REIN URITAM, JUSTINE KENT-URITAM, KENNETH W. GRANT, SHARON HAWKES GRANT, RONALD M. TATERKA, AND SUSAN TATERKA v. JANE REMSEN, HENRY FAULKNER, GREGORY SULLIVAN, AND MARK SARRO, AS THEY CONSTITUTE THE DOVER PLANNING BOARD; AND JONATHAN FRYER

By virtue of the instant action, initiated pursuant to G. L. c. 40A, § 17, plaintiffs seek judicial review of a decision of the Dover Planning Board (Board) granting Special Permit Site Plan Approval (Permit) to defendant Jonathan Fryer (Fryer). That decision, dated June 25, 2007, authorizes the construction of a building having a footprint of 2,448 square feet, intended to house a motor club (Club). The subject property straddles Single-Family Residence and Manufacturing-Industrial districts. These zoning districts allow club uses upon site plan approval. The Permit includes numerous conditions intended to mitigate the possible negative effects of the proposed Club upon the surrounding area.

On appeal, the plaintiffs, a group of Fryer’s neighbors residing on Haven Street, Dover, Massachusetts, contend that they are aggrieved by the Board’s decision, inasmuch as the Club will purportedly diminish the value of their properties; increase the flow of traffic along Haven Street, a two-lane town-owned roadway; result in loud noises at all hours of the day and night; and pose a substantial threat of groundwater contamination.

Plaintiffs further assert that the relevant bylaw provision is ambiguous. They argue that it prohibits commercial garages in residential zones, while it allows clubs, a category of use that could, in their view, reasonably encompass such garages, in those same zones. To reconcile this tension, the plaintiffs ask this court to rule as a matter of law that the bylaw definition of club cannot include a motor club. Such a ruling would render the Board’s decision legally untenable. Alternatively, the plaintiffs assert that the Board’s decision was arbitrary and capricious because it did not adequately address the possible negative impacts of the development on the surrounding area in its conditions.

A one-day trial was held on September 11, 2008, at which a stenographer was sworn to take the testimony of Jonathan Fryer, Sharon Grant, Ronald Taterka, Justine Kent-Uritam, and William D. Carlson. The ten exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal. On the day following trial, this court conducted a view of the Locus.

On all the testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

1. Defendant Jonathan Fryer owns and resides at 16 Haven Street, Dover (Fryer Residence), together with his wife. [Note 1] He has resided at that location for approximately 14-15 years. This residential parcel appears as Lot 2C on the Approved Site Plan and consists of .89 acres or approximately 38,809 square feet. [Note 2]

2. Fryer is also the owner of 18 Haven Street (Locus / subject parcel), [Note 3] a lot adjacent to the Fryer Residence. In large measure, it sits to the rear of the Fryer Residential parcel. It is depicted on the Approved Site Plan as Lot 1C, and consists of .82 acres or approximately 35,756 square feet. Lots 1C and Lot 2C were created by means of a plan endorsed Approval Not Required by the Board.

3. Lot 1C is configured as a “pork-chop” lot, insofar as it calls to mind the outline of a pork chop, having minimal frontage with considerably greater width to the rear of the lot. Toward the front, a narrow rectangular portion, consisting of approximately 5,849 square feet, sits within a single-family residence district. This narrow portion provides frontage onto Haven Street and serves as a driveway for the Locus. The proposed structure itself will lie within a manufacturing / industrial district.

4. Plaintiff Sharon Hawkes Grant (Grant) resides at 26 Haven Street (Grant Residence), a 2.3 acre parcel, with her husband Kenneth W. Grant, also a named plaintiff herein. They have resided at that location for 22 years. While the Grant Residence does not abut Locus, it sits on the same side of Haven Street, separated by two lots. [Note 4] The Grant dwelling sits towards the front of this long, rectangular 2.3 acre parcel. The dwelling itself, described as “2900 square feet on two stories,” [Note 5] is nonetheless located several hundred feet back from the street. [Note 6]

5. While Grant previously had been a real estate agent, no attempt was made at trial to qualify her as an expert in the field of real estate appraisal or valuation. [Note 7]

6. Grant is a gardener and horticulturalist, who enjoys the outdoors, and, who, weather permitting, spends afternoons in her expansive backyard. From her yard, she is able to hear and to observe activities taking place at the Fryer Residence, which sits on a knoll at a higher elevation than her own property. The clubhouse, however, will not be readily visible from Grant’s backyard. In order to see it, she would likely have to peer over a six-foot tall fence. [Note 8] Grant additionally takes frequent walks along Haven Street, albeit with some trepidation because of its lack of sidewalks and the speed of its motorists. [Note 9]

