavits of expert witnesses--for plaintiffs and for 260 Victory Roadprincipally concerning the traffic impacts which might flow from the challenged project. The private defendants expert affidavits tended to show the absence of material adverse traffic impacts to the plaintiffs; plaintiffs experts by affidavit showed the opposite. In the summary judgment order, the court ruled that the plaintiffs had, by those of the traffic expert affidavits which they introduced, made a sufficient submission to survive the private defendants motion for summary judgment. The court concluded that [t]he record [on summary judgment] shows that, if the evidence within the record is credited after trial, these adverse impacts might be produced by the Development and give rise to aggrievement on the part of at least some of the Plaintiffs. [Note 2]
For the reasons set forth below, I decide that the plaintiffs have established properly their aggrievement, and therefore have standing to contest the permit. Chapmans Reach (but not Seaport) enjoyed presumptive standing because its property abuts the locus. The presumption receded when the defendant challenged aggrievement. The issue now is to be decided on all the evidence. See note 2, and Standerwick, supra, at 32-33. Based on all the testimony, exhibits, stipulations, and other evidence introduced at trial and the reasonable inferences I draw therefrom, I find the following facts and rule as follows:
The two traffic studies, both commissioned by defendants, the Rizzo Report and the Coler & Colantonio Report (Coler Report), reached different conclusions about the number of additional vehicle trips that will be generated by the 260 Victory Road Project. The explanation of plaintiffs expert, Mr. Lyons, was that the discrepancy is based on the fact that the Rizzo Report used an average rate projection, and the Coler Report used the fitted curve equation. Both methods are sanctioned by the Institute of Transportation Engineers (ITE) Trip Generation manual. I find that using the fitted curve equation was, in this instance, a more conservative approach, and I accept the trip generation numbers in the Coler Report, when there is a conflict with the results in the Rizzo analysis. I find that the proposed project at 260 Victory Road will generate forty-three additional AM peak hour trips, sixty-two additional PM peak hour trips, 631 average weekday trips, and 230,000 additional vehicle trips per year. [Note 3] The Rizzo Report concludes the project will generate forty-one additional AM peak hour trips, fifty additional PM peak hour trips, 538 additional weekday trips, and 190,000 additional trips per year.
I do accept the presumptive plaintiffs evidence whenever any reasonable person could rely on such evidence. See Butler, supra at 441. Here, the plaintiffs did not offer any evidence to suggest how the level of service analysis in the Rizzo Report [Note 4] would have turned out differently if it included the additional two vehicles in the AM peak hour analysis, and the additional twelve vehicles in the PM peak hour analysis, except to say that [u]sing the lower numbers clearly will underestimate the amount of additional delay experienced by average motorists at the studied area of the intersections. Again, I will rely on the Coler Reports numbers whenever there is a conflict. In the absence of any evidence from the plaintiffs on how the additional cars predicted in the Coler Report should be factored in to the Rizzo Reports level of service analysis, I find as follows:
1. As to the northbound left turn at East Squantum Street, coming into the Marina Bay development onto Victory Road, I find that current traffic includes 190 vehicles making that maneuver during the peak AM hour, and that this maneuver has a calculated delay of 9.4 seconds. During PM peak hour, 215 vehicles make this turn, with a calculated delay of 8.6 seconds. The 2009 No-Build projection predicts 200 vehicles making this turn during the AM peak hour, with a calculated delay of 9.7 seconds, and 226 vehicles during PM peak hour, with a calculated delay of 8.8 seconds. After the development at 260 Victory Road is completed, I find 204 vehicles will turn left onto Victory Road from East Squantum Street during the AM peak hour, experiencing a delay of 9.7 seconds. During the studied peak PM hour, 241 vehicles will make this turn, experiencing a delay of 8.8 seconds.
I find the proposed development will not result in any delays for this maneuver.
