MISC 369211

June 10, 2009


Grossman, J.


Malcolm Kasparian, Jr., the plaintiff appearing pro se in the present action (Kasparian / Plaintiff), filed his Complaint, pursuant to G. L. c. 40A, § 17, seeking to annul the decision of the Town of Lexington Planning Board (Board) that granted the private defendants a Special Permit with Site Plan Review (Special Permit). The Special Permit authorizes the construction of a thirteen-unit condominium complex on property abutting that owned by the Plaintiff. The private defendants, Forest Realty Trust, Lyman Property Holdings, LLC, and Waltham & Lexington Realty Trust (Defendants), filed the instant motion inviting this court to dismiss Plaintiff’s Complaint on grounds that Kasparian is without the requisite standing. This court agrees and accordingly, will accede to the Defendants’ request.

Background and Procedural History

The property that is the subject of the present action (Locus) consists of three lots, numbered 960, 970, and 990 Waltham Street, Lexington, Massachusetts, having a total area of 267,793 square feet. [Note 1] Two of the three lots contain single family dwellings, while the third is presently vacant. [Note 2] The Defendant entities are controlled by various members of the DeVincent family which has held the Locus since the 1930s. [Note 3] The single family dwellings had been leased for approximately thirty (30) years, prior to being vacated by their tenants. [Note 4] According to the Defendants, they sought the zoning relief at issue, due in part at least, to the deteriorating state of the dwellings. [Note 5]

Plaintiff currently resides at 113 Warwick Avenue, [Note 6] Waltham. He asserts standing in this matter as the purported owner of 956 Waltham Street, Lexington (Plaintiff’s Property), which directly abuts the Locus. Plaintiff’s Waltham Street property is improved by a single family dwelling [Note 7] which is unoccupied by the Plaintiff. [Note 8]

The Locus is in a mixed use area of Waltham Street [Note 9] which is a heavily-traveled, north / south thoroughfare. [Note 10] It is two-tenths of a mile away from a large shopping center in Waltham, and one quarter of a mile from entry and exit ramps for Route 2. [Note 11] To the south, the Locus directly abuts the Brookhaven senior living complex, which includes approximately 225 residential units. Beyond the complex is a small office park. [Note 12] A single family residence and an Elks Lodge are situated directly across the street from the Locus. [Note 13] Avalon-Lexington, an apartment complex, consisting of 194 units, is located diagonally across the street from the Locus to the south, while a nursery / farm stand and gas station are located to the north. [Note 14] Thus, Plaintiff’s Property is one of a handful of parcels improved by a single family residence in the immediate vicinity. [Note 15]

Defendants applied for a Special Permit with Site Plan Review and submitted their Definitive Plan for Subdivision Control approval to the Board on October 18, 2007. [Note 16] That Plan depicted the development of thirteen residential units, distributed over five buildings at the Locus. [Note 17] The Board granted the requested relief by a four-to-one vote, [Note 18] Kasparian attended the hearing and voiced his objections to the size and height of the proposed development. [Note 19]

Plaintiff filed his Complaint on February 4, 2008 and submitted his Amended Complaint on March 19, 2008. Defendants filed a Motion to Intervene on April 22, 2008, which was allowed on May 7, 2008. Soon thereafter, on August 7, 2008, citing deficiencies in the notice Plaintiff provided, Defendants moved for dismissal pursuant to Mass. R. Civ. P. 12 (b) (4). By order dated October 14, 2008, that motion was denied.

After the parties engaged in some discovery-related skirmishing, [Note 20] this court heard Defendants’ Motion for Summary Judgment on April 28, 2009. The matter was taken under advisement on that date.

As part of their summary judgment and reply submissions, Defendants have provided this court with evidence of non-aggrievement as to Kasparian. This evidence includes affidavits given by a) a licensed real estate appraiser, J. Scott Tellier (Tellier); [Note 21] b) a licensed professional land surveyor and registered professional engineer, James J. Abely (Abely); [Note 22] c) a registered landscape architect, Roger W. Kallstrom (Kallstrom); [Note 23] d) an owner of the Locus, Raymond E. DeVincent (DeVincent); e) another registered professional engineer, Stephen Poole (Poole); [Note 24] and f) an architect, Adrien J. Mercure (Mercure). [Note 25]