7. Plaintiff Ronald M. Taterka (Taterka) resides at 19 Haven Street (Taterka Residence), with his wife, also a named plaintiff, and daughter. The Taterka Residence sits directly across the street, “a little bit to one side,” from the Fryer Residence, on a lot of approximately one acre. [Note 10] The subject parcel’s proposed driveway would be visible to Taterka from the front of his own driveway. [Note 11] As is the case with the other plaintiffs, Taterka enjoys walking along Haven Street, notwithstanding the absence of sidewalks.

8. Plaintiff Justine Kent-Uritam (Uritam) resides with her husband Rein Uritam, also a named plaintiff, at 23 Haven Street (Uritam Residence), on a 2.7 acre parcel. The Uritams have resided at that location for 32 years. The Uritam Residence is a three story dwelling which “is a little over 4,000 square feet . . . [n]ot including the basement.” [Note 12] It directly abuts that of the Taterkas to the west, and, as such, sits up the street from Locus. Uritam is able to see the Fryer Residence from near the end of her driveway during the summer months when foliage partially obstructs her view and from her home during the winter when the trees are bare.

9. Uritam serves as a consultant for banks. She has held a real estate broker’s license for over 20 years. Her consulting duties include the review of commercial and residential appraisals conducted by others for “a variety of banks.” [Note 13] No attempt, however, was made at trial to qualify her as an expert in the field of real estate valuation.

10. Uritam and her husband consider themselves “amateur landscape architects and gardeners,” who have seven organic gardens, which they tend for considerable periods between April and October. [Note 14] Uritam also takes frequent walks along Haven Street, despite its lack of sidewalks. As is true of other homes in the area, her residence is serviced by a private well. Some twenty plus years ago the Uritam well was contaminated by toxic substances including gasoline. [Note 15]

11. Haven Street in Dover is heavily wooded and generally rural in character. The parcels abutting the way are relatively sizeable, while the homes are correspondingly large in scale. The floor-to-area ratios are not high; as a consequence, the neighborhood is not particularly dense. The relevant stretch of Haven Street is exclusively residential, each dwelling having a private well and septic system. The Street measures approximately twenty feet in width, is divided by a solid yellow line, has solid white edge lines, and has no sidewalks. There are two significant intersections where Haven Street meets Center Street and Church Street. At the former intersection to the east, Haven Street is stop sign controlled, while, at the latter intersection to the west, Church Street is stop sign controlled. The parties generally agree that, though otherwise quiet, Haven Street experiences traffic swells during peak commuting hours. [Note 16] On occasion, motorists travel upon the roadway at excessive speed. [Note 17] The parties estimated that each family residing on Haven Street owns two or, perhaps, three vehicles.

12. The Locus directly abuts the Town of Dover Highway Department Lot (DHD Lot) to the south. At the DHD Lot, the Town stores its equipment for clearing and maintaining roads, as well as for landscaping and snow removal. The Highway Department maintains and repairs its trucks and heavy machinery in a large rectangular structure at the DHD Lot. [Note 18] Salt and sand sheds, which are less than twenty-five feet from Fryer’s lot line and approximately 100 feet from his proposed structure, are also located there. In all, there are approximately four or five town-owned structures on the DHD Lot along with two cell towers, 150 and 140 feet tall respectively, one of which is only twelve feet from Fryer’s lot line. The other is somewhere between 80 and 100 feet from that boundary.

13. The DHD Lot has two entrances, one on Haven Street and the other closer to Dover Center on Dedham Street. [Note 19] The latter, which merges with Springdale Avenue, provides the primary access point for the Highway Department. [Note 20]

14. Pursuant to the Permit, Fryer proposes to improve the Locus with a clubhouse structure that would accommodate the storage of automobiles together with associated equipment. As planned, the structure will consist of a useable basement, a first floor, and an attic for storage. [Note 21] The basement level would have four garage doors to the rear of the building to be used for the storage of up to twelve automobiles. The first floor would have a single garage door on its easterly side, allowing automobiles to enter and be worked on. [Note 22] The structure will have a total area in excess of 5,000 square feet. Although the initial plans show that the development will also include forty parking spaces around the exterior of the structure and along the driveway leading to Haven Street, the Board partially waived this feature at the applicant’s request, requiring that there be only eleven parking spaces [Note 23] behind and beside the clubhouse.