2. As to the lefthand turn coming out of Marina Bay by Victory Road, turning on to East Squantum Street, I find that current traffic includes eleven vehicles making this turn during AM peak hours, with a calculated delay of 31.1 seconds. During the PM peak hour, thirty-four vehicles currently make this turn, with a calculated delay of 35.7 seconds. The 2009 No-Build projection predicts twelve vehicles during the peak AM hour, experiencing 34.8 second delays, and thirty-six cars during peak PM hours, experiencing 41.1 second delays. After the proposed 260 Victory Road development is complete, I find there will be thirteen cars during the peak AM hour, with a calculated delay of 35.8 seconds, and thirty-seven cars during the peak PM hour, with a calculated delay of 45.1 seconds.
I find the development will result in a delay of 1.0 second during the analyzed AM peak hour and 4.0 seconds during the analyzed PM peak hour.
3. As to the right turn from Victory Road on to East Squantum Street, I find that under current traffic patterns, in the morning peak, 139 vehicles make this turn, with a calculated delay of 14.4 seconds. During the peak PM hour, 227 vehicles make this turn with a calculated delay of 13.1 seconds. The 2009 No-Build projection predicts 146 vehicles during the peak AM hour, experiencing 14.7 seconds of delay, and 239 cars during the peak PM hour, experiencing 13.7 second delays. After the proposed development at 260 Victory Road is complete, I find there will be 158 cars during the peak AM hour, with a calculated delay of 15.2 seconds, and 249 cars during the peak PM hour, with a calculated delay of 13.9 seconds.
I find the development will result in a 0.5 second delay during the studied AM peak hour, and a 0.2 second delay during the PM peak hour.
4. As to traffic proceeding westbound on Seaport Drive, and turning onto Commander Shea Boulevard, I find that currently, during the AM peak hour, 223 vehicles turn left, and twenty-three turn right. The delay for both maneuvers is calculated to be 11.3 seconds. During the PM peak hour, 164 vehicles turn left, six turn right, and the calculated delay for each maneuver is 13.1 seconds. The 2009 No-Build projection predicts, during the AM peak hour, 234 lefthand turns and twenty-six right turns, each with a calculated delay of 11.6 seconds. During the PM peak, there are six predicted right turns, 172 predicted left turns, each with a calculated delay of 13.8 seconds. After the completion of the proposed development at locus, I find there will be, during AM peak hour, twenty-eight right turns and 252 left turns, each with a calculated delay of 11.9 seconds. During PM peak, there will be six right turns and 179 left turns, each with a calculated delay of 14.2 seconds.
I find the development will result in a 0.3 second delay during the AM peak hour, and a 0.4 second delay during the PM peak hour.
The Coler Report gathered additional information about the intersection of Victory Road with Haul Road and the Chapmans Reach driveway, known as Tilden Commons Drive. The Coler Report conducted its measurements during the winter, and projected increased traffic for the summer months, based largely on seasonal uses. There was evidence, introduced by defendants expert, Mr. Bryant, that the projections resulted in numbers far too high, in some cases too high by half. As I am relying on the evidence offered by the plaintiffs if a reasonable finder of fact could so rely, I find the extrapolated figures for summertime traffic not to be so clearly erroneous that they are beyond all believability. Based on the Coler Report, and the figures for summertime traffic, I find as follows:
1. As to northbound traffic on Victory Drive during the AM peak hour, I find 342 vehicles pass straight through the intersection, 6 turn right into Chapmans Reach, and ten turn left onto the Haul Road. Each left-turning vehicle will meet a 7.4 second delay. During the PM peak, 178 vehicles pass straight through the intersection, thirty-seven turn right, and six turn left, experiencing an 8.2 second delay. As to the conditions after the proposed development is complete, for the AM peak hour, I find 350 vehicles pass straight through the intersection, six turn right, and eleven turn left onto the Haul Road. The left turn is calculated to have a 7.5 second delay. During the PM peak hour, 212 vehicles continue straight at the intersection, 37 turn right into the Chapmans Reach driveway, and 10 make a left turn onto the Haul Road, each experiencing a delay of 8.3 seconds.