In his affidavit, Tellier attests to having been qualified as an expert on the issue of property valuation by the Middlesex Probate Court and the Middlesex Superior Court, and having conducted over 7,000 residential and 1,500 commercial real estate appraisals. [Note 26] He further represents that he examined Defendants’ plans and submissions to the Board, and that he visited and inspected the Locus in order to gather information upon which he could render an expert opinion. [Note 27] He opines that Defendants’ project will not diminish the value of Plaintiff’s Property, but will rather increase its value. [Note 28] Though Tellier does not specify what methodology he employed in reaching these conclusions, he expressly rests them upon his experience and upon specific facts relating to the proposed project as compared to the existing state of the Locus and the surrounding neighborhood. [Note 29]

Abely contends in his affidavit that the Defendants’ project a) contemplates adequate on-site parking by providing indoor parking for each residential unit and overflow parking on the outside; [Note 30] b) will maintain the same number of curb cuts as already exist at Locus; [Note 31] c) provides for safe site line distances for traffic along Waltham Street; [Note 32] and d) will not visit any traffic-based injury upon the Plaintiff’s Property. [Note 33]

In his affidavit, Kallstrom asserts that the Defendants’ proposed project “meets or exceeds all of the criteria for a special residential development under the Town of Lexington by-laws, including but not limited to: maximum lot coverage, maximum site coverage, maximum gross floor area, parking spaces, and impervious surface ration,” Kallstrom Affidavit, ¶ 8; and to demonstrate this point, he attached the relevant plans. See Kallstrom Affidavit, Exh. “B.” Kallstrom further alleges that, under the plans approved by the Board, Defendants are obliged to screen the Plaintiff’s Property with evergreen plantings. [Note 34] Such plantings are intended to minimize the possible effect of headlights shining from the Locus in the direction of Plaintiff’s Property. [Note 35]

Kallstrom asserts also, that, at its closest, the proposed development will be 58.7 feet away from the parties’ common property line. [Note 36] Per Kallstrom, if the project consisted of a conventional subdivision, Defendants would be permitted as a matter of right to build to within fifteen (15) feet of that boundary line. [Note 37] He indicates, moreover, that the Plaintiff’s Property will have a view of the “gable end of Building 1-5[, which] will be only forty feet (40) wide.” Kallstrom Affidavit, ¶ 14.

Kallstrom also represents that the Town of Lexington Police Department, Fire Department, Engineering Department and Health Department have all approved the project’s plans. [Note 38] Finally, he opines that, as landscaped the proposed development will be a net gain for the immediate neighborhood as compared to what has been at Locus, and will be a direct benefit to surrounding properties including that of the Plaintiff. [Note 39]

The DeVincent affidavit provides a description of the immediate neighborhood. The affiant sought, as well, to explain why his family sought to undertake the proposed development.

In his affidavit, Poole attests to having taken part in the design of the stormwater management plan for Defendants’ project. [Note 40] He provides a description of that system, and the manner in which it is intended operate. [Note 41] He further asserts that the system is fully compliant with relevant state and municipal regulations. [Note 42] Further, after retaining the services of an independent firm to conduct a peer review of the system, the Board found it to be adequate for the proposed development. [Note 43] Poole finally opines that, having completed the drainage calculations for the system himself, it is sufficient for that development, and that no stormwater runoff will reach Plaintiff’s Property. [Note 44]

Mercure’s affidavit is intended to dispel the notion that under a conventional subdivision, a project of Defendants’ density would not be otherwise permitted. [Note 45] Mercure reached this conclusion through his experience in participating in the design of the project, [Note 46] and referring to specific provisions of the Lexington Zoning By-law. [Note 47] According to Mercure’s analysis, a conventional four-lot subdivision could have a “total mass of structures [that would] far exceed[] the mass of the structure in [Defendants’] project,” Mercure Affidavit, ¶ 13, could have greater “total impervious surface,” id., ¶ 14, and could be “no closer than 25 feet of the lot line for 956 Waltham Street without any landscaping requirements,” id., ¶ 15, all as-of-right. He asserts that Defendants’ development meets the requirements of the Lexington Zoning By-law as to height, [Note 48] density (which does not have a unit maximum) [Note 49] and parking. [Note 50]

In response to the Defendants’ submissions, Plaintiff filed a document captioned Affidavit in Opposition to Summary Judgment. This document is without any factual specificity whatever on the issue of aggrievement. Rather, it contains at best, accusations, [Note 51] conclusory statements, [Note 52] legal arguments, [Note 53] and conjecture. [Note 54] As this court will discuss below, Plaintiff has failed utterly to meet his burden of articulating specific facts upon which a reasonable person could conclude that harm will befall him or his property, as a result of the Board’s decision.