15. The Permit includes forty-nine conditions, thirty of which are specific to this project and the remaining nineteen are general conditions of approval. [Note 24] The project-specific conditions may be categorized as follows:

(a) Access, Pedestrian and Vehicular Circulation, Parking;

(b) Drainage;

(c) Landscape/Design;

(d) Compliance with Requirements of Other Municipal / State Boards / Departments; Miscellaneous.

Among the conditions imposed by the Board in category (a), Access, are the following:

1. [Note 25] All elements of access onto and within the site (including any features added in the future) shall conform to the requirements of both the federal Americans with Disabilities Act and the state Architectural Access Board. (emphasis added)

2. The driveway and parking spaces on site shall be constructed of gravel.

Among the conditions imposed by the Board in category (b), Drainage, are the following:

6. Drainage on site shall comply with the Groundwater Protection Bylaw requirements for Groundwater Protection District 1.

8. Any floor drains must be connected to a tight tank to ensure no contamination of groundwater. [Note 26]

Among the conditions imposed by the Board in category (d) Miscellaneous, are the following:

19. All construction and all activities on the site after completion of construction shall comply with the provisions of the Ground Water Protection Bylaw for Ground Water Protection District 1.

20. Engine idling on site shall be in compliance with M.G.L. c. 90, s. 16A [Note 27] and the regulations promulgated thereunder[.]

21. The number of vehicles stored on site shall be limited to 12.

22. Prior to issuance of a building permit, the applicant shall provide documentation that a non-profit club has been created under MGL Chapter 180, and a copy of the Articles of Organization of said club shall be provided to the Planning Board.

23. The number of club members shall be limited to 25.

24. There shall be no subleasing of space to automobile mechanics and no commercial automobile maintenance shall take place on the premises.

25. There shall be no vehicle sales or leases to the general public on the premises.

26. No hazardous waste, oil, gasoline or other petroleum products shall be generated or stored on the premises. All refuse shall be stored inside the building until it is removed for offsite disposal.

27. There shall be no more than two vehicles stored outside over night and any such storage shall be limited to the rear of the building in spaces 14-20. . . .

28. There shall be no outside noise generating activity between 5:00 PM and 8:00 AM every day. After 5:00 PM all work shall take place inside. [Note 28]

Under the heading GENERAL CONDITIONS OF APPROVAL, the Board imposed enforcement measures, including “the right to inspect the site for compliance with the approved site plan, at any time, with the cost borne by the applicant,” and sanctions for any noncompliance. [Note 29]

16. William D. Carlson (Carlson) testified on behalf of the plaintiff. The parties stipulated that “he is an expert in the field of traffic engineering.” [Note 30] Carlson was tasked with conducting a traffic study that would project the likely impact of the project upon Haven Street’s traffic flow. Based upon the Institute of Transportation Engineers (ITE) [Note 31] Standards, Carlson questioned the very need for such study. Those standards call for traffic studies only when a proposed development is likely to result in 50 to 100 new vehicle trips during peak commuting hours daily, during the week, [Note 32] i.e. a situation that does not pertain in the instant matter.

17. Carlson commenced his study by visiting the Locus, observing traffic flows, sidewalks and curbing, and field measuring the street width. In March of 2008, he placed an automatic traffic recorder alongside Haven Street with a tube crossing the way. The device recorded the traffic flow over a particular weekend. It reported a flow of 550 vehicles on Sunday and a flow of 750 on Saturday. It is uncontroverted, and this court so finds, that these figures are well under capacity for a roadway of Haven Street’s dimensions. [Note 33]

18. In estimating the number of new vehicle trips that would be generated by the clubhouse, Carlson utilized a trip generation manual issued by ITE, which projects the number of trips a site will generate based typically upon use and square footage. As that manual did not specifically reference motor clubs, Carlson sought additional detail from Fryer regarding the motor club and its proposed operation. [Note 34]

19. Carlson predicated his study upon several assumptions. He first developed what he deemed to be a worst-case scenario concerning the concentration of trips likely generated by the project. [Note 35] He posited that the Club would have 25 members, [Note 36] all of whom would arrive and leave at roughly the same time. They would arrive within the same hour, stay for three to four hours, and then leave within the same hour. On this basis, each meeting would generate 25 trips in and 25 trips out, occurring at about the same time.