I find the development will result in a 0.1 second additional delay during AM and PM peak hours.
2. As to Southbound traffic on Victory Road during AM peak hour, I find seventy-four vehicles pass straight through the intersection, and zero vehicles make turns. A vehicle turning left would encounter a calculated delay of 8.0 seconds. During the PM peak hour, 310 vehicles travel straight through the intersection, zero make a right turn onto Haul Road, and three vehicles turn left into the Chapmans Reach driveway, each with a calculated delay of 7.7 seconds. As to the conditions after the proposed development is complete, for the AM peak hour, I find 103 vehicles will travel straight through the intersection, and zero vehicles will turn. Vehicles turning left would experience a delay of 8.0 seconds. During the PM peak hour, 239 vehicles would pass straight through, zero will turn right, and three will turn left into the Chapmans Reach driveway, each with a calculated delay of 7.8 seconds.
I find the development will cause no additional delay during the AM peak hour, and 0.1 seconds delay during the PM peak hour.
3. As to eastbound traffic on Haul Road, I find that currently, during the AM peak hour, eleven vehicles make a right turn onto Victory Road, zero vehicles pass straight through the intersection into Chapmans Reach, and zero attempt a left turn to travel north on Victory Road. A left turn is calculated to meet with an 8.8 second delay. During the PM peak hour, thirty vehicles turn right onto Victory Road, two vehicles proceed straight into Chapmans Reach, and two vehicles make a left turn onto Victory Road, in a maneuver experiencing a 12.1 second delay. As to the conditions after the proposed development is complete, during the AM peak hour, fourteen vehicles will turn right to proceed southbound on Victory Road, and zero cars will proceed straight or turn left. A left turn, if attempted, would meet a delay of 9.0 seconds. During the PM peak hour, thirty-two vehicles will turn right to proceed southbound on Victory Road, two vehicles will proceed straight into Chapmans Reach, and two vehicles will turn left, with a delay of 12.5 seconds.
I find the development will result in a 0.2 second delay during AM peak hour, and a 0.4 second delay during PM peak hour.
4. As to westbound traffic coming out of Chapmans Reach, I find that currently, during the AM peak hour, seventy-five vehicles make a left turn to proceed southbound on Victory Road, five turn right, and zero vehicles proceed straight. The left turn experiences a delay of 14.5 seconds. During the PM peak, eighteen vehicles make the left turn from Chapmans Reach to proceed southbound on Victory Road, meeting a delay of 17.2 seconds. Zero cars turn right or proceed straight. As to the conditions after the proposed development is complete, I find that during the AM peak, five vehicles will turn right, zero will continue straight onto the Haul Road, and seventy-five will turn left, experiencing a delay of 15.5 seconds. During the PM peak, zero vehicles will proceed straight, or will make a right turn. Eighteen vehicles will make a lefthand turn, experiencing a delay of 19.1 seconds.
I find the development will result in a 1.0 second delay during AM peak hour, and a 1.9 second delay during PM peak hour.
Plaintiffs have no aggrievement on the issue of traffic. The facts they have presented do not make a case for injury even under the lenient rules governing standing, because an increase in delay of--at most--four seconds does not amount to a violation of a private right protected by zoning. Every decision of the Board, and every new development will cause some impact on the neighborhood and the municipality in which it is located. There is nothing in the jurisprudence surrounding G. L. c. 40A, § 17 to indicate that the mere fact of a new development confers standing. See Rinaldi v. Bd. of Appeal of Boston, 50 Mass. App. Ct. 657 , 660 (2001) (Plaintiff cannot insist on conditions that would prevent [defendants] use of her property.). Standing is not automatic whenever there is a measurable impact or effect, no matter how slight or inconsequential. To confer standing, G. L. c. 40A, § 17 requires something more than minor, glancing impact; it requires aggrievement. Aggrievement is a violation of a private right, a private property interest, or a private legal interest. Harvard Square Defense Fund, supra, at 493. Increased vehicle traffic resulting in increased congestion is, to be sure, a concern against which the zoning laws protect. See generally, Butler, supra. Traffic, in and by itself, is not a violation of a legal right or property interest. To be aggrieved by traffic, a plaintiff must suffer some injury or adverse effect caused by the traffic. See Marashlian at 723 (affirming aggrievement where increased traffic caused loss of on-street parking). Here, the issue is not whether the injury alleged is within the scope of zoning protection, or whether the evidence put forth is plausible rather than speculative; rather, the issue is whether the truly insignificant delays the project will produce amount to a violation. They do not. See Standerwick, supra, at 32 (stating in dicta A developer may conclusively demonstrate, for example, that an increase of traffic will not adversely impact plaintiffs of their property such that plaintiffs are unable to establish a traffic-related aggrievement.).