Discussion and Analysis

A. Summary Judgment Standard

Summary judgment is to be granted when “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.), citing, e.g., Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).

To meet his burden, the moving party need not proffer affidavits or other similar materials negating the opponent’s claim. Kourouvacilis, 410 Mass. 706 , 713 (1991), citing Celotex Corp., 477 U.S. 317, 323 (1980). In fact, “[t]he burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis, 410 Mass. at 711, citing Celotex Corp., 477 U.S. at 322. See also Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 440 (2006) (reasoning “[b]ecause the defendants met their burden to show an absence of evidence in support of plaintiff’s case, the burden shifted to the plaintiffs to proffer evidence supporting their position”), citing Kourouvacilis, 410 Mass. at 711. Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment is satisfied.” Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-324. [Note 55]

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light, . . . does not entitle that party to a favorable decision,” Catlin v. Board of Registration of Architects, 414 Mass. 1 , 7 (1992), and “[i]n order to defeat [the motion, the non-movant] cannot rely merely on allegations set forth in his pleadings or on bald assertions that facts are disputed.” Young v. Boston University, 64 Mass. App. Ct. 586 , 588 (2005).

Accordingly, once the moving party has met his burden, to withstand summary judgment the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). “In determining whether a factual dispute is ‘genuine,’ the Court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Steffen v. Viking, 441 F.Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Although the court may not pass on the credibility of witnesses or weigh the evidence, Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987), Mass R. Civ. P. 56(c) does permit it to dispose of controversies, if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law. Here, Defendants met their burden of providing this court with sufficient evidence of non-aggrievement such that, if left uncontroverted, this court would find that Plaintiff has not been harmed by the decision of the Board. As the foregoing authorities amply demonstrate, the burden of presenting evidence and of demonstrating that there exists a genuine issue of material fact, shifted to the Plaintiff. As will be detailed below, he failed to carry that burden. Accordingly, this case is ripe for summary judgment.

B. Standing under G. L. c. 40A, § 17

Only persons aggrieved by a decision of the Board, may bring suit seeking judicial review of that determination pursuant to G. L. c. 40A, § 17. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (“[o]nly a 'person aggrieved' may challenge a decision of a board of appeals”). Without such aggrievement, this court lacks subject matter jurisdiction, and cannot reach the substantive issues presented in a claim. See Marrotta v. Board of Appeals of Revere, 336 Mass. 199 , 202-203 (1957) (“[t]he Superior Court had no jurisdiction to consider the case unless an appeal (if not by a municipal officer or board) was taken by an aggrieved person”). [Note 56]

Although the words “person aggrieved” “have a comprehensive meaning and are not constricted to a narrow signification,” Godfrey v. Building Comm'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 upon 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 a “part[y] in interest” deserving notice of proceedings under G. L. c. 40A, § 11, [Note 57] Plaintiff is 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). [Note 58]

Legal arguments and mere allegations are not sufficient to rebut Plaintiff's presumed standing. See Watros, 421 Mass. at 111 (reversing Appeals Court judge's conclusion that presumption of standing may be rebutted by denials in defendant's Answer); Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003) (“speculation [as to whether named grantor possessed proper] authority [to convey a parcel] on behalf of a trust is insufficient to rebut [the] presumption [of standing]”); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999) (“[i]t is not enough simply to raise the issue of standing in a proceeding under § 17 [; t]he challenge must be supported with evidence”).

That said, evidence adduced through discovery may rebut Plaintiff's presumed standing, such as depositions, answers to interrogatories, and expert affidavits, if they shed doubt on plaintiffs' bases for asserting aggrievement. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (“trustee's deposition testimony failed to show that the proposed project will impair any interests of the trustee that are protected by the zoning laws,” rebutting plaintiffs' presumption of standing); Standerwick, 447 Mass. at 35 (“through unchallenged affidavits of its experts, the developer established that the plaintiffs' claimed sources of traffic and drainage problems were unfounded”); Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 622 (1993) (“we treat these submissions [of plaintiffs' depositions] as effectively challenging the plaintiff's standing”); Barvenik, 33 Mass. App. Ct. at 131 n. 6 (observing defendants challenged plaintiffs’ standing “both before trial (on the basis of the plaintiffs’ discovery responses) and after trial (on the basis of trial testimony)”).