Second, he assumed that the Club would meet once a month during the winter with an occasional evening meeting, and once or twice a month during the summer with most meetings occurring on weekends. [Note 37] Finally, he assumed that most of this traffic would be coming and going from Center Street to the east, and the nearby corridors to Interstate 95. He concluded that the presence of the motor club would increase the relevant traffic flows by seven percent on Saturdays and ten percent on Sundays.

According to Carlson, such an increase would have minimal impact upon Haven Street traffic because the relevant stretch of that roadway is free-flowing, and existing traffic levels are already so low. He opined that, while nearby abutters might notice a few additional trips along that stretch by Club members, they would not experience any negative effect upon the use and enjoyment of their properties resulting from increased traffic. As this conclusion was not effectively contested, this court finds that the presence of the clubhouse will have, at most, a negligible impact upon neighborhood traffic levels.

20. The sight distances at the intersection of the Locus driveway and Haven Street are especially significant to traffic safety. These sight distances relate to the distances at which a driver of one vehicle, coming from either direction, can see another automobile pulling in or out of the driveway at Locus onto Haven Street. In determining safe sight distances, Carlson considered the topography and, as the weather changed, varying conditions of the roadways.

Applying the American Association of State Highway and Transportation Officials (AASHTO) standards, a safe sight distance for a vehicle traveling at 30 miles per hour would be 200 feet; at 35 miles per hour, 250 feet; and at 40 miles per hour, 305 feet. Most vehicles traveled the relevant stretch of highway at between 30 and 40 miles per hour.

21. Conducting a field measurement, Carlson found that traveling westerly towards Center Street from Locus, the sight distance is 500 feet, and approaching the Locus easterly from Center Street, the sight distance is 400 feet. As these conclusions were not controverted, this court adopts them as its own findings. Accordingly, the sight distances at the intersection of the site driveway and Haven Street are well within acceptable AASHTO Standards as specified above.

22. Carlson indicated that if Fryer built a single-family residence at the Locus, based upon the ITE standards previously cited, the projected trip generation would be 10 trips per day, 70 trips per week, and 280 trips per month, in contrast to the 50 trips per month that would be generated by virtue of the proposed clubhouse. It follows that if the Club were to meet weekly rather than monthly, it would still generate far fewer trips than would a single-family residence. As this contention was never adequately refuted, this court finds that the trip generation associated with a single family residence at the Locus, would be far greater than that associated with the projected operation of the motor club.

23. Fryer, an automobile enthusiast, currently owns three vehicles that are alternatively sports, collectible, or antique cars, in addition to the automobile he drives for ordinary use. He is also a part owner of a commercial garage in Needham at which he completes repairs on his automobiles.

24. He has been a member of a small group of fellow automobile enthusiasts for between twelve and fifteen years. The group, consisting of twelve individuals, takes trips to the Larz Anderson Auto Museum in Jamaica Plain (Larz Anderson), which holds car shows on Sundays. In conjunction with these outings, the group conducts barbeques and from time to time travels to New Hampshire to spend weekends at a race track in that state. When the Town of Dover holds its Old Home Day, the group typically attends the event’s antique car parade. Further, the group gathers and goes to restaurants, and assembles approximately one Saturday morning a month in order to discuss problems that the members may be having with their vehicles.

25. Subject to the restrictions imposed by the Board, Fryer intends to organize a non-profit motor club, together with the members of his group. Members would pool their resources in order to fund the construction of the proposed clubhouse. It is anticipated that the Club will impose a dues structure to pay for future expenses.

26. As to the type of use, Fryer and his co-members will utilize the clubhouse structure for storage and to conduct minor maintenance upon their automobiles. Accordingly, Fryer does not intend to do oil changes, or to otherwise undertake repairs or maintenance of the sort conducted at his Needham commercial garage. There will, moreover, be no automobile lift installed at the Club. Instead, members would “tinker” at the Club in a manner characterized as more diagnostic than reparative. [Note 38] At that, the “tinkering” would constitute but a modest portion of the members’ activities. [Note 39] For example, a television set may be acquired so that members could watch NASCAR races together, or otherwise engage in social activities.