On the evidence they have presented, the most plaintiffs plausibly can claim is that delay will increase by not more than four seconds (and in many cases, for a far shorter interval), during a one to two hour period, once a day. The extremely small amount of delay implicated on these facts is not enough to amount to a violation of rights, which is required for aggrievement. See Cohen v. Plymouth Zoning Bd. of Appeals, 35 Mass. App. Ct. 619 , 623 (1993) (Even assuming that the anticipated traffic increases and delays will result, there is no specific showing that the plaintiffs will . . . be injured. . . .). Almost every project produces an increase of some magnitude in the traffic on the abutting street; for an increase in traffic to constitute a source of aggrievement a plaintiff in a zoning appeal must show that the increase will adversely affect a protected property interest. Caso v. Natick ZBA, 7 LCR 293 , 296 (1999) (Misc. Case No. 236715) (Green, J.); see also Maloof v. Wrentham PB, 12 LCR 359 , 364 (2004) (Misc. Case No. 290639) (Long, J.) (discussing Caso).
Phrased differently, the plaintiffs have not made a plausible claim because no reasonable finder of fact could conclude that such insignificant delays amount to an infringement of any recognized right or interest. The plaintiffs offered no evidence of aggrievement other than the mere fact of delays--all of which, giving plaintiffs every benefit of the evidence--are insignificant. [Note 5] There was no evidence that any forecast delay translates to a diminution of property value. There was no evidence of how the worst of the delays, only four seconds in duration, would in any real world way affect the lives of the thirty-seven motorists who might come to experience that very brief delay. In the absence of any evidence to the contrary, I find that is it not plausible that the at-most four seconds worth of additional delay will infringe upon any recognized right or interest of any of the plaintiffs, and that the delay, therefore, is insufficient to confer standing.
B. Road Maintenance
The three main access roads serving the Marina Bay area are Victory Road, Marina Drive, and Commander Shea Boulevard. These are private ways, owned by the MB Access Corporation. Individual developments within Marina Bay participate in a Declaration of Easements and Common Facilities Maintenance Covenant (MB Access Agreement), which granted the various developments an easement to use the roadways, and provided a cost-sharing arrangement among the Marina Bay development owners for those roadways and other common areas. The MB Access Agreement requires each owner of a lot within Marina Bay to be liable for assessments to maintain all common facilities, including the roads. By the terms of the recorded documents, these assessments constitute liens on the real estate.
The cost-sharing mechanism in the MB Access Agreement provides for an allocation of shares to each development. For residential developments, three bedrooms equal one share. For commercial developments, 1,000 square feet equals one share. The total number of shares assessed, divided by the number of shares assigned to a particular development, equals the percent of the total MB Access assessment for which that development is responsible.
All parties agree that if costs remain the same, a greater number of shares outstanding will decrease each individuals monetary contribution. Thus, if there were no other changes, the addition of a new residential project, whose owners also would in a proportionate way bear the common facilities expenses, would actually reduce the costs to be shouldered by the owners of existing properties at Marina Bay, including plaintiffs. The dispute is whether this savings, based on smaller percentages, will be offset by a decrease in the useful life of the roadways; plaintiffs contend that the higher density use of the roadways by vehicles associated with the challenged 260 Victory Road project will increase road costs to such a degree that plaintiffs will end up paying more, rather than less.