In this way, Defendants may rebut Plaintiff's presumption of aggrievement either by providing affirmative evidence—that a basis for aggrievement is not well founded—or by showing, in the negative, that Plaintiff lacks a factual foundation for asserting a claim of aggrievement. See Standerwick, 447 Mass. at 35-36 (“[t]he developer was not required to support his motion for summary judgment with affidavits on each of the plaintiffs' claimed sources of standing; its reliance on the plaintiffs' lack of evidence as to the other claims, obtained through discovery, had equal force”).

Here, as enumerated supra, Defendants supplied this court with five expert affidavits attached to their summary judgment filings, contesting Plaintiff’s claims of aggrievement as to diminution of value, see Tellier Affidavit, ¶ 12; parking, see Abely Affidavit, ¶ 7; traffic safety, see id., ¶¶ 9-10; density, see Kallstrom Affidavit, ¶¶ 8, 10,12, 13,14 & 17; see also Mercure Affidavit, ¶¶ 12, 13, 14 & 15; and flooding, see Poole Affidavit, ¶¶ 4-9. These submissions effectively rebutted Plaintiff’s presumption of standing.

Thusly rebutted, 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 Plaintiff's shoulders to “demonstrate, not merely speculate, that there has been some infringement of his legal rights,” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003), and “that his injury is special and different from the concerns of the rest of the community.” Standerwick, 447 Mass. at 33, quoting Barvenik, 33 Mass. App. Ct. at 132 (internal quotations marks omitted). Finally, as suggested above, establishing that a decision harms Plaintiff in a perceptible way is not sufficient alone to confer standing. He must also show that the injury complained of is to “an interest the zoning scheme seeks to protect.” Standerwick, 447 Mass. at 32.

Although Plaintiff bears 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, Plaintiff 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 precepts in mind, this court turns to the instant controversy.

Though Plaintiff has identified interests generally protected by the Commonwealth’s zoning law, such as a diminution in value, see Tsagronis, 415 Mass. at 330 n. 4 (affirming trial judge’s ruling that finding of diminution in value can confer standing); parking, see Marashlian, 421 Mass. at 722 (ruling “plaintiffs[‘] claim[s concerning] increased traffic and decreased parking availability . . . are legitimately within the scope of zoning laws”); traffic, see id.; and density, see Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11 (2009) (holding “[a]n abutter has a well-recognized legal interest in ‘preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow’”), quoting from Standerwick, 447 Mass. at 31 (ultimately quoting from Tsagronis, 33 Mass. App. Ct. at 59, he has failed to present credible evidence of harm to himself or his property.

First, as to his claimed diminution of value, because all of his allegations as to aggrievement are unsubstantiated, Plaintiff has failed to “tether” his claim of diminution of value to an otherwise legitimate zoning interest, as he must according to Standerwick. See Standerwick, 447 Mass. at 31-32 (holding “[a] claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme”). Second, he asserts that as a home owner he is capable of opining as to the manner in which the addition of an abutting multi-family development will impact the value of his house. See Kasparian Affidavit, ¶ 15 (arguing “[a]s an owner, I am qualified as an expert to testify as to the value of my real property . . .”). The decisional law may support a home owner’s ability to provide an accurate assessment of the current value of his dwelling. 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”). However, this court is unaware of decision holding that a home owner possesses the requisite expertise to project the impact of a proposed neighboring development, upon the value of his home.

On the contrary, this court is invested with broad discretion in determining what subject matters require expert evidence. See Standerwick, 447 Mass. at 36 (affirming trial judge’s determination that expert evidence was necessary to show substantial likelihood of increased crime and vandalism attributable to c. 40B development), citing Barvenik, 33 Mass. App. Ct. at 137 n. 13. This court concludes therefore, that expert knowledge and skill are required if one is to estimate the impact of a nearby development upon his or her property. The summary judgment record is devoid of any indication that the Plaintiff possesses such expert knowledge or skill. Consequently, his conclusory statements in this regard are of no moment. [Note 59]