27. As to the frequency of use, Fryer projected that the Club would meet at the new structure once a month in the evening during the winter, i.e. the time during which members would be most likely to store their vehicles on site. For the remainder of the year, the meetings would be more sporadic, [Note 40] though Fryer acknowledged that the clubhouse would provide a convenient meeting point for members. [Note 41] He, nevertheless, was unable to gauge how the interest level would increase once the clubhouse became operational, because the group historically had no place to meet. In this regard, Fryer had already received a number of inquiries from people interested in joining the Club upon its official creation. Inasmuch as the plaintiffs did not effectively dispute this testimony, this court finds entirely plausible these projections as to frequency of clubhouse use. Based on the foregoing findings of fact, this court rules as follows:

1. Under G. L. c. 40A, § 17, only persons aggrieved by a board’s decision may bring suit seeking judicial review of that administrative disposition. 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. 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”). [Note 42]

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 43] 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 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”).

Nevertheless, the defendant may rebut this presumption at trial by proffering expert testimony that affirmatively refutes plaintiffs’ contentions, see Dwyer v. Gallo, 897 N.E.2d 612, 616 n. 5 (2008) (opining private defendant’s proffer of evidence affirmatively contesting allegation of diminution in value sufficient to rebut plaintiff’s presumed standing), or by eliciting plaintiffs’ testimony that casts doubt on the factual foundation of their averments of aggrievement. See Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 216 (2003) (holding plaintiff’s failure at trial “to show that her own legal rights were likely to be affected” should have caused her presumptive standing to recede).

Here, Carlson’s expert testimony established that the Fryer project would have minimal effect upon area traffic patterns and safety. See Findings of Fact (Findings), ¶¶ 17-22. Fryer’s counsel, moreover, adduced testimony from plaintiffs on cross examination that sheds doubt upon their allegations of harm resulting from the Board’s decision. See, e.g., Tr., pp. 135 (reproducing Grant’s testimony in which she conceded that if all 49 conditions were adhered to, she would have no objection to the proposed project.) Tr., p.149 (providing testimony of Taterka in which he admitted that should Fryer adhere to the conditions he would suffer no sonic injury from the development.) Accordingly, this court rules that Fryer effectively rebutted plaintiffs’ presumption of standing.

As a consequence, 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, 59 Mass. App. Ct. at 211, 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 omitted). Finally, as suggested above, establishing that a decision harms the plaintiffs is not sufficient alone to confer standing; plaintiffs must also show that 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 principles in mind, this court turns its attention to the findings of fact set forth above. At trial, plaintiffs raised diminution of value, traffic, noise and groundwater contamination as grounds for standing. Each will be considered in turn. [Note 44]

2. Diminution in Value. The Supreme Judicial Court has recognized diminution of value as a harm that may confer standing in zoning appeals. See 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 in so far 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 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 diminution of real estate value to a legitimate and independent zoning interest. Id.

Here, it is difficult to identify what, if any, legitimate zoning interest relates to plaintiffs’ claim of diminution of value. Plaintiffs believe Fryer’s project will negatively impact the rural and residential nature of their neighborhood, transforming it into a commercial or mixed-use area, and thereby diminishing the value of their properties.

Appellate decisions recognize an abutter’s “interest in preserving the integrity of the district” from nonconforming uses. Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210 , 217 (1975) (holding plaintiffs could not have such an interest because of their own similarly nonconforming uses). [Note 45] This interest, however, is not readily available to these plaintiffs, inasmuch as the clubhouse will not be in the same, single-family residential district. [Note 46] However, even if the clubhouse were to be built in the residential district, a club use is not nonconforming in such a district, but rather one that is permitted upon site plan review. [Note 47]

Beyond an interest in preserving the integrity of the zoning district, the decisional law is emphatically clear that “[s]ubjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close [or as in this case rural] neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.” Barvenik, 33 Mass. App. Ct. at 132-133. See also Denneny, 59 Mass. App. Ct. at 215 (holding “[a]n abstract interest in the enforcement of zoning laws is not sufficient” to confer standing). Accordingly, plaintiffs’ fear that the Club will destroy the aesthetics or feel of the neighborhood does not present a harm cognizable under the zoning law.

Even if plaintiffs could successfully tether their claims of diminution in value to a legitimate zoning concern, they nonetheless failed at trial to substantiate this claim with credible evidence. Plaintiffs did not offer expert evidence on this issue, and, while case law indicates that a property owner may give accurate testimony on the current value of his home, see Board of Assessors of Holbrook v. Dennehey, 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”), it is this court’s opinion that a lay witness, even a home owner, does not possess the requisite knowledge and expertise to project the economic impact of a proposed development upon the value of his or her home (or upon area home prices, in general). See Standerwick, 447 Mass. at 36 (affirming discretion of trial judge to determine whether a “concern [is] ‘beyond the scope of common knowledge, experience and understanding’ and that expert testimony [is] therefore necessary to establish aggrievement”), quoting from Barvenik, 33 Mass. App. Ct. at 138 n. 13.