I find as a fact that if the proposed construction at 260 Victory Road were operational, it would be allocated forty shares. The current use at the locus was allocated 25.969 shares for 2007. The increase in the number of shares allocated to 260 Victory Road would decrease Chapmans Reachs percentage from 13.61 percent in 2007 to 13.41 percent, and would decrease Seaports percentage from 7.95 percent to 7.83 percent. [Note 6]
Having previously found, based on credible evidence, that the proposed project will generate 230,000 new vehicle trips per year on the Marina Bay roads, I accept the testimony of defendants traffic expert that those additional trips will decrease the useful life of the roadways by 1.3 years over a twenty-year lifespan. I rely on this figure even though the evidence on this point is rather weak. As the basis for this calculation, Mr. Lyons assumed a pavement depth of four inches without researching the actual existing pavement depth, even though that information is available as a matter of public record. The defendant, for its part, did not rebut Mr. Lyonss testimony by introducing evidence to show the roads were constructed with a pavement depth of other than four inches. Instead, defendant relied on the inference that, because the original Master Plan for the whole Marina Bay area contemplated a build-out scenario with a higher density than exists 850,000 square feet of commercial office space opposed to the 218,000 square feet currently in place, 950 residential units opposed to 892 now existing, and 25,000 square feet of retail space opposed to 6,000 square feet as built that the roads could withstand easily the extra eighty units proposed at 260 Victory Road. Without more, defendants have not presented enough of a challenge to the plaintiffs claim so that I may find otherwise. Accordingly, I accept the plaintiffs posited pavement depth, simply because it is at least plausible.
Reducing the useful life of the roads by 1.3 years over twenty years is a 6.5 percent decrease. The costs of maintaining, restoring, rebuilding, or replacing the roadways are directly visited upon the plaintiffs in the form of the assessments. If the rate of road deterioration increases because of the challenged project, the plaintiffs either must pay more to maintain the roads, or pay to replace the roads sooner, or more often. On the evidence that I have, I accept that the plaintiffs have put forward at least a plausible claim that the costs associated with maintaining, restoring, rebuilding, or replacing the roads in Marina Bay will increase as a result of the additional traffic which will be generated by the defendants proposed development. Plaintiffs will have legal responsibility to pay these increased costs, the amount of which will be passed through to plaintiffs (and through the condominiums involved, directly to the individual unit owners) and payment will be secured, under the recorded documents, by a lien on the title to plaintiffs properties. I find and rule that this is sufficient to confer upon the plaintiffs the necessary standing to appeal the decision of the Board. That the assessments arise as liens, shows that their payment directly affects plaintiffs property interests. Increasing the assessments will produce a direct impact on the protected property rights of the plaintiffs; injury to those property rights is sufficient to confer standing. See Harvard Square Defense Fund, supra at 492-93.
C. Accident Rates
The accident rate for the intersection of Victory Road, Haul Road, and Tilden Commons Drive is 0.72 accidents per 1 million vehicles. The average crash rate reported by the Massachusetts Highway Department (MHD), for similarly situated intersections is 0.63 crashed per 1 million vehicles. The statewide average is 0.66 crashed per 1 million vehicles. Lyons testified that he was concerned about adding traffic to an intersection with a crash rate above average. However, even applying the lenient standard available to presumptive plaintiffs, I find that plaintiffs offered no evidence that the proposed development would in any meaningful sense increase the accident rates at this intersection in a way that brings about legal aggrievement for these plaintiffs. The evidence put in by plaintiffs on this point is scant and lacks credibility. Plaintiffs argue that the proposed development would increase the number of accidents, because, given the current slightly higher than average accident rate, 0.72 per million vehicles, and adding vehicles from the project, intuitively there will be less time elapsed between accidents. From this, plaintiffs advance the position that there will be a more dangerous intersection of Victory Road, Haul Road, and Tilden Commons Drive once the defendants project is built and occupied.