Plaintiffs claims relative to traffic, parking, and flooding are on much the same footing as the claimed diminution in value. Typically, this court would require expert evidence on such matters, because such topics are generally “beyond the scope of the common knowledge, experience or understanding of the trier of fact without expert assistance.” Barvenik, 33 Mass. App. Ct. at 138 n. 13 (stated in upholding trial judge’s determination that expert evidence required on issue of traffic-based aggrievement). Nothing in the Plaintiff’s presentation would warrant a deviation from this general principle. [Note 60] Accordingly, Plaintiffs’ conclusory and speculative statements on the issues of traffic and parking do not constitute competent evidence, because they bear on an issue outside the realm of common knowledge. Further, even if the Plaintiff did possess the requisite level of expertise, [Note 61] his affidavit lacks the requisite detail to qualify as credible evidence on that subject matter.

As the court in Sheppard emphatically reiterated, density concerns sit squarely within the scope of zoning regulation. See Sheppard, 74 Mass. App. Ct. at 12 (observing “[a]s we previously have recognized, ‘crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal’”), quoting from Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 296 (2008). That said, a § 17 abutter / plaintiff cannot merely invoke the words, “density,” and so conjure up the requisite standing. Rather, he or she “must show that the zoning relief granted adversely affected them directly.” Dwyer. 73 Mass. App. Ct. at 295.

In all the cases upholding standing on the basis of density concerns, the plaintiffs were able to identify the manner in which the density of the permitted development would negatively affect their property directly and with specificity. See Sheppard, 74 Mass. App. Ct. at 12 (finding “[a]s a result [of the variances granted the private defendant], Sheppard’s house, already subject to overcrowding by the buildings flanking its sides, now has another three-story structure fourteen feet behind it, blocking its last relatively open corridor”); Dwyer, 73 Mass. App. Ct. at 296 (describing how Maura Dwyer explained that the increased density of the development next door would affect her privacy in relation to the specific configuration of her home); McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930 , 930-931 (2004) (illustrating how the addition of a floor to applicant’s building “within a bit less than a foot of McGee and Schiavoni’s fourth floor” would significantly reduce “their light, air, view, and privacy”); Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) (relating plaintiffs’ “articulated concerns about increased noise, increased artificial light,…decreased backyard privacy[, and] the environmental implications of two nearby septic systems instead of one” in a particularly dense neighborhood).

In this way, the plaintiffs in the aforementioned cases succeeded to “demonstrate, not merely speculate, that there has been some infringement of [their] legal rights,” Denneny, 59 Mass. App. Ct. at 211, and “that [their] injur[ies were] special and different from the concerns of the rest of the community.” Standerwick, 447 Mass. at 33, quoting Barvenik, 33 Mass. App. Ct. at 132 (internal quotations omitted).

In the case at bar, Kasparian has utterly failed to specify density-related impacts to his property caused by the issuance of the Special Permit, see, supra, notes 51, 52, 53 & 54, let alone how the Board authorized a departure from the by-law’s density related provisions in this case. Accordingly, Plaintiff has failed to adduce evidence sufficient to establish a plausible claim of density-based aggrievement.

Finally, Plaintiff invokes an interest in preserving the integrity of the residential zoning district in which his property resides. See Kasparian Affidavit, ¶ 11 (suggesting that “[a]s an abutter, owner of property located in the same “RO” zoning district, which is a single-family, 30,000 square foot area district, I have a legitimate interest in preserving the integrity of the single family residential district from the intrusion of proposed multi-family housing”). While a line of cases refer to this concern as providing standing under certain circumstances, [Note 62] the Appeals Court in Denneny stated that, although “various cases have alluded to a theoretical interest of a property owner in preserving the ‘integrity of the [zoning] district’ in which his property is located[,] none of those cases recognized [this interest] as a separate and independent basis for standing absent cognizable injury.” 59 Mass. App. Ct. at 215.

As the foregoing analysis amply demonstrates, Kasparian has failed to make such a showing, and cannot avail himself of this theory to circumvent the legal requirement that he articulate specific facts upon which a reasonable person could conclude that the alleged harm will flow from the Board’s decision. In short, Plaintiff has failed to demonstrate the manner in which he will be aggrieved by the grant of the Defendants’ Special Permit.