Thus, even though there is some evidence on the record that Grant and Uritam are licensed real estate brokers, no attempt was made to qualify either as an expert witness, nor was there any indication that either conducted an objective, industry-accepted analysis on this point. Rather, they provided, at best, mere conclusory statements. [Note 48] As such, plaintiffs’ claims of diminution in real estate value do not furnish them with standing, because they are neither tethered to a legitimate zoning interest, Standerwick, 447 Mass. at 31-32, nor based upon “evidence [upon] 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.

3. Traffic. The impact of the proposed development upon area traffic fits within the zone of concern of land use regulation. Massachusetts appellate courts have held such adverse effects, when demonstrated with the appropriate quantity and quality of evidence, and shown to be individualized, are sufficient to provide a basis for standing under G. L. c. 40A, § 17. See Marashlian, 421 Mass. at 722 (holding 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”).

Not all traffic-based objections to zoning relief, however, will furnish a plaintiff with the requisite standing. Such an injury must be more than speculative, and must bear some nexus to the plaintiff’s use and enjoyment of his property; it is not enough merely to demonstrate an increase in area traffic levels. See Cohen, 35 Mass. App. Ct. at 623 (ruling failure to raise “any specific injury that the owners of the parcel might experience” vitiates claim of traffic-based aggrievement); Barvenik, 33 Mass. App. Ct. at 136 (holding plaintiffs’ traffic-based objections too speculative to furnish them with standing); Avin v. Bd. of Zoning Appeal of Cambridge, 8 LCR 339 , 341 (2000) (Misc. Case No. 263376) (Green, J.) (ruling “evidence at trial demonstrates only a general increase in traffic . . . , and not any particularized effects on any plaintiff’s property”), affm’d, 51 Mass. App. Ct. 1109 (2001). Here, the plaintiffs’ traffic-based claims of aggrievement are too speculative to afford them standing.

At trial, Carlson, a professional traffic engineer, testified on Fryer’s behalf. He established both that the traffic increase occasioned by the clubhouse would not render Haven Street at, over, or even near to capacity; and that the sight distances between the intersection of the relevant site driveway and Haven Street, and oncoming traffic traveling from both directions, are more than adequate. Despite plaintiffs’ efforts on cross-examination, Carlson’s testimony was not effectively disputed.

Plaintiffs’ counsel elicited testimony from Carlson that certain of his projections were based upon information provided by Fryer, the person best situated to speak, for example, to the number of meetings the motor club was likely to hold. However, even assuming that Fryer’s estimates were overly conservative, so that Club meetings are more likely to occur weekly, rather than monthly or bi-monthly, plaintiffs never effectively responded to Carlson’s conclusions that (a) per ITE standards, a single-family home would still generate more traffic than would the clubhouse, and that, (b) the traffic so generated would neither overburden Haven Street in any way, nor would it negatively impact the plaintiffs.

Furthermore, most of plaintiffs’ traffic-based claims relate to multi-modal forms of transportation, such as pedestrian and bicycle, along Haven Street. These claims, however, are neither particularized, nor supported by sufficient evidence. In this regard, the plaintiffs who testified at trial, purportedly walk along Haven Street with regularity. See Findings, ¶¶ 6, 7 & 10. Any concerns about pedestrian safety along that road, however, are inadequately particularized. Thus, even assuming, arguendo, that the clubhouse would somehow precipitate a traffic-based injury, that injury would be no different to the plaintiffs than to any other member of the public who traverses the way on foot.

Moreover, plaintiffs failed utterly at trial to demonstrate that any such traffic-based injury would flow from the use of the clubhouse. The only evidence that this court has to consider on this point is the testimony of Fryer’s traffic expert, which suggests that the Club’s impact upon Haven Street traffic will be minimal. In point of fact, plaintiffs’ claims in this regard do not stray beyond the realm of conjecture. They fail, therefore, to confer the requisite standing.