This line of argument is not based on credible, or even plausible, evidence. The expert evidence does not in any more than a superficial, unsupported way suggest what plaintiffs say it does. There is no real analysis here of the configuration and geometry of this intersection, particularly when it comes to how it will operate after the 260 Victory Road project opens and affects the movements of cars through the intersection. To have standing to appeal a decision of a zoning board, a plaintiff must offer specific facts to establish perceptible harm. Marashlian, supra at 724. To determine whether harm flows from the decision of the board, a fact finder must compare the impact after the challenged board decision with what exists before the decision; the harm asserted must flow from the challenged action by the board, not from general conditions. Barvenik, supra at 133. [Note 7] Here, there is not credible, plausible evidence that the proposed development will adversely change the accident rate at this one intersection.
D. Cut Through Traffic
I find the concerns voiced by plaintiffs about so-called cut through traffic to be wholly specious. Plaintiffs were unable to put forth any credible evidence tending to support even a plausible argument that traffic currently cutting through the Chapmans Reach condominium driveway network was a danger the proposed project would exacerbate. Even taking as true everything that Lyons and Nelson testified to, they did not make any showing that cut through traffic has existed in the past, or that traffic will commence cutting through once 260 Victory Road is complete.
Lyons testified that he witnessed, in September of 2005, one vehicle make a left turn off of Victory Road and into Chapmans Reach, which vehicle he believed was cutting through. Lyons then testified that he did not actually observe the vehicle cutting through, and that he could not see the eastern terminus of Tilden Commons Drive, where it intersects with Marina Drive. He thus, on his own evidence, was unable to establish that, even with respect to this isolated incident, the vehicle in question was actually cutting through, as opposed to heading to a destination within Chapmans Reach. Similarly, Nelson testified that she nightly observes vehicles she believes are cutting through, but that she has never actually observed a vehicle cut through because she physically cannot see the end of Tilden Commons Drive. None of the evidence on this point supports the plaintiffs contention that traffic now uses Chapmans Reach to cut across the larger Marina Bay development. Even more lacking is evidence that the 260 Victory Road projects vehicles will engage in this behavior, if the challenged permits are upheld. The evidence generally shows, to the contrary, that given the dimensions and location of the driveways within Chapmans Reach, their construction and operation (including the speed control measures in effect there), and the overall layout of the properties within Marina Bay, there would be no actual incentive for anyone to cut through Chapmans Reach. The only ones who might do so would be vehicles driven by lost and confused operators, who would head into Chapmans Reach in error, and, in all likelihood, only once.
E. Landscaped Island
I find that, as part of the challenged project, defendant 260 Victory Road, LLC has a plan to remove twenty feet of a landscaped island now in the middle of Victory Road, in front of the proposed development site, to accommodate the proposed relocated curb cut to the 260 Victory Road property. I find that the portion of landscaped median to be removed will be replaced with asphalt in an area approximately twenty feet by ten feet.
The argument that this alteration will add so much pavement to the Marina Bay road network to make an appreciable impact on the cost of maintenance is entirely without merit. The impact is negligible. The evidence was uncontroverted that the initial work would be performed, after all necessary approvals were secured, by 260 Victory Road at its own expense. My previous ruling that plaintiffs have standing based on the increased costs of road maintenance under the MB Access Agreement does not rely on the costs that might, in the future, be associated with the small patch of additional roadway created by removing this short piece of the median. The costs involved were not quantified at all in the evidence, and I am not, of course, in a position to speculate about them. The costs, in any event, would have to be considered in comparison with the costs now associated with the maintenance and upkeep of the landscaped median, about which there was no reliable evidence, either. The removal of this small strip of median, on the evidence at trial, is insufficient to confer standing on plaintiffs.