Based upon the foregoing analysis, this court finds that Plaintiff has suffered no aggrievement as a result of the Board’s decision. Accordingly, as the Plaintiff lacks standing, this court is without the requisite subject matter jurisdiction. It may not therefore, reach the merits of Plaintiff’s appeal.

Accordingly, it is hereby

ORDERED that Defendants’ Motion for Summary Judgment be, and hereby is, ALLOWED, and it is further

ORDERED that Plaintiff’s Complaint be, and hereby is, DISMISSED.

Judgment to enter accordingly.


By the Court. (Grossman, J.)


Deborah J. Patterson


Dated: June 10, 2009


[Note 1] See Statement of Uncontested Facts of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust in Support of Their Motion for Summary Judgment (Defendants’ Statement of Facts), ¶ 2.

[Note 2] See id., ¶ 3.

[Note 3] See id., ¶¶ 4-5.

[Note 4] See id., ¶ 8.

[Note 5] See id., ¶ 9. Accord Affidavit of J. Scott Tellier in Support of the Motion for Summary Judgment of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust (Tellier Affidavit), ¶ 7 (referring to locus as “generally overgrown and . . . not very attractive”).

[Note 6] See Amended Complaint, p. 13.

[Note 7] See Affidavit of Raymond E. DeVincent in Support of the Motion for Summary Judgment of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust (DeVincent Affidavit), ¶ 14.

[Note 8] This conclusion is derived from representations made by Plaintiff relative to service. On a number of occasions, he criticized Defendants for serving him at 956 Waltham Street, Lexington, rather than at his home address, 113 Warwick Avenue, Waltham.

[Note 9] See Tellier Affidavit, ¶ 12.

[Note 10] See Tellier Affidavit, ¶ 10; DeVincent Affidavit, ¶ 16.

[Note 11] See Tellier Affidavit, ¶ 10.

[Note 12] See Tellier Affidavit, ¶ 9; DeVincent Affidavit, ¶ 15.

[Note 13] See Tellier Affidavit, ¶ 9; DeVincent Affidavit, ¶ 15.

[Note 14] See Tellier Affidavit, ¶ 9; DeVincent Affidavit, ¶ 15.

[Note 15] See Tellier Affidavit, ¶ 8; DeVincent Affidavit, ¶ 14.

[Note 16] See id., ¶¶ 1 & 10.

[Note 17] See id., ¶ 10.

[Note 18] See DeVincent Affidavit, Exh. “A,” Special Permit with Site Plan Review (Decision), p. 18.

[Note 19] See Decision, p. 8.

[Note 20] Kasparian filed a Motion Compelling Discovery on September 30, 2008, which this court allowed on December 3, 2008. Plaintiff also filed a Notice of Request for Admissions Admitted on November 24, 2008, which this court denied on December 3, 2008.

[Note 21] See Tellier Affidavit, ¶ 1. See also Tellier Affidavit, Exh. “A” (providing Tellier’s curriculum vitae).

[Note 22] See Affidavit of James J. Abely in Support of the Motion for Summary Judgment of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust (Abely Affidavit), ¶ 1. See also Abely Affidavit, Exh. “A” (supplying Abely’s curriculum vitae).

[Note 23] See Affidavit of Roger W. Kallstrom in Support of the Motion for Summary Judgment of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust (Kallstrom Affidavit), ¶ 1. See also Kallstrom Affidavit, Exh. “A.”

[Note 24] See Affidavit of Stephen Poole in Support of the Motion for Summary Judgment of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust (Poole Affidavit), ¶ 1. See also Poole Affidavit, Exh. “A” (reproducing Poole’s curriculum vitae).

[Note 25] See Affidavit of Adrien Mercure in Support of the Motion for Summary Judgment of Forest Realty Trust, Lyman Property Holdings, LLC and Waltham & Lexington Realty Trust (Mercure Affidavit), ¶ 1. See also Mercure Affidavit, Exh. “A” (submitting a copy of Mercure’s curriculum vitae).

[Note 26] See Tellier Affidavit., ¶¶ 3-4.

[Note 27] See id., ¶ 5.

[Note 28] See id., ¶ 12.

[Note 29] See id.

[Note 30] See Abely Affidavit, ¶ 7.

[Note 31] See id., ¶ 8.

[Note 32] See id., ¶ 9.

[Note 33] See id., ¶ 10.