4. Noise. The decisional law indicates that noise can be a viable source of aggrievement in zoning appeals. See Lovequist v. Conservation Comm’n of Dennis, 379 Mass. 7 , 13-14 (1979) (including “noise” in list of “typical . . . concerns . . . reflected in the zoning process”); Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) (ruling “concerns about increased noise . . . relate directly to the objectives of the density regulation at issue”). This court’s reading of the case law suggests that, as with a diminution in value, a noise-based injury may provide the requisite aggrievement to confer standing. However, for that harm to be cognizable, it must relate to a legitimate zoning interest, such as minimizing density or the orderly and beneficial organization of land uses. See Bertrand, supra.

Once again, plaintiffs’ noise-related concerns, fail to rise beyond the level of mere speculation. The record is bereft of evidentiary support for such claims. [Note 49] Moreover, the plaintiffs conceded under oath, that should the conditions imposed by the Board be honored, they would experience no harm. [Note 50] The mere possibility, however remote, that Fryer may contravene one or more of the Board’s conditions will not suffice to confer standing.

This court determines, therefore, that the plaintiffs have failed to demonstrate, with credible evidence, that the clubhouse will be the source of noise-related injury. Consequently, they have failed to establish standing on this basis.

5. Groundwater Contamination. Under appropriate circumstances, substantiated fears of groundwater contamination may provide the basis for standing under G. L. c. 40A, § 17. See Bertrand, 58 Mass. App. Ct. at 912 (including “concerns about [the] environmental implications of two nearby septic systems instead of one . . . relate directly to the objectives of the density regulation at issue”). See also Sweenie, 451 Mass. at 544-545 (finding groundwater protection as specially protected interest under the Groton zoning by-law). Though Dover does have a Groundwater Protection Bylaw, [Note 51] plaintiffs fears in this regard are wholly unsubstantiated. See Sweenie, 451 Mass. at 545 (holding “language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest . . . cannot be conflated with the additional, individualized requirements that establish standing”).

Here, plaintiffs’ arguments mirror those advanced by them in asserting noise-related injuries, i.e. that Fryer will not comply with the conditions of the Permit. For substantially the same reasons set forth above, Rulings of Law (Rulings), ¶ 4, this argument is unavailing. Moreover, the Supreme Judicial Court has already rejected arguments in this context to the effect that “accidents happen” and will happen here, as overly speculative. See Sweenie, 451 Mass. at 545 n. 14 (internal quotations omitted). As such, plaintiffs’ allegations concerning potential groundwater contamination cannot confer standing, predicated as they are on mere conjecture. [Note 52]

6. Even assuming plaintiffs had met their burden in demonstrating the requisite standing, their arguments on the merits are nonetheless, unconvincing. In their post-trial brief, plaintiffs first advance the argument that the Board issued the Permit under a bylaw provision that is “facially inconsistent” with others. Plaintiffs’ Requests for Findings of Fact and Rulings of Law (Plaintiffs’ Post-Trial Brief), Requested Rulings of Law (Requested Rulings), ¶ 2. Expanding upon this argument, plaintiffs state that “although garages and parking areas are prohibited in the residential zone, ‘clubs’ are allowed[;] the zoning bylaws do not define [this term, and t]he question therefore, is whether a ‘club’ that is engaged in a use that is otherwise prohibited, is also prohibited.” Ibid. In construing the relevant provisions, however, this court does not find such legal dissonance. It is unprepared to credit plaintiffs’ premise that there is no legally-significant distinction between a non-profit automobile club and a commercial garage or parking lot.

Under the Dover Zoning Bylaws (Bylaws), § 185-10(2), [Note 53] in an R-1 single-family one acre residential district, a “[c]lub when not conducted for profit and containing no overnight facilities” is an “A” use, meaning it is allowed, rather than needing a special permit, [Note 54] and only requires Site Plan Approval. [Note 55] In contrast, § 185-10(25) & (26) specifically prohibit, [Note 56] inter alia, a “garage” and “[p]arking areas” in R-1 districts. [Note 57] Definitions of these specific uses are absent from its definitional section, § 185-5.

When construing undefined terms in a zoning bylaw, the Supreme Judicial Court, in the seminal decision of Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, observed as follows:

The meaning of a word or phrase used in a local zoning enactment is a question of law, and is to be determined by the ordinary principles of statutory construction. Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning ‘without regard to . . . [the court’s] own conceptions of expediency.’