II. SPECIAL PERMIT
Having before me proper plaintiffs with standing, I now decide that the Board acted in error when it issued the Special Permit. Nothing at trial, or otherwise put before me since the summary judgment order issued in this case, causes me to reconsider the analysis on this point set out in that order. With the plaintiffs standing established, I now can reach the merits of the plaintiffs challenge to the Special Permit.
The Boards determination that Chapter 17.20.040.B.2 controls, requiring only 325 square feet of lot area per dwelling unit, was incorrect. Chapter 17.20.040.B.5 is the governing dimensional requirement, and it requires 2,500 square feet per dwelling unit. The Development lot submitted to the Board as the site of the Special Permit project had insufficient size to allow the construction of the contemplated eighty dwelling units. Given the 2,500 square foot requirement per dwelling unit, 260 Victory Road could not build more than twenty five dwelling units on its 62,250 square foot lot. [Note 8] The Board has exceeded its authority, and has proceeded on a legally untenable ground in issuing the Special Permit, which must be annulled.
Judgment accordingly. [Note 9]
Gordon H. Piper
Dated: April 13, 2009.
[Note 1] The rebuttable presumption of standing is provided to parties in interest, which include the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list. See G. L. c. 40A, § 11.
[Note 2] Plaintiffs, upon learning of the courts summary judgment ruling, argued that on the summary judgment record, they were, without the need for any further hearing of evidence, entitled to have the court establish conclusively their standing, notwithstanding the palpable dispute of fact in the summary judgment record about whether or not, in the views of the traffic engineers, the plaintiffs would be at all adversely affected by traffic generated by the defendants proposed project.
Plaintiffs took, and continue to take, the position (a) that, based on their expert affidavit at summary judgment, the decisional law required that their standing at that time be established definitively by the court for all purposes in this case, and (b) that the court could not permissibly convene a trial to resolve the contradictory expert evidence on traffic impacts which lies within the summary judgment record. Plaintiffs read the guiding cases to require that, once a party claiming aggrievement comes forward with credible or plausible evidence of particularized harm in an affidavit put in to oppose even a fully-supported motion for summary judgment, the inquiry stops because the party claiming aggrievement has met his or her burden. Plaintiffs say this is nothing more than a burden of production, rather than a burden of persuasion.
Nothing in Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 (2006), Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (1996) or Butler v. Waltham, 63 Mass. App. Ct. 435 (2005), compels the conclusion for which plaintiffs advocate. These authorities do not stand for the proposition that even a single affidavit put in by a plaintiff claiming aggrievement (in opposition to a well-supported summary judgment motion) will require a ruling that the plaintiff is aggrieved, simply because the plaintiffs affidavit in the summary judgment record, standing alone without regard to any other evidence, might be sufficient on which to base a finding of aggrievement.
Summary judgment, by its very nature, does not permit any weighing of evidence as to its credibility or persuasiveness. If there is no competent evidence in the summary judgment record to support one side or the others contentions as to a particular basis for aggrievement, then the party who fails to show that that evidence will be forthcoming at trial will lose the opportunity to have a trial to decide the point. (That is what happened in this case on a number of grounds--other than traffic impacts--claimed by plaintiffs as a basis for their aggrievement; because there was no evidence adduced by them when challenged by the private defendant, those bases for aggrievement were not ruled sufficient to be decided by trial.)
But if there are competent opposing affidavits as to a proper basis for aggrievement, summary judgment cannot be granted, because the evidence needs to be heard from live witnesses, in a trial setting in which the court, on all the evidence, determines whether or not plaintiffs have put forward credible evidence showing the plaintiffs plausibly will sustain injury of the recognized sort. Credibility remains the province of the trial judge, as trier of fact, and the responsibility to assess credibility and be persuaded by evidence is not removed from the judge simply because the question to be decided is standing--whether the particularized harm of the proper type necessary to constitute legal aggrievement has been demonstrated.