[Note 34] See Kallstrom Affidavit, ¶ 10

[Note 35] See id., ¶ 17. Kallstrom also contends that “the driveways and traffic flow for [Defendants’] Project have been specifically designed to eliminate instances when automobile lights would be directed towards” Plaintiff’s Property. Ibid. In fact, at the request of the Board, Defendants altered their plans to move the northerly entrance thirty (30) feet away from the property line share by Locus and Plaintiff’s Property. Ibid.

[Note 36] See id., ¶ 12.

[Note 37] See id., ¶ 13.

[Note 38] See id., ¶ 21.

[Note 39] See id., ¶ 23.

[Note 40] See Poole Affidavit, ¶ 4.

[Note 41] See id., ¶¶ 4-6.

[Note 42] See id., ¶ 7.

[Note 43] See id., ¶ 8.

[Note 44] See id., ¶ 9.

[Note 45] See Mercure Affidavit, ¶ 12 (opining “[d]espite [Plaintiff’s] assertions, the Impact for the Project is significantly less than the potential impact of a four lot conventional subdivision”).

[Note 46] See id., ¶ 6.

[Note 47] See id., ¶¶ 8-11.

[Note 48] See Mercure Affidavit, ¶ 16.

[Note 49] See id., ¶¶ 17 & 19.

[Note 50] See id., ¶ 18.

[Note 51] See, e.g., Affidavit in Opposition to Summary Judgment (Kasparian Affidavit), ¶ 2: “Lexington Planning Board exceeded its authority in granting variances as to increased density, number of stories, and excessive height, without statutory hardship finding”; ¶ 4(c): “[t]here are considerable wetlands on this site and brook”; ¶¶ 6(a)-(b): “the scale, massing and detailing of proposed buildings are not compatible with those prevalent in the surrounding area [and the] proposed construction . . . does not conform to good design practices for features such as drainage”; ¶ 7: ‘[z]oning relief granted adversely affected me directly . . .”; ¶ 7(d): “[t]hree and one-half storey buildings proposed exceed two and one-half stories regulated and mandated by the zoning by-law”; ¶ 9: “[m]y objections to the Planning Board Special Permit are based upon the incremental impact upon my property of proposed thirteen (13) large condo dwelling units being built directly behind and along side me, rather than maximum permitted four (4) single family dwelling units”; ¶ 14: “[m]y fears of over-development, decreased privacy, injury to the environment and increased run-off onto my property, increased traffic congestion, increased noise, increased artificial light are neither speculative nor too remote to make a person aggrieved; they are real and in-my-face [because t]he distance of my home to the largest proposed 3 ½ story building is less than the length of this large building itself”; ¶ 17: “Lexington Planning Board exceeds its authority as a general rule in this and many other aspects; it is an outlaw; and has no regard for the rule-of-law where it continues to illegally promulgate and persists in enforcing rules and regulations are specifically found by the Supreme Judicial Court and the Massachusetts Appeals Court to be dead-wrong [and then proceeds to cite decisions]”; ¶ 19: “Lexington Planning Board violates the Open Meeting Law; and has during the pending of this Special Permit (and still to this day) meets during the day, during the week, without required notice, invalidating the Special Permit.”

[Note 52] See, e.g., Kasparian Affidavit, ¶ 2: “I am aggrieved by the proposed Special Permit and I am a person aggrieved”; ¶ 15: “. . . I state that the value of my property will substantially decrease in value (about US$45,00.00 to US$75,000.00) as a result of this proposed project”; ¶ 22: “[Defendants] offered plaintiff-Malcolm Kasparian, Jr. Twenty Thousand ($20,000.00) Dollars and then offered Twenty-Five ($25,000.00) Dollars to withdraw this appeal, which shows they know they are dead-wrong; otherwise they would not offer such a sum; an admission of guilt and wrongdoing”; ¶ 23: “[t]his plaintiff did establish, by direct facts and not speculative personal opinion, that his injury is special and different from the concerns of the rest of the community . . .”

[Note 53] See, e.g., Kasparian Affidavit, ¶ 6: “I am a person who suffers a non-speculative infringement of his legal rights, within the rationale contained in Rhines v. Dighton, Land Court Misc. Case 345085 (2008)”; ¶ 6(e): “Planning Board made no findings, required by the By-law, as to Historical designated Building on their site by the Lexington Historical Commission”; ¶ 7(a): “[t]he maximum development based on impact exceeds the impact of one-family detached dwellings, within the meaning of Lexington Zoning By-law Section 135-48(C)(a)(1-5)”; ¶ 7(c): “I am entitled to compliance with the Lexington Zoning By-law as to density; and should have a reasonable expectation of no more than four (4) single family dwellings on the Developer’s abutting property”; ¶ 8: “[z]oning relief granted adversely affected me directly and that their injury is related to a cognizable interest protected by the applicable Lexington Zoning By-law; and that injury is special and different from all others in the ‘RO’ zoning district”; ¶ 11: “[a]s an abutter, owner of property located in the same “RO” zoning district, which is a single-family, 30,000 square foot area district, I have a legitimate interest in preserving the integrity of the single family residential district from the intrusion of proposed multi-family housing”; ¶ 13: “[t]he Special Permit is a re-zoning; it is spot zoning, and the Special Permit grants variances with out any statutory hardship findings, including but not limited to building height”; ¶ 15: “[a]s an owner, I am qualified as an expert to testify as to the value of my real property . . .”; ¶ 23: “[t]here is a clear, legally cognizable injury and one that is specific to the plaintiff-Kasparian and not to the community in general, within the meaing of Barvenik v. Bd. of Alderman of Newton . . .”

[Note 54] See, e.g., Kasparian Affidavit, ¶ 6(b): “there will be increased storm water run-off, exacerbating flooding down stream and in Waltham”; ¶ 6(d): “there will be anticipated overflow parking problems with a large number of vehicles”; ¶ 9: “[t]he proposed development will increase noise, increase artificial light, increase traffic, increase pedestrian traffic, and decrease backyard and side yard privacy”; ¶ 10: “[t]here will be increased run-off of storm water onto my property, especially from proposed buildings with units 10 to 13, and increased flooding downstream.”

[Note 55] “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purposes.” Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323-324.

[Note 56] See also Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 542 n. 9 (2008) (“aggrievement for purposes of pursuing an appeal under G.L. c. 40A, § 17, is a jurisdictional requirement” [internal quotations omitted]); Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (“[s]tanding as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver) (Abrams, J., Dissenting); Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992) (“'[a[ggrieved person' status is a jurisdictional prerequisite” for § 17 review).

[Note 57] Section 11 states, inter alia, “'[p]arties in interest . . . shall mean petitioners, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner.” G. L. c. 40A, § 11. As indicated above, Plaintiff asserts title to 956 Waltham Street, which directly abuts Locus.

[Note 58] 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”).

[Note 59] Even if he were so qualified, however, his affidavit lacks the level of detail or factual support that this court would require if it were to make a finding regarding a diminution in value.

[Note 60] This court might be open to layperson testimony in this regard, if, for example, the development authorized by a special permit were truly massive in scale, so that an increase in traffic and decrease in area parking would be self-evident. See, e.g., Marashlian, supra (in which the private defendant wished to develop a large hotel in downtown Newburyport). This case does not present such facts.

[Note 61] E.g., if he were a traffic engineer.

[Note 62] Compare Rafferty, 5 Mass. App. Ct. at 630 (plaintiff “entitled to assert his interest in having residence B district in which he owns real estate and resides maintained as such”); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986) (“owners of property located in the same zoning district – a single-family, one-acre district – had a legitimate interest in preserving the integrity of the district from the intrusion of multi-family housing”); with Sherrill House, Inc. v. Bd. of Appeal of Boston, 19 Mass. App. Ct. 274 , 277 (1985) (“[a]s...an institutional user operating under a prior nonconforming use...[plaintiff] has no legitimate interest in preserving the integrity of the district as a residential one”); Harvard Square Defense Fund, 27 Mass. App. Ct. at 495 (“[because] none of the plaintiffs...owns or occupies property in the same zoning district..., none of the plaintiffs can demonstrate a legitimate interest in preserving the integrity of the district”), quoting Murray, supra; Jaffe v. Zoning Bd. of Appeals of Newton, 34 Mass. App. Ct. 929 , 930 (1993) (“standing grounded on [preserving the integrity of the district] not available to a party who does not own or occupy property in the same district”); Denneny, 59 Mass. App Ct. at 215 (noting, even if plaintiff has legitimate interest in the preservation of the integrity of a zoning district, that party must still show “cognizable injury” from the violation of that district's integrity).