382 Mass. 283 , 290 (1981), quoting Kurz v. Board of Appeals of N. Reading, 341 Mass. 110 , 112 (1960) (ultimately quoting from Commonwealth v. S. S. Kresge Co., 267 Mass. 145 , 148 [1929]) (internal citations omitted). The Court added that in discharging its exegetical duty, a reviewing court must “derive the words’ usual and accepted meanings from sources presumably known to the [bylaw’s] enactors, such as their use in other legal contexts and dictionary definitions.” Id., quoting Commonwealth v. Zone Brook, Inc., 372 Mass. 366 , 369 (1977) (internal quotations omitted).

In this regard, appellate decisions dictate that a reviewing court accord “the local authority charged with the administration of the by-law . . . some measure of deference,” such that if “the board’s interpretation is reasonable . . ., the court should not substitute its own judgment.” Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004), citing, e.g., APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000). Affording the Board its due deference, this court cannot conclude that the Board’s reading of “[c]lub when not conducted for profit and containing no overnight facilities,” as inclusive of a motor club, is unreasonable. [Note 58] Nor, does this court discern any inconsistency between allowing such “not conducted for profit” clubs, while prohibiting “garage[s]” and “parking areas,” both of which the board reasonably interprets as for-profit enterprises. [Note 59]

Accordingly, this court rules that a “[c]lub when not conducted for profit and containing no overnight facilities” encompasses motor clubs, such as that allowed by the Permit which is at the core of the instant action. I specifically reject the notion that the motor club at issue, is a pay-as-you-go commercial garage. Tr., p. 32. This court concludes, moreover, that §§ 185-10(2), (25) and (26) of the bylaw, are consistent with each other, as applied in this case.

7. Beyond averments that § 185-10 of the bylaw contains inconsistent terminology, plaintiffs also argue that the Permit “contains virtually no conditions to regulate the obvious adverse traffic impacts caused by the [clubhouse],” as well as “noise” and “fumes,” and is, therefore, “arbitrary and capricious.” Plaintiffs’ Post-Trial Brief, Requested Rulings, ¶ 9. Even a cursory review of the conditions cited disposes of this argument, however.

In the case of Roberts v. Southwestern Bell Mobile, 429 Mass. 478 , 485-486 (1999), when discussing the appropriate standard of review, the Court observed as follows:

Massachusetts is one of several states that provide for de novo review of local zoning authority decisions. On appeal…, [however] a judge determines the legal validity of the zoning board decision on the facts found by him; he gives no evidentiary weight to the board’s findings. Judicial review is nevertheless circumscribed: the decision of the board ‘cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ (internal citations omitted).

Thus, although this court makes its findings de novo, it must accord the Board below due deference, and not reverse unless the Board’s decision appears unreasonable in light of those findings. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) (holding special permit decision must be affirmed unless “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary”). The decision below is eminently reasonable on this score.

For example, the number of Club members is strictly limited. (At that, the Locus includes fewer outdoor parking spaces than the permissible number of Club members.) [Note 60] No more than fourteen automobiles, in toto, may be stored on site. [Note 61], [Note 62] These conditions serve to mitigate any possible adverse traffic impact that the clubhouse may have upon the surrounding area. Moreover, as Carlson’s testimony amply demonstrates, the expected trip generation of the project is fewer than that of a single-family home.

As to noise, the Permit mandates that “no outside noise [be] generat[ed] between 5:00 PM and 8:00 AM every day” at the subject parcel, and that any engine idling at the Locus must comply with the strictures of G. L. c. 90, § 16A. Thus, this court disagrees with the plaintiffs assertions that the Permit “does not, in any reasonable manner, address [these] local concerns . . .” Plaintiffs’ Post-Trial Brief, Requested Rulings, ¶ 9.

Accordingly, plaintiffs’ contention that the zoning relief herein reviewed is arbitrary and capricious because it does not properly protect the neighborhood’s interests in guarding against traffic congestion and obnoxious noise is without merit.

For the foregoing reasons, this court concludes that the plaintiffs, either individually, or in the aggregate, have failed to articulate the requisite aggrievement upon which to base their claims of standing. Even if that were not the case, however, the plaintiffs must perforce fail on the merits of their claims.

Consequently, the plaintiffs’ complaint is hereby DISMISSED, and the decision of the Board is hereby AFFIRMED.

This court has found the facts in detail and rendered rulings of law in this decision. With reference to the plaintiffs’ Requests for Findings of Fact and Rulings of Law, to the extent they are inconsistent with this decision, they are hereby denied. [Note 63]

Judgment to issue accordingly.

Harry M. Grossman

Justice

Dated: May 22, 2009