Butler, on which plaintiffs relied heavily for their position that this case should have ended at summary judgment, was a case decided after trial (a trial held after denial of summary judgment on the question of standing) and nothing in Butler purported to change the standards for reviewing Rule 56 motions in cases when zoning standing is the issue on summary judgment. It is certainly true that the Appeals Court in Butler decided that, in a case tried on the issue of standing, the ordinary civil burden of proof by a preponderance of the evidence is too high a standard to apply. The Butler courts focus, and that of courts which have followed it, see Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 (2008), is on whether there is or is not credible evidence of qualifying harm. The credible evidence insisted upon by the Butler court is on evidence which is credited--believed, that is--by the trier of fact. If in a particular case at trial the evidence of a plaintiff showing aggrievement is utterly disbelieved by the court, or is found by it to be entirely lacking in persuasiveness, the court would find and rule that the plaintiffs evidence was not entitled to be credited, and that no reasonable person could find, on the evidence presented at trial, that there had been the requisite proof that plaintiffs plausibly would sustain harm as a result of the decision of the board. The plaintiff would be left without credible evidence of aggrievement, and absent a plaintiff with standing, the court would be obliged to dismiss the complaint.
The Butler court certainly did remind trial courts that there is a distinction between the level of proof required to show aggrievement and that meant to prove the plaintiffs case on the merits. This reminder, derived out of cases like Marashlian, supra, is important; it means that a plaintiff who shows aggrievement at trial does not automatically prevail on the merits, even if there is a close nexus between the grounds asserted for standing and those on which the plaintiff challenges substantively the result below. But this clear and correct principle does not yield the novel one advocated for by plaintiffs in this case: that any time a plaintiff at summary judgment puts in an opposing affidavit, the courts task in determining standing is at an end. The Butler court did not say in that case that the litigation should have terminated at summary judgment, and never even should have reached trial. And yet, that is the result plaintiffs say should have obtained in the case at bar. In this case, the questions of fact left in controversy after summary judgment required trial by the court, and the finding of facts on those points is what I now turn to in this Decision.
[Note 3] Both traffic hour is 4:00 PM to 6:00 PM.
[Note 4] The two reports studied different intersections, so there is no way directly to compare the level of service analyses from each report.
[Note 5] This is so notwithstanding that, in a few instances, the extra few seconds involved might cause a reduction in the level of service measurements used by the traffic engineers to grade intersection performance. This occurs in these few instances only because the existing traffic passing through these intersections is right on the line dividing one level of service from the level below it. But the slight incremental delay produced by the project, whatever the letter grade that the intersection will have, results in only a very slightly more delayed intersection once the projects predicted traffic enters the crossing.
[Note 6] In 2007, Chapmans Reach had 124.967 shares, making it responsible for 13.61 percent. The Seaport had 73 shares, or 7.95 percent. Twelve developments participate in the current share allocation, totaling 918.087 shares. The additional units at the proposed 260 Victory Road project would bring the total number of shares to 932.118.
[Note 7] Under Marashlian, a comparison of harm threatened post-decision with harm threatened by some other hypothetical use available as of right, while potentially helpful, is not dispositive.
[Note 8] In so deciding, I rely upon and adopt the analysis on this point in the summary judgment order.
[Note 9] Since the trial in this case, the parties have made known to the court proceedings in the City of Quincy to amend the zoning ordinance in a way which at least some of the parties contend may yield a change in the way the challenged projects density would be computed. There are issues about the effectiveness of these proceedings to amend the ordinance, given a reported veto by the Citys Mayor and the action following that veto by the City Council. There also are issues about whether and how such an amendment, even if in force now, ought to apply to the Special Permit and the project it authorized.
The court will defer entry of judgment in this case for a short time to allow the parties, by their counsel, to weigh in on these questions. All parties are to confer through counsel and then file, within thirty days, a joint written report giving their collective or respective views on how the court ought to address these issues, and whether or not entry of judgment in this case ought be deferred to address them. Based on the report the court receives, it will either schedule a hearing or proceed, without hearing, to issue either the judgment or a further